2020 Georgia Code
Title 34 - Labor and Industrial Relations
Chapter 9 - Workers' Compensation
Article 7 - Compensation Schedules
§ 34-9-265. Compensation for Death Resulting From Injury and Other Causes; Penalty for Death From Injury Proximately Caused by Intentional Act of Employer; Payment of Death Benefits Where No Dependents Found

Universal Citation: GA Code § 34-9-265 (2020)
  1. When an employee is entitled to compensation under this chapter for an injury received and death ensues from any cause not resulting from the injury for which he or she was entitled to compensation, payments of the unpaid balance for such injury shall cease and all liability therefor shall terminate.
  2. If death results instantly from an accident arising out of and in the course of employment or if during the period of disability caused by an accident death results proximately therefrom, the compensation under this chapter shall be as follows:
    1. The employer shall, in addition to any other compensation, pay the reasonable expenses of the employee's burial not to exceed $7,500.00. If the employee leaves no dependents, this shall be the only compensation;
    2. The employer shall pay the dependents of the deceased employee, which dependents are wholly dependent on his or her earnings for support at the time of the injury, a weekly compensation equal to the compensation which is provided for in Code Section 34-9-261 for total incapacity;
    3. If the employee leaves dependents only partially dependent on his or her earnings for their support at the time of the injury, the weekly compensation for these dependents shall be in the same proportion to the compensation for persons wholly dependent as the average amount contributed weekly by the deceased to the partial dependents bears to the deceased employee's average weekly wages at the time of the injury; and
    4. When weekly payments have been made to an injured employee before his or her death, compensation to dependents shall begin on the date of the last of such payments; but the number of weekly payments made to the injured employee under Code Section 34-9-261, 34-9-262, or 34-9-263 shall be subtracted from the maximum 400 week period of dependency of a spouse provided by Code Section 34-9-13; and in no case shall payments be made to dependents except during dependency.
  3. The compensation provided for in this Code section shall be payable only to dependents and only during dependency.
  4. The total compensation payable under this Code section to a surviving spouse as a sole dependent at the time of death and where there is no other dependent for one year or less after the death of the employee shall in no case exceed $270,000.00.
  5. If it shall be determined that the death of an employee was the direct result of an injury proximately caused by the intentional act of the employer with specific intent to cause such injury, then there shall be added to the weekly income benefits paid to the dependents, if any, of the deceased employee a penalty of 20 percent; provided, however, such penalty in no case shall exceed $20,000.00. For the purpose of this subsection, an employer shall be deemed to have intended an injury only if the employer had actual knowledge that the intended act was certain to cause such injury and knowingly disregarded this certainty of injury. Nothing in this subsection shall limit the effect of Code Section 34-9-11.
  6. Each insurer or self-insurer which, in a compensable death case, finds no dependent or dependents qualifying to receive dependency benefits shall pay to the State Board of Workers' Compensation one-half of the benefits which would have been payable to such dependent or dependents or the sum of $10,000.00, whichever is less. All such funds paid to the board shall be deposited in the general fund of the state treasury. If, after such payment has been made, it is determined that a dependent or dependents qualified to receive benefits exist, then the insurer or self-insurer shall be entitled to reimbursement by refund for moneys collected in error.

(Ga. L. 1920, p. 167, § 38; Ga. L. 1922, p. 190, § 4; Ga. L. 1923, p. 92, § 4; Code 1933, § 114-413; Ga. L. 1939, p. 234, § 1; Ga. L. 1949, p. 1357, § 3; Ga. L. 1955, p. 210, § 4; Ga. L. 1963, p. 141, § 9; Ga. L. 1968, p. 3, § 3; Ga. L. 1973, p. 232, § 6; Ga. L. 1974, p. 1143, § 9; Ga. L. 1975, p. 190, § 6; Ga. L. 1982, p. 3, § 34; Ga. L. 1983, p. 700, § 2; Ga. L. 1985, p. 727, § 11; Ga. L. 1988, p. 660, § 1; Ga. L. 1992, p. 1942, § 23; Ga. L. 1995, p. 642, § 11; Ga. L. 1996, p. 1291, § 13; Ga. L. 1998, p. 1508, § 8; Ga. L. 1999, p. 817, § 9; Ga. L. 2000, p. 1321, § 7; Ga. L. 2004, p. 631, § 34; Ga. L. 2006, p. 676, § 4/HB 1240; Ga. L. 2015, p. 1079, § 5/HB 412; Ga. L. 2016, p. 287, § 5/HB 818; Ga. L. 2019, p. 798, § 6/SB 135.)

