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Appeals Panel Decision Manual - Death Benefits Issues

Abbreviation List

Death Benefits Issues

Identity of Legal Beneficiaries. (D01)

Death Benefits Rate Calculation. (D03)

Distribution of Death Benefits. (D04)

Payment to Subsequent Injury Fund. (D05)

Entitlement to and Amount of Burial Benefits (D06)

Other Death Benefits Issues. (D00)

Identity of Legal Beneficiaries (D01)

Death benefits are payable to a legal beneficiary if an employee dies as the result of a compensable injury. Section 408.181(a); APD 000436. A legal beneficiary is a person who is entitled to receive a death benefit under the Act. Section 401.011(29).

Child.

A child is a son or daughter, an adopted child, or a stepchild who is a dependent of the IW. Section 401.011(7). The term "child" also includes a child that was conceived but unborn at the time of the DW's death. APD 011542-s. A child who is eligible to receive death benefits must fall into one of three categories:

1. a minor at the time of the DW's death;
2. a full-time student attending an accredited educational institution under the age of 25; or
3. a dependent of the DW at the time of the DW's death. Section 408.182(f).

A DW's child is not eligible to receive death benefits if his or her parent-child relationship with the DW has been terminated by court order and the child has been adopted by another individual. Patton v. Shamburger, 431 S.W.2d 506 (Tex. 1968); APD 002112. However, a child will remain eligible to receive death benefits if he or she was not adopted by another individual after the parent-child relationship was terminated. APD 991694. Section 132.4(b) requires an individual claiming benefits as the DW's child to submit proof of relationship either to the IC or along with his or her claim for death benefits. An adult child claiming death benefits must additionally present proof under Section 132.2 to establish that at the time of the DW's death he or she was a dependent of the DW at the time of the DW's death. Section 132.4(g). A stepchild must prove the DW was married to the stepchild's parent, and that the stepchild was a dependent of the DW at the time of the DW's death. Section 132.4(d); APD 980224.

Eligible Parent.

[Applies to claims based on a compensable injury that occurs on or after September 1, 2007] [Cross reference: Entitlement to and Amount of Burial Benefits (D06)] If there is no eligible spouse, no eligible child, no eligible grandchild, and no surviving dependents of the DW who are parents, siblings, or grandparents of the DW, death benefits shall be paid in equal shares to the surviving mother or father of the DW, including an adoptive parent or stepparent but not a parent whose parental rights have been terminated, who has received burial benefits under Section 408.186 and who has filed a claim for those benefits with the Division not later than one year from the date of the DW's death from the compensable injury. Sections 408.182(d-1), (d-2), (f)(4). The claim for death benefits must designate all eligible parents and necessary information for payment to the eligible parents; an IC will not be liable for payment to any eligible parent not designated on the claim for death benefits. The commissioner may extend the time for filing a claim for death benefits only if the eligible parent submits proof satisfactory to the commissioner of a compelling reason for the delay. Section 408.182(d-2).

Grandchild.

A DW's grandchild is entitled to receive death benefits if the grandchild was a dependent of the DW at the time of the DW's death unless the grandchild's own parent is eligible for benefits. Section 408.182(f)(2); Section 132.5(a); APD 931114. Section 132.5(b) requires an individual claiming benefits as the DW's grandchild to submit proof of relationship either to the IC or along with his or her claim for benefits; that section also requires the individual to present evidence of a dependent status. Section 132.5(b); APD 931114.

Spouse.

The DW's surviving spouse is entitled to receive death benefits unless

1. the surviving spouse abandoned the DW
2. without good cause
3. for more than one year immediately preceding the DW's death. Section 408.182(f)(3); Section 132.3.

All three elements must be met before a spouse can be denied death benefits. U.S. Fire Ins. Co. v. Williams, 955 S.W.2d 267 (Tex. 1997). Whether or not a surviving spouse has abandoned the DW is a question of fact for the HO to resolve. APD 982874.

Good Cause for Spousal Abandonment, Beneficiary Entitled to Death Benefits.

