Death: The Final Benefit

By: Michael Casto, Associate, Orlando

In fairy-tales and movies, chimney sweeps always wear top hats and tails, and they are covered in soot.  This is not a fairy-tale or Mary Poppins, however, but rather workers’ compensation and real chimney sweeps.  Picture, if you will, Jordan Sean, a 57-year-old employee of Chimney Sweeps, Inc.  Picture Mr. Sean in a top hat and tails too.  Mr. Sean is responsible for cleaning the various residential and industrial chimneys still in use in Ocala, Florida. One day while Mr. Sean was cleaning a particularly filthy smoke stack, a co-worker ignited a pile a trash, which filled the area where Mr. Sean was working with noxious fumes. Mr. Sean sustained a severe lung injury after inhaling the miasma.  The workers’ compensation carrier accepted compensability of the case and authorized treatment with a reputable pulmonologist in Gainesville, FL. The Claimant was treated on a monthly basis for his injuries, but was never taken out of work. His employment continued as normal. Unfortunately, over the following three years his condition began to deteriorate slowly until one day he was hospitalized, and sadly, passed away. In deposition the authorized pulmonologist testified: “In my opinion, Mr. Sean was never the same following the episode of smoke inhalation while at work. His condition grew steadily worse from the date of his industrial accident until he was admitted to the hospital where he passed. It is my expert medical opinion the work-related episode of smoke inhalation was a direct contributing factor to his untimely demise.”

Mr. Sean was survived by his wife, Jean. They had four adult children. Each child had a full-time job, and did not live with Jordan or Jean.  Jean had been unemployed for 7 years. She and Jordan had been living apart for the previous 8 years. Jordan, always the dutiful husband, paid for Jean’s living expenses during that time period.

Jean and her children filed a claim for death benefits upon Mr. Sean’s death, which was denied by the insurance carrier. How should the judge rule?

Florida Statutes, Section 440.16 states, in pertinent part: if an employee dies because of a compensable injury, the worker’s dependents are entitled to compensation up to $150,000.00, plus up to $7,500.00 in funeral expenses. The decedent’s spouse would also be eligible for educational benefits. However, to be compensable death must result from the accident within one year, or must follow continuous disability and occur within 5 years after the accident.

In our case, there is no question the accident was compensable. However, the Claimant continued to work and lived another three years after the accident. Should the 1st DCA uphold the JCC’s denial since the Claimant was not receiving disability benefits? The answer is: NO! In 1974, the Florida Supreme Court clearly stated the term “continuous disability” in §440.16 require only continuous suffering. See In re Lupola, 293 So. 2d 354 (Fla. 1974). Accordingly, the authorized doctor’s testimony the Claimant was “never the same since the accident” would be sufficient to award death benefits.

The next inquiry is: who is entitled to benefits? The statute provides that only dependents of the deceased worker can receive death benefits. Dependents, as defined by the statute, must be related to the Claimant as a spouse, child, parent, brother, sister or grandchild. To be a dependent, a person must also have received substantial and regular support from the deceased worker, and the absence of the support would materially alter the person’s lifestyle. Finally, the support must have been provided regularly by the deceased and the person making a claim to the death benefits must show they reasonably expected the deceased would have continued to provide benefits in the future.

Jean Sean was clearly dependent upon Jordan for support. She was unemployed and Jordan paid for her living expenses. She would only have to show she was married to Jordan at the time of the accident, and at the time of his death to prove her entitlement to death benefits.   The fact she was not living with him does not factor in the judge’s decision-making process. If she can prove they were married, then she is entitled to death benefits.

In this scenario, the adult children would not be entitled to death benefits. Legal dependency ends at age 18 unless the child is a student at an accredited education institution, at which point dependency ends at age 22. In this scenario, the children are all adults, with full-time employment. Therefore, Jean Sean would be entitled to the full amount of benefits under the statute.