The 2015 amendment, effective July 1, 2015, substituted "$220,000.00" for "$150,000.00" at the end of subsection (d).

The 2016 amendment, effective July 1, 2016, substituted "$230,000.00" for "$220,000.00" at the end of subsection (d).

The 2019 amendment, effective July 1, 2019, substituted "$270,000.00" for "$230,000.00" at the end of subsection (d).

Cross references.

- Persons presumed dependent, § 34-9-13.

Editor's notes.

- Ga. L. 1995, p. 642, § 13, not codified by the General Assembly, provides for severability.

Law reviews.

- For article, "Actions for Wrongful Death in Georgia," see 9 Ga. B. J. 368 (1947). For article surveying developments in Georgia workers' compensation law from mid-1980 through mid-1981, see 33 Mercer L. Rev. 323 (1981). For review of 1998 legislation relating to labor and industrial relations, see 15 Ga. St. U.L. Rev. 185 (1998). For annual survey of workers' compensation law, see 57 Mercer L. Rev. 419 (2005). For annual survey on workers' compensation, see 65 Mercer L. Rev. 311 (2013). For note on the 1992 amendment of this Code section, see 9 Ga. St. U.L. Rev. 285 (1992). For note on the 1995 amendment of this Code section, see 12 Ga. St. U.L. Rev. 280 (1995). For comment criticizing Hartford Accident & Indem. Co. v. Braswell, 85 Ga. App. 487, 69 S.E.2d 385 (1952), see 4 Mercer L. Rev. 215 (1952). For comment on Lockheed Aircraft Corp. v. Marks, 88 Ga. App. 167, 76 S.E.2d 507 (1953), see 16 Ga. B. J. 215 (1953).

JUDICIAL DECISIONS

ANALYSIS

  • General Consideration
  • Death Arising Out of and in the Course of Employment
  • Determination of Dependency
  • Compensation Awarded

General Consideration

Limitation of benefits to dependents constitutional.

- Because the Workers' Compensation Act's, O.C.G.A. § 34-9-1 et seq., differing treatment of dependent and non-dependent heirs is not irrational and serves the legitimate government purpose of workers' compensation, the Act's limitation on recovery by non-dependent heirs does not violate the due process or equal protection rights guaranteed by the United States Constitution. Barzey v. City of Cuthbert, 295 Ga. 641, 763 S.E.2d 447 (2014).

Discrimination against nonresident aliens lawful.

- Former O.C.G.A. § 34-9-265(b)(5) clearly discriminated between U.S. and Canadian citizens and residents on the one hand and all other nonresident aliens on the other. However, the discrimination was not an unlawful one, as the equal protection clause did not extend to nonresident aliens. Barge-Wagener Constr. Co. v. Morales, 263 Ga. 190, 429 S.E.2d 671 (1993).

Statutory rights.

- Workers' compensation is a creature of statute. The rights created therein not existing at common law are only such as are set forth in its provisions. Turner v. United States Fid. & Guar. Co., 125 Ga. App. 371, 187 S.E.2d 905 (1972).

Widow not barred from acting as personal representative of estate and for herself individually.

- Fact that a widow acted in the capacity of the personal representative of the estate in collecting compensation, and for herself individually in collecting the benefits due under this section, was no bar to any part of such an action, since strictness of pleading and procedure was not required before the board. Hartford Accident & Indem. Co. v. Braswell, 85 Ga. App. 487, 69 S.E.2d 385 (1952), for comment, see 4 Mercer L. Rev. 215 (1952).

Limitation of damages for silicosis and asbestosis.

- Until the legislature adopts a definition of "transitory period" as ending when the benefits payable for silicosis and asbestosis under former § 34-9-334 became equal to those payable for other injuries and diseases, or repeals the section altogether, the ceiling contained therein applies to silicosis or asbestosis claims and subjects them to a lower maximum recovery than disability claims due to other injuries or diseases. Hudson v. Vulcan Materials Co., 179 Ga. App. 341, 346 S.E.2d 117 (1986) (decided prior to 1987 repeal of § 34-9-334).

Stroke.