Although the DW left his wife (claimant one) in 1994, the two were still married at the time of the DW's death from a compensable injury. After leaving claimant one but while they were still married, the DW lived with two other women. Claimant one and the DW had not lived in the same house for more than one year preceding the DW's death. The HO determined that claimant one had abandoned the DW, but found no good cause for the spousal abandonment. The AP affirmed the HO's determination as to spousal abandonment; however, the AP reversed the HO's good cause determination and therefore found good cause for the spousal abandonment. APD 021004.

No Spousal Abandonment.

The DW and his wife separated in September 1990. The DW moved into a separate residence; however, the DW left many of his belongings at the house he and his wife had shared, the DW continued to frequently stay at his wife's house, and the DW maintained sexual relations with his wife. The DW and his wife jointly owned the house as well as a vacation home in New Mexico, where they continued to spend holidays and vacations together. The DW and his wife reconciled when the DW's wife was injured in June 1993, and the DW moved back into the jointly shared house to care for his wife during her convalescence. The DW had filed for divorce in 1991, but did not pursue any action on it until the reconciliation ended later in 1993. The DW's mother had a different version of events. The HO, believing the DW's wife's testimony, determined that the wife had not abandoned the DW. The AP affirmed. APD 941145.

The surviving spouse shall present to the IC a certified copy of the marriage license or satisfactory evidence of a common-law marriage. Section 132.3(a). To prove a common-law marriage, the spouse must present evidence to establish that a declaration of marriage was executed under Family Code Section 2.402, or all of the following three requirements:

  1. the man and woman agreed to be married;
  2. after the agreement they lived together in this state as husband and wife; and
  3. they represented to others that they were married. Tex. Fam. Code Ann. §2.401(a)(2) (Vernon 2006).

If a proceeding in which a marriage is to be proved as provided by §2.401(a)(2) is not commenced before the second anniversary of the date on which the parties separated and ceased living together, it is rebuttably presumed that the parties did not enter into an agreement to be married. Tex. Fam. Code Ann. §2.401(b). Whether or not a common-law marriage existed is a question of fact for the HO to resolve. APD 040801.

Common-Law Marriage.

The DW told the mother of his child that the claimant was the lady he wanted to spend the rest of his life with, and that he considered the claimant his wife. Several documents, including receipts and an obituary notice reflecting the claimant as the DW's wife, were admitted at the CCH. Also admitted were entries in medical records and a report from a rehabilitation nurse that referred to the claimant as the DW's "live in girl friend." The HO determined the claimant was the DW's common-law spouse and entitled to benefits. The AP affirmed. APD 960574.

No Common-Law Marriage.

The claimant and DW began living together around the end of 1999 and agreed to be married in the future at or about December 2000. The claimant and DW held themselves out as husband and wife to their family and friends; however, the claimant and DW kept their relationship a secret from their employer, the IRS, creditors, and banks for various reasons. The HO determined the claimant and DW did not hold themselves out as husband and wife to the public, and therefore did not find the existence of a common-law marriage. The AP affirmed. APD 041223.

Surviving Dependents.

If no eligible spouse, eligible child, or eligible grandchild exists, death benefits will be paid to the DW's surviving parents, stepparents, siblings, or grandparents only if such surviving persons were dependent upon the DW as of the date of the DW's death. Section 408.182(d); Section 132.6(a); APD 020114. Section 132.6(b) requires a parent, stepparent, sibling, or grandparent filing a death benefits claim as a dependent of the DW to present proof of the relationship to the DW either to the IC or with the claim for death benefits. Section 132.6(b) lists evidence to prove relationship. APD 960176. Additionally, the claimant must present proof of his or her dependency on the DW. Section 132.6(b); APD 020114.

Dependency.

A dependent is a person who receives a regular or recurring economic benefit that substantially contributes to the individual's welfare and livelihood. Section 401.011(14).

To be considered a DW's dependent to collect death benefits, a claimant must meet all of the following three requirements:

  1. the claimant must be eligible to receive death benefits;
  2. the claimant has received a regular or recurring economic benefit from the DW; and
  3. the economic benefit the DW gave the claimant must have contributed substantially to the claimant's welfare and livelihood. APD 93845.