- Court did not err in affirming the denial of workers' compensation benefits because the evidence linking stress to the employee's stroke was conflicting; the evidence supported the conclusion that stress - whether job-related or otherwise - did not contribute to the employee's condition. Pitts v. City of Rome, 256 Ga. App. 278, 568 S.E.2d 167 (2002).

Cited in United States Fid. & Guar. Co. v. Washington, 37 Ga. App. 140, 139 S.E. 359 (1927); McBrayer v. Columbia Cas. Co., 44 Ga. App. 59, 160 S.E. 556 (1931); Tillman v. Moody, 181 Ga. 530, 182 S.E. 906 (1935); London Guarantee & Accident Co. v. Boynton, 54 Ga. App. 419, 188 S.E. 265 (1936); Strickland v. Metropolitan Cas. Ins. Co., 54 Ga. App. 866, 189 S.E. 424 (1936); Dunn v. American Mut. Liab. Ins. Co., 64 Ga. App. 509, 13 S.E.2d 902 (1941); Bituminous Cas. Corp. v. Lockett, 65 Ga. App. 829, 16 S.E.2d 614 (1941); New Amsterdam Cas. Co. v. Davis, 67 Ga. App. 518, 21 S.E.2d 256 (1942); Wilson v. Maryland Cas. Co., 71 Ga. App. 184, 30 S.E.2d 420 (1944); Mays v. Glens Falls Ins. Co., 81 Ga. App. 478, 59 S.E.2d 286 (1950); McDonald v. Travelers Ins. Co., 81 Ga. App. 614, 59 S.E.2d 537 (1950); Liberty Mut. Ins. Co. v. Haygood, 81 Ga. App. 726, 59 S.E.2d 731 (1950); Great Am. Indem. Co. v. Usry, 87 Ga. App. 821, 75 S.E.2d 270 (1953); Grooms v. Globe Indem. Co., 92 Ga. App. 387, 88 S.E.2d 504 (1955); Globe Indem. Co. v. Reid, 92 Ga. App. 828, 89 S.E.2d 905 (1955); Selig Co. v. McKissic, 94 Ga. App. 215, 94 S.E.2d 51 (1956); Pacific Employers Ins. Co. v. West, 213 Ga. 296, 99 S.E.2d 89 (1957); Yates v. United States Rubber Co., 100 Ga. App. 583, 112 S.E.2d 182 (1959); Davis v. Cobb County, 106 Ga. App. 336, 126 S.E.2d 710 (1962); Bell v. Liberty Mut. Ins. Co., 108 Ga. App. 173, 132 S.E.2d 538 (1963); J.M. Tull Metals Co. v. United States, 123 Ga. App. 76, 179 S.E.2d 543 (1970); Worley v. Save Oil Co., 231 Ga. 227, 200 S.E.2d 896 (1973); Worley v. Providence Wash. Ins. Co., 130 Ga. App. 607, 203 S.E.2d 910 (1974); Flint River Mills v. Henry, 239 Ga. 347, 236 S.E.2d 583 (1977); Dixie-Cole Transf. Trucking Co. v. Fudge, 147 Ga. App. 306, 248 S.E.2d 694 (1978); Howard v. Alfrey, 697 F.2d 1006 (11th Cir. 1983).

Death Arising Out of and in the Course of Employment

This section dealt with cases when death resulted from an accident. American Mut. Liab. Ins. Co. v. Castleberry, 46 Ga. App. 60, 166 S.E. 670 (1932).

Accident must arise out of and in course of employment.

- In order for a death to be compensable to a dependent under the provisions of the workers' compensation law (see now O.C.G.A. § 34-9-1 et seq.), it must result instantly from an accident arising out of and in the course of employment, or later result proximately therefrom; and the burden of proof is on the claimant to show that the death so resulted. Johnson v. Fireman's Fund Indem. Co., 79 Ga. App. 187, 53 S.E.2d 204 (1949); Liberty Mut. Ins. Co. v. Harden, 85 Ga. App. 830, 70 S.E.2d 89 (1952).

Factual issues existed precluding summary judgment.

- Trial court properly denied summary judgment to an employer in a wrongful death action because questions of fact existed as to whether the deceased employee had left work for the day or was merely on a break and whether workers' compensation was applicable following the employee being shot and killed at a convenience store associated with the employer. Dixie Roadbuilders, Inc. v. Sallet, 318 Ga. App. 228, 733 S.E.2d 511 (2012).