An economic benefit is presumed to be regular or recurring if it flowed from the DW to the claimant on an established basis in at least monthly intervals. An economic benefit is presumed to substantially contribute to the claimant's welfare and livelihood if the benefit is equal to or greater than 20% of the claimant's net resources. The burden is on the claimant to prove that benefits that flowed less frequently than once per month were regular or recurring at the time of the DW's death. Likewise, the burden is on the claimant to prove that benefits whose value was less than 20% of the person's net resources contributed significantly to the claimant's welfare and livelihood. Section 132.2(b),(c); APD 992698. The claimant must furnish sufficient information to the Division to identify the claimant's net resources. Section 132.2(e); APD 971148. Section 132.2(e) lists documentation that may be used as proof. If such documentation does not exist, the claimant may provide other documentation or testimony; lack of such documentation will go to the weight the HO will give the claimant's other evidence and testimony. APD 031434. The economic benefits given to the claimant by the DW need not be purely monetary; economic benefits may be given to the claimant in the form of goods and services. Section 132.2(f); APD 93822.

Whether or not a claimant has established that he or she was a dependent of the DW is a question of fact for the HO to resolve. APD 032710. Whether or not a claimant has established that he or she received regular or recurring benefits at the time of the DW's death and whether those benefits substantially contributed to the claimant's welfare and livelihood is a question of fact for the HO to resolve. APD 971244.

Dependency Found.

At the time of his death on August 11, 1995, the DW was unmarried with no children. The DW sent money to the claimant, his mother, in Mexico; however, he did not send money on a monthly basis. Two individuals testified at the CCH that the DW was the claimant's primary supporter. The DW provided the claimant with $9,100 on an intermittent basis from October 19, 1992 through December 22, 1994. The claimant's expenses were $200 per month. The HO determined the DW provided more than 20% of the claimant's net resources, the benefit contributed substantially to the claimant's welfare and livelihood, the benefits were recurring, and therefore found the claimant was a dependent of the DW. The AP affirmed. APD 971244.

Dependency Not Found.

From February 14, 1996 through the DW's death on October 12, 1996, the DW lived with the claimant, his mother. The DW gave the claimant $50 per week, and performed various services for her such as mowing the lawn, repairing her carpet and vehicle, and taking out the trash. The DW also rented movies for the claimant approximately three times per week. The total amount of cash and services the DW provided the claimant was approximately $6,000 to $6,100. The claimant's and husband's combined net income under Section 132.2 for that period of time was $50,000, and their expenses were $38,184.26. The claimant argued that the DW's contributions contributed significantly to her welfare and livelihood if the contribution was viewed in relation to the amount of her discretionary income. The HO found the DW's purpose of his payment and assistance was to cover his living expenses rather than to significantly contribute to his mother's welfare and livelihood for workers' compensation eligibility, and ultimately determined the claimant did not meet her burden of proof to establish that she was a dependent within the meaning of the Act. The AP affirmed, stating the basis for comparison of dependency in Section 132.2 is the claimant's net resources, not her discretionary income. APD 981139.

Death Benefits Rate Calculation (D03)

Subject to 408.061, death benefits are paid to a claimant in an amount equal to 75% of the DW's average weekly wage. Section 408.181(b); APD 992348. This amount is calculated by multiplying the DW's average weekly wage by .75. Section 132.1; APD 992348. The weekly death benefit amount is subject to a maximum amount. See Section 408.061 and Section 132.1.

Distribution of Death Benefits (D04)

Death benefits are distributed according to the priorities set out in TLC Section 408.182 (APD 93822), and Section 132.11.

Redistribution of Death Benefits.

Whenever a legal beneficiary dies or otherwise becomes ineligible to receive death benefits, any remaining death benefits will be redistributed among all remaining eligible legal beneficiaries as provided by TLC Sections 408.182 and 408.183. Section 408.184; Section 132.12(a); APD 981055; APD 92107.

NOTE: In accordance with TLC Section 408.183(b-1), which was enacted by the 85th Texas Legislature in House Bill (HB) 2119, redistribution of death benefits does not apply in the event of the remarriage on or after September 1, 2017, of an eligible spouse of a first responder (defined under TLC Section 504.055) who died in the course and scope of employment or while providing services as a volunteer. This subsection applies regardless of the date on which the death of the first responder took place.