It is not necessary that the compensable injury was sole cause of employee's death, but merely that the injury lighted up, activated, or aggravated a disease or dormant condition that contributed to the employee's death. B.P.O. Elks Lodge No. 230 v. Foster, 91 Ga. App. 696, 86 S.E.2d 725 (1955).

If employment contributes to injury, it is an "accident" in the terms of the law, regardless of whether or not some other factors united with the employment to produce it. Nor must the accident suffered be one caused by external factors alone, such as a blow or other external violence, but a stroke, a ruptured blood vessel or a heart attack may, under proper circumstances, be the subject matter of compensation. Thompson-Weinman Co. v. Yancey, 90 Ga. App. 213, 82 S.E.2d 725 (1954).

Injury which aggravates a pre-existing disease is compensable when such an increased result would not have occurred except for the injury. McDaniel v. Employers Mut. Liab. Ins. Co., 104 Ga. App. 340, 121 S.E.2d 801 (1961).

Benefits cease if death results from causes other than injury.

- Practically all workers' compensation awards are contingent upon one or more of many varying conditions. Thus, an award for permanent total disability under former Code 1933, § 114-404 (see now O.C.G.A. § 34-9-261) was contingent upon the continuance of total incapacity, and if death resulted from causes other than the injury sustained by the workman, the benefits cease. Hartford Accident & Indem. Co. v. Fuller, 102 Ga. App. 384, 116 S.E.2d 628 (1960).

Claimant must show that death resulted from employment accident.

- Claimant must always carry the burden of showing that death resulted from an accident arising out of and in the course of the employment. Hardware Mut. Cas. Co. v. King, 104 Ga. App. 252, 121 S.E.2d 336 (1961).

Presumption that death arose from employment if deceased found when reasonably expected to be.

- When an employee is found dead in a place where the employee might reasonably be expected to be in the performance of the employee's duties, the natural presumption arises that the employee's death arose out of and in the course of employment. Hardware Mut. Cas. Co. v. King, 104 Ga. App. 252, 121 S.E.2d 336 (1961).

Death must be unexplained.

- Presumption that when an employee is found dead in a place where the employee might reasonably have expected to be in the performance of the employee's duties it is presumed the death arose out of employment will be applied only when the death is unexplained. Odom v. Transamerica Ins. Group, 148 Ga. App. 156, 251 S.E.2d 48 (1978).

Just as reasonable to presume that death resulted from natural causes.

- When there is no evidence establishing the cause of death, and it is just as reasonable to presume that the death resulted from natural causes not associated with the employment as from a cause or causes to which the employment contributed, then the claimant has failed to carry the burden of proving that the employee met death as the result of an accident arising out of the employment. Hardware Mut. Cas. Co. v. King, 104 Ga. App. 252, 121 S.E.2d 336 (1961).

Sufficient to show such exertion of employment as raises inference that exertion caused heart attack.

- When compensation is sought under the provisions of the Workers' Compensation Law (see now O.C.G.A. § 34-9-1 et seq.) for the death of an employee by reason of a heart attack, which it is contended was proximately contributed to by the exertion of the employment, it is sufficient either to show an exertion as raises a natural inference through human experience of such a causation, or to show by expert medical testimony that the amount of exertion actually existing might be treated as a causative factor. Refrigerated Transp. Co. v. Shirley, 93 Ga. App. 334, 92 S.E.2d 26 (1956).

Upon showing of connection between injury and death, burden shifts to employer to prove otherwise.

- Claimant in a workers' compensation case having proved the injury and subsequent pain, disability, and death, and that the deceased's pain began the day deceased was injured and lasted until death, the burden was upon the employer and the insurance carrier, when the decedent died from a brain tumor, to prove, as a matter of affirmative defense, that some intervening or preexisting agency was the cause of death, rather than the wrenching of the decedent's back proved by the plaintiff. Royal Indem. Co. v. Land, 45 Ga. App. 293, 164 S.E. 492 (1932).

Sufficient testimony authorizing the board to infer that the employee began to show symptoms of heart disease almost immediately after the employee's injury, and that these symptoms continued and persisted until they culminated in the employee's first heart attack and subsequently resulted in the employee's fatal illness, creates a presumption of a causal connection between the employee's injury and the employee's death and casts the burden upon the employer of showing, as a matter of affirmative defense, that some intervening or preexisting agency was the cause of death, rather than the injury. Zurich Ins. Co. v. Hightower, 113 Ga. App. 503, 148 S.E.2d 464 (1966).

Error not to accept uncontradicted opinion of cardiologists of connection between work and heart attack.

- When the evidence revealed without contradiction that the claimant's spouse reported for work and that the spouse was pursuing the spouse's duties when the spouse suffered a heart attack, and the employer's records, which were introduced in evidence, so recited, and the opinions given by the doctors who testified as experts were hypothesized from those records, as well as from the general question as to whether exercise in general could occasion such a heart attack as was suffered by the claimant's spouse, the director (now administrative law judge) erred in refusing to accept the uncontradicted opinion of the cardiologists that there was a definite connection between the work which the employee had done in the course of employment and the heart attack which caused the spouse's death, and in denying compensation. Crawford W. Long Hosp. v. Mitchell, 100 Ga. App. 276, 111 S.E.2d 120 (1959).

Suicide caused by compensable injury.

- Because sufficient evidence supported a finding that the decedent's tinnitis resulted from an automobile accident which occurred in the course of employment, and that such deprived the decedent of normal judgment, the trial court did not err in awarding the surviving spouse both outstanding TTD and statutory death benefits based on the decedent's suicide. Moreover: (1) the question of whether the decedent's suicide was a reasonably foreseeable result of the automobile accident was irrelevant; and (2) any finding that the decedent's suicide constituted an unforeseeable intervening cause would serve only to relieve the tortfeasor of liability, but would not bear on the question of whether the death was compensable. Bayer Corp. v. Lassiter, 282 Ga. App. 346, 638 S.E.2d 812 (2006).

Employee struck by train when arriving on premises.

- Ingress/egress rule applied and an employee's death from being struck by a train was compensable because the employee had no alternative route to the building but to cross the tracks, the entrance road crossing the railroad track was part of the leased business premises, the employee arrived just before the employee's shift started, and the employer had control over the entrance road pursuant to the lease. Bonner-Hill v. Southland Waste Sys. of Ga., Inc., 330 Ga. App. 151, 767 S.E.2d 803 (2014).

Determination of Dependency

Dependency, in whole or part, is essential before award can be made to a child under the workers' compensation law (see now O.C.G.A. § 34-9-1 et seq.). New Amsterdam Cas. Co. v. Freeland, 216 Ga. 491, 117 S.E.2d 538 (1960).

Dependency contingent on whether dependents in fact supported by decedent's earnings.

- Dependency does not depend on whether the alleged dependents could support themselves without the decedent's earnings, or so reduce their expenses that they would be supported independent of the decedent's earnings, but on whether they were in fact supported in whole or in part by such earnings, under circumstances indicating an intent on the part of the deceased to furnish such support. Insurance Co. of N. Am. v. Cooley, 118 Ga. App. 46, 162 S.E.2d 821 (1968).

Question of dependency is one of fact to be determined from the amounts, frequency, and continuity of actual contributions of cash or supplies, the needs of the claimant, and the legal or moral obligation of the employee. Maryland Cas. Co. v. Campbell, 34 Ga. App. 311, 129 S.E. 447 (1925).

Question of dependency is one of fact, to be determined according to the facts and circumstances of each particular case, from the amounts, frequency, and continuity of actual contributions of cash and supplies, the need of the claimant, and the legal or moral obligations of the employee. Insurance Co. of N. Am. v. Cooley, 118 Ga. App. 46, 162 S.E.2d 821 (1968).

Dependency not necessarily negatived by fact of employee's unemployment.

- While dependency must have actually existed at the time of the accident and three months prior thereto, physical contributions of cash or supplies are only evidential of such dependency, and the fact that they were temporarily interrupted by unemployment, or some other cause independent of the will and the desire of the employee, and were not made continuously for three months immediately preceding the injury, will not necessarily negative dependency when other evidence showed such dependency. The evidence in this case was sufficient to show the dependency of the parent on their child. Maryland Cas. Co. v. Campbell, 34 Ga. App. 311, 129 S.E. 447 (1925).

Claimant not "wholly dependent" when claimant receives substantial outside contributions.

- Claimant was not "wholly dependent," within the meaning of subsection (b) of this section, when claimant earned a substantial part of claimant's support or received substantial contributions from sources other than the employee. Travelers Ins. Co. v. Campbell, 114 Ga. App. 601, 152 S.E.2d 430 (1966).