TLC Section 408.183(b-1) was amended further during the 86th Texas Legislature as a result of HB 2503. In accordance with this statutory change, the spouse of an individual described by Government Code Section 615.003(1) or TLC Section 501.001(5)(F), will also be eligible to receive death benefits for life regardless of remarriage. This amendment is effective for remarriages taking place on or after September 1, 2019.

Payment to Subsequent Injury Fund (D05)

Death benefits will be paid to the subsequent injury fund (SIF) if:

  1. the deceased employee has no living legal beneficiaries;
  2. if no claim for death benefits is made in a timely manner; or
  3. if all of the deceased employee's legal beneficiaries cease to be eligible for death benefits before the expiration of the 364 full weeks of death benefits or, in the case of an eligible parent who is not a surviving dependent of the deceased employee, the earlier of the date the eligible parent dies or the date of the expiration of 104 weeks of death benefit payments. TLC Section 403.007(a); TLC Section 408.184(c); TLC Section 408.182(e); 28 Texas Administrative Code (TAC) 132.11(f), 28 TAC Section 132.10(a),(b), TLC Section 408.183(f-1).

Any death benefits remaining to be paid when all legal beneficiaries become ineligible shall be redistributed to the SIF. TLC Section 408.184(c). DWC has no power to determine any other circumstances to which death benefits are payable to the SIF. APD 960592. An ALJ does not have the option to not order payment to the SIF when the facts require such action. APD 971099.

Entitlement To and Amount of Burial Benefits (D06)

A burial benefit is not considered an income benefit. Texas Labor Code (TLC) Section 401.011(25). If the death of an IE results from a compensable injury that occurred before September 1, 1999, the IC shall pay the lesser of the actual costs incurred for reasonable burial expenses or $2,500. If the death of the IE results from a compensable injury that occurred on or after September 1, 1999, and before September 1, 2015, the IC has to pay the lesser of the actual costs incurred for reasonable burial expenses or $6,000. If the death of the IE results from a compensable injury that occurred on or after September 1, 2015, the IC has to pay the lesser of the actual costs incurred for reasonable burial expenses or $10,000. TLC Section 408.186; 28 Texas Administrative Code (TAC) Section 132.13(b). 

If the IE died away from his or her usual place of employment, the person who paid for costs of transporting the IE's body is entitled to reimbursement from the IC. However, the transportation costs as described, are limited to what it would cost to transport the IE's body from the place the IE died to his or her usual place of employment. 28 TAC Section 132.13(c).

Filing a Request for Reimbursement.

A request for payment of burial benefits shall be filed with the IC within 12 months of the date of the death of the IE. Bills showing the amount of burial and transportation costs shall be filed with the request. 28 TAC Section 132.13(a). The IC must either pay or deny the request within seven days of receipt. If the IC denies a claim for burial benefits, the IC must give written notice to the person claiming such benefits and DWC of its denial and the facts supporting such denial. 28 TAC Section 132.13(d).

NOTE: Amendments to 28 TAC Sections 124.2 and 124.3, effective on January 12, 2020, impact the timeframe in which the IC is required to pay or deny a request for payment of burial benefits in certain claims.

For a disease or illness identified by Texas Government Code, Chapter 607, Subchapter B (relating to Diseases or Illnesses Suffered by Firefighters, Peace Officers, or Emergency Medical Technicians), an IC may, under specified circumstances, file a Notice of Continuing Investigation (NOCI) with the IE and DWC. A NOCI must include a statement of all steps the IC has taken to investigate the disease or illness; a list of any claim-specific evidence, releases, or documentation the IC reasonably believes is relevant and necessary to complete its investigation; and contact information for the adjuster. A NOCI may be filed in response to claims for benefits received on or after June 10, 2019. A claim for benefits means the first written notice of injury as provided in 28 TAC Section 124.1.