If contributions insubstantial or sporadic.

- Contributions to the claimants by the employee's brothers, if insubstantial or sporadic, would not preclude a finding that claimants were wholly dependent upon the employee. Travelers Ins. Co. v. Campbell, 114 Ga. App. 601, 152 S.E.2d 430 (1966).

Workers' compensation provisions, while complete within itself, excludes from consideration other statutory provisions with regard to inheritance of a married person from a deceased spouse, in determining whether or not the married person is entitled to share as a dependent in the award of compensation for the spouse's death. Atkinson v. Atkinson, 47 Ga. App. 345, 170 S.E. 527 (1933).

Employee's natural children legally adopted by another.

- When the stipulated and agreed facts show that the natural children of an employee, who was killed as the result of an injury arising out of and in the course of employment, are at the time of the death of the employee the legally adopted children of another wholly supported by their adoptive parents (their natural parents being divorced), the children are not entitled to receive compensation. New Amsterdam Cas. Co. v. Freeland, 216 Ga. 491, 117 S.E.2d 538 (1960).

Secondary dependents receive benefits if no primary beneficiary compensated.

- Secondary dependents are entitled to benefits only if there is no eligible primary beneficiary or the primary beneficiary has waived that beneficiary's right to compensation. O'Steen v. Florida Ins. Exch., 118 Ga. App. 562, 164 S.E.2d 334 (1968).

Wholly dependent minor child entitled to full benefits, to exclusion of partially dependent mother.

- In a workers' compensation case, an unmarried child under the age of 18 of the deceased employee was conclusively presumed to be wholly dependent upon the deceased employee by the provisions of the law, and was entitled to full death benefits until the child reached the age of 18, to the exclusion of the parent of the deceased employee, when there was a finding by the state board, supported by evidence, that the parent had been only partially dependent upon the deceased employee. Mays v. Glen Falls Indem. Co., 77 Ga. App. 332, 48 S.E.2d 550 (1948).

Claimant living with employee, but not holding out as married.

- When the board finds that the claimant and the deceased employee had not contracted a valid marriage because, though they lived together, the evidence showed they had not held themselves out as married, the claimant is not entitled to compensation, even if the claimant was actually dependent on the employee. Georgia Cas. & Sur. Co. v. Bloodworth, 120 Ga. App. 313, 170 S.E.2d 433 (1969).

When dependency ceases.

- Dependency ceases at the age of 18 unless the child is physically or mentally incapacitated from earning a livelihood, and this is to be determined as of the date of death. Turner v. United States Fid. & Guar. Co., 125 Ga. App. 371, 187 S.E.2d 905 (1972). But see § 34-9-13 as amended in 1985.

Evidence authorized the finding that first cousin of deceased employee was totally dependent upon deceased at the time of death. Bituminous Cas. Corp. v. Williams, 80 Ga. App. 337, 56 S.E.2d 157 (1949).

Dependents who are not citizens.

- In the absence of dependents who are not citizens according to the strictures of former O.C.G.A. § 34-9-265(b)(5), the limitation on compensation contained therein was inapplicable. Accordingly, the superior court erred in affirming the decision of the full board which applied this provision so as to reduce the award to an insurer when the deceased employee was an Ethiopian national who had sent money to the employee's parents in that country, although they were never shown to be the employee's dependents. Georgia Subsequent Injury Trust Fund v. Bottle Whse., Inc., 209 Ga. App. 244, 433 S.E.2d 84 (1993).

Compensation Awarded

Paragraph (b)(1) of this section did not limit the medical expenses of the last illness in a case when death resulted from the accident. United States Fid. & Guar. Co. v. Taylor, 101 Ga. App. 544, 114 S.E.2d 441 (1960).

Denial of common-law remedy to heirs of decedent does not violate the equal protection clause. Massey v. Thiokol Chem. Corp., 368 F. Supp. 668 (S.D. Ga. 1973).

Dependents may recover unpaid or uncollected award due employee.

- While 300 (now 400) weeks from the date of the injury was the limited period in which dependents could recover under the workers' compensation law (see now O.C.G.A. § 34-9-1 et seq.), this did not mean they could not recover an unpaid or uncollected award due the employee in the employee's lifetime. Columbia Cas. Co. v. Whiten, 51 Ga. App. 42, 179 S.E. 630 (1935).

Compensation benefits payable to dependents are computed by provisions effective at time deceased sustained accident. Zurich Ins. Co. v. Spence, 122 Ga. App. 464, 177 S.E.2d 503 (1970).

Employee cannot bar dependents by employee's own acts during employee's lifetime, every contract of employment being presumed to have been made subject to the provisions of the workers' compensation law (see now O.C.G.A. § 34-9-1 et seq.). Atkinson v. Atkinson, 47 Ga. App. 345, 170 S.E. 527 (1933).

Amount awarded to partial dependents is not affected by contributions made to claimants by others. Maryland Cas. Co. v. Bess, 33 Ga. App. 798, 127 S.E. 828 (1925).

If deceased employee contributed entire wages to partial dependents, award equals amount of total dependency.

- Under this section, when the deceased employee contributed the employee's entire wages to persons who were partially dependent upon the employee, there is no difference between the amount of compensation to be awarded and that which the claimants should receive as total dependents. Maryland Cas. Co. v. Bess, 33 Ga. App. 798, 127 S.E. 828 (1925); Commercial Union Ins. Co. v. Brock, 134 Ga. App. 903, 216 S.E.2d 700 (1975).

Contribution unaffected by mere fact minor employee regularly received pocket money from wages.

- Mere fact that a minor employee regularly received pocket money out of wages which the minor contributed to the common family fund does not mean the employee contributed less than the employee's entire wages to the employee's partial dependents. Commercial Union Ins. Co. v. Brock, 134 Ga. App. 903, 216 S.E.2d 700 (1975).

Cost of employee's maintenance as member of family not considered in determining compensation.

- When an employee 19 years of age lived in the employee's parent's household as a member of the family, all of whom were dependent upon the employee's earnings for support, and the employee's earnings were contributed to that cause, the cost of the employee's own maintenance as a member of the family was not to be considered in determining the amount of compensation to be awarded upon the claim of the parent made in behalf of the parent, the parent's spouse, and other members of the family as dependents. Maryland Cas. Co. v. Bess, 33 Ga. App. 798, 127 S.E. 828 (1925).

For information on the method of computation of partial dependents before the 1922 amendment of Ga. L. 1920, p. 167, § 38, see Aetna Life Ins. Co. v. Smith, 29 Ga. App. 628, 116 S.E. 322 (1923).

Value of deceased's room and board not deducted in computing total dependency award.

- State board did not err in not deducting the value of the deceased's board and lodging, the deceased having resided with the claimant and having been furnished meals by the claimant, in computing the award of compensation; in cases of total dependency, the amount of the award is not computed on the basis of the proportion of the amount of contributions to average weekly wages. Bituminous Cas. Corp. v. Williams, 80 Ga. App. 337, 56 S.E.2d 157 (1949).

Benefits due dependents calculated from date of injury.

- When an employee receives an injury arising out of and in the course of employment and at a later date dies as a result of such an injury, the benefits, if any, due the employee's dependents are calculated from the date of the injury and not the date of the employee's death. Armour & Co. v. Cox, 96 Ga. App. 829, 101 S.E.2d 733 (1958).

Section awards weekly payments for maximum number of weeks.

- This section did not award a maximum sum, but merely called for payments weekly for a maximum number of weeks only. Because of modifications, an award of lump sum amounts, and other changes, the maximum amount of payments (400 weeks) may never be made. Hartford Ins. Co. v. White, 142 Ga. App. 307, 235 S.E.2d 740 (1977).

"During dependency."

- When the dependency of a person was fixed by former Code 1933, § 114-414 (see now O.C.G.A. § 34-9-13) as a matter of law, the term "during dependency" in subsection (c) of former Code 1933, § 114-413 (see now O.C.G.A. § 34-9-265) meant until an event specified in former Code 1933, § 114-414 as terminating dependency. United States Fid. & Guar. Co. v. Dunbar, 112 Ga. App. 102, 143 S.E.2d 663 (1965).

Payments not to exceed 400 weeks.

- If an award had been made to the claimant in claimant's lifetime for a total disability, and claimant had died before compensation payments had terminated, an award to claimant's dependents for the remaining period of disability, to commence when the payments to the employee left off, would be proper not to exceed 300 (now 400) weeks from the date of the injury. Columbia Cas. Co. v. Whiten, 51 Ga. App. 42, 179 S.E. 630 (1935) (decided prior to 1985 amendment).

Number of dependents of no concern to employer or carrier.

- When the death of the employee was compensable, the law fixed the amount to be paid the dependents described by former Code 1933, § 114-414 (see now O.C.G.A. § 34-9-13); the number of dependents who participate in the use of the fund was of no concern to the employer or insurance carrier, their only interest being to see that the amount of the award was paid to those entitled to receive the award. Georgia Forestry Comm'n v. Harrell, 98 Ga. App. 238, 105 S.E.2d 461 (1958); Handcrafted Furn., Inc. v. Black, 182 Ga. App. 115, 354 S.E.2d 696 (1987).

Compensation becomes trust fund held by spouse for beneficiaries support.

- The money payable as compensation becomes like money set aside as a year's support, a sort of trust fund to be held and used by the spouse for the benefit of the beneficiaries to whom it belongs. Georgia Forestry Comm'n v. Harrell, 98 Ga. App. 238, 105 S.E.2d 461 (1958).

Obligation to pay not diminished because one member no longer entitled to participate.

- The obligation of the employer or insurance carrier to pay the compensation awarded jointly to the spouse and children is not diminished simply because one of their members is no longer entitled to participate in its use. Georgia Forestry Comm'n v. Harrell, 98 Ga. App. 238, 105 S.E.2d 461 (1958).

Board authorized to discard false testimony as to contribution.

- When the commission (now board), on sufficient evidence, found it was impossible for a deceased employee to have contributed $1.00 per day to the dependent, and when it was warranted in finding that the dependent's testimony, though corroborated by another witness was either true or knowingly false, it was authorized to discard the dependent's evidence and, in the absence of unimpeached evidence, refuse the claim. United States Fid. & Guar. Co. v. Hall, 34 Ga. App. 307, 129 S.E. 305 (1925).

Harmful error to preclude evidence authorizing contrary result.

- When an award is based on an erroneous legal theory which precludes the consideration of evidence that would authorize a contrary result, it is harmful error. Insurance Co. of N. Am. v. Schwandt, 151 Ga. App. 842, 261 S.E.2d 755 (1979).

Awards held reasonable.

- See Georgia Cas. Co. v. James, 32 Ga. App. 99, 122 S.E. 651 (1924); Maryland Cas. Co. v. Campbell, 34 Ga. App. 311, 129 S.E. 447 (1925).

OPINIONS OF THE ATTORNEY GENERAL

Responsibility for paying medical services for work release inmate.

- Private employer is primarily responsible for payment of medical bills arising from injuries, fatal or otherwise, received by a work release inmate while on the job, but, upon default by the employer, the Department of Offender Rehabilitation (now Department of Corrections) is ultimately responsible for paying for those medical services. 1981 Op. Att'y Gen. No. 81-27.

RESEARCH REFERENCES

ALR.

- Workmen's compensation: effect of divorce on right of spouse or child to compensation, 13 A.L.R. 729.

Workmen's compensation: injury or death due to the elements, 13 A.L.R. 974; 16 A.L.R. 1038; 25 A.L.R. 146; 40 A.L.R. 400; 46 A.L.R. 1218; 53 A.L.R. 1084; 83 A.L.R. 234.

Workmen's compensation: injury or death to which preexisting physical condition of employee causes or contributes, 19 A.L.R. 95; 28 A.L.R. 204; 60 A.L.R. 1299.

Workmen's compensation: death from heart disease, 19 A.L.R. 110; 28 A.L.R. 204; 60 A.L.R. 1299.

Workmen's compensation: death or injury while traveling as arising out of and in the course of employment, 20 A.L.R. 319; 49 A.L.R. 454; 63 A.L.R. 469; 100 A.L.R. 1053.

Constitutionality of provision of Workmen's Compensation Act for contribution to general fund in absence of dependents of deceased workman, 20 A.L.R. 1001; 35 A.L.R. 1061.

Survival of right to compensation under Workmen's Compensation Acts upon the death of the person entitled to the award, 24 A.L.R. 441; 29 A.L.R. 1426; 51 A.L.R. 1446; 87 A.L.R. 864; 95 A.L.R. 254.

"Dependency" with Workmen's Compensation Act, 35 A.L.R. 1066; 39 A.L.R. 313; 53 A.L.R. 218; 62 A.L.R. 160; 86 A.L.R. 865