The IC must file its NOCI within 15 days of its receipt of the notice of injury to postpone the 15-day deadline to initiate benefits or deny the claim. When this occurs, the IC is not required to pay or deny burial benefits within the seven-day period after it receives the payment request, as found in 28 TAC Section 132.13(d). Rather, the IC is required to pay or deny the claim for burial benefits within seven days of the following timeframes:

(1) the date the IC initiated benefits; or
(2) the date the IC filed a notice of denial.

28 TAC Section 124.3(e).

These timeframes may extend beyond seven days after the payment request is received by the IC.

IC Liable for Burial Benefits.

The IE suffered a heart attack. The AP affirmed the ALJ's determination that the IE's death was a result of the compensable heart attack. The IC's argument that reimbursement for burial benefits should be denied was dependent upon its argument that the IE's heart attack was not compensable. Because the IE's death resulted from the compensable injury, the determination that burial benefits should be reimbursed was affirmed by the AP. APD 012383.

The deceased employee was killed when the motorcycle he was riding was struck by another vehicle. The issues in dispute involved whether the employee was in the course and scope of employment at the time of the accident, whether the employee sustained a compensable injury that resulted in his death, and whether the claimant beneficiary was entitled to reimbursement for burial benefits from the IC. The ALJ’s determinations that the employee was not in the course and scope of employment at the time of the accident and that he did not sustain a compensable injury that resulted in his death were reversed and new decisions were rendered by the AP that the employee was in the course and scope of his employment at the time of the accident and that he did sustain a compensable injury that resulted in his death. Because the employee’s injury was found to be compensable, the ALJ’s determination that the claimant beneficiary was not entitled to reimbursement for burial benefits from the IC was also reversed and a new decision was rendered that the claimant beneficiary was entitled to such reimbursement. APD 171936.

IC Not Liable for Burial Benefits.

The IE suffered a heart attack resulting in his death.  The ALJ’s determinations finding the heart attack and subsequent death to be compensable were reversed by the AP, which rendered a decision that the IE’s heart attack and death were not compensable. Also at issue in this case was whether the IC was liable to pay burial benefits. Since the IE’s heart attack and death were determined not to be compensable, the AP held that the IC was not liable to pay burial benefits. APD 91009.

Subclaimant Status.

An employer that paid burial expenses has subclaimant status where a claim for burial benefits is made by the employer but has not been paid by the date of the CCH. APD 002026.

Other Death Benefits Issues (D00)

Duration of Death Benefits.
 
Child. [Cross-reference: Identity of Legal Beneficiaries (D01)]

The duration of death benefits a deceased employee's child is entitled to receive is based on the child's reason for being eligible for death benefits.

Dependent.

A child who is eligible to receive death benefits because he or she was a dependent of the deceased employee on the date of the deceased employee's death is entitled to receive death benefits until the earliest of the following:

  1. the date that the child dies;
  2. if the child has a physical or mental disability making the child a dependent of the deceased employee, the date the child no longer has the disability; or
  3. because of a reason other than a physical or mental disability, the date on which 364 weeks of death benefit payments expire. TLC Section 408.183(e); 28 TAC Section 132.8(d),(f); APD 941246
Disability.

A child "who is eligible to receive death benefits because the child had a physical or mental handicap and was dependent on the employee on the date of the deceased employee's death due to the handicap is entitled to receive death benefits until the earlier of the following:

  1. the date the child is no longer handicapped; or
  2. the date the child dies.” 28 TAC Section 132.8(d); see also TLC Section 408.183(e)
Enrolled in Educational Institution.

A child who is eligible to receive death benefits as a minor and who, at the age of 18, enrolls as a full-time student in an accredited educational institution or who was already enrolled as a full-time student in such an institution on the date of the employee’s death is entitled to receive death benefits until the earliest of the following three situations:

  1. the date the child ceases to be a full-time student in an accredited educational institution for two consecutive semesters not counting summers;
  2. the date the child turns 25; or
  3. the date the child dies. TLC Section 408.183(d); 28 TAC Section 132.8(b); APD 011542-s
Minor.

A child, including a deceased employee’s minor dependent stepchild (see TPCIGA v. Morrison, 212 S.W.3d 349 (Tex. App.-Austin 2006, pet. denied)), who is eligible to receive death benefits because the child was a minor on the date of the employee’s death is entitled to receive death benefits until the child turns 18. However, if the child is enrolled as a full-time student at an accredited educational institution the child is eligible for benefits as described above. TLC Section 408.183(c),(d); 28 TAC Section 132.8(a). Please note that Morrison overrules APD 033232-s.

Eligible Parent (Not Dependent on Deceased Employee).

[Applies to claims based on a compensable injury that occurs on or after September 1, 2007] [Cross reference: Identity of Legal Beneficiaries (D01)]

An eligible parent who is not a surviving dependent of the deceased employee is entitled to receive death benefits until the earlier of the following:

  1. the date the person dies; or
  2. the date of the expiration of 104 weeks of death benefit payments. TLC Section 408.183(f-1).
Grandchild. [Cross-reference: Identity of Legal Beneficiaries (D01)]

An eligible grandchild who was a minor on the date of the deceased employee's death is entitled to receive death benefits until the earlier of the following:

  1. the date the eligible grandchild turns 18; or
  2. the date the eligible grandchild dies. TLC Section 408.183(f); 28 TAC Section 132.9(a).

An eligible grandchild who was not a minor on the date of the employee's death is entitled to receive death benefits until the earlier of the date the eligible grandchild dies or the expiration of 364 weeks of death benefit payments. TLC Section 408.183(f); 28 TAC Section 132.9(b).

Spouse. [Cross reference: Identity of Legal Beneficiaries (D01)]

An eligible spouse is entitled to receive death benefits for the remainder of his or her life unless the spouse has remarried. If the spouse has remarried, he or she will be entitled to a lump sum equivalent to 104 weeks of death benefits. TLC Section 408.183(b). This lump sum amount is calculated by multiplying the amount of death benefits the spouse received the week prior to the remarriage by 104. Any benefits that the IC paid to the spouse after the remarriage will be deducted from the 104-week amount. 28 TAC Section 132.7(d).

NOTE: Notwithstanding TLC Section 408.183(b), above, an eligible spouse who remarries on or after September 1, 2017, is eligible for death benefits for life if the employee was a first responder, as defined under TLC Section 504.055, who died in the course and scope of employment or while providing services as a volunteer.  TLC Section 408.183(b-1). This subsection applies regardless of the date on which the death of the first responder occurred.

Surviving Dependents. [Cross reference: Identity of Legal Beneficiaries (D01)]

In the event that there is no eligible spouse, child, or grandchild of the deceased employee, death benefits shall be paid to surviving dependents of the employee who are parents, stepparents, siblings, or grandparents of the employee. TLC Section 408.182(d).

Those dependents are eligible to receive death benefits until the earlier of:

  1. the date of the eligible dependent's death; or
  2. the expiration of 364 weeks of death benefit payments. TLC Section 408.183(g); 28 TAC Section 132.9(c).
Settlement.

The parties stipulated that the IE sustained a compensable injury in 1997. The legal representatives of the IC and the IE executed a Benefit Dispute Settlement (DWC-25), the claimant beneficiary (the IE's wife) signed the DWC-25 on behalf of the IE under the authority of a Statutory Durable Power of Attorney, and DWC approved the DWC-25 in 2004. The DWC-25 stated in part that the IE and his beneficiaries are not entitled to any additional income benefits including LIBs and death benefits. The IE died in 2006. The AP held that the approval of the DWC-25 does not preclude the claimant beneficiary from pursuing death benefits and burial benefits. The settlement by the decedent does not bar the claim of the decedent's legal beneficiaries. Swain v. Standard Acc. Ins. Co., 81 S.W.2d 258, affirmed by the Texas Supreme Court in 109 S.W.2d 750. The courts have recognized that the legal beneficiaries have an independent cause of action separate from the IE and have stated that the IE can take no action that would negatively affect the rights of his or her beneficiaries to collect benefits by reason of his or her death. Maryland Cas. Co. v. Stevens, 55 S.W.2d 149 (Tex. Civ. App.-Eastland 1932, writ ref'd) and American Motorists Ins. Co. v. Villagomez, 398 S.W.2d 742 (Tex. 1966). APD 071277-s.

For more information, contact: apdmanual@tdi.texas.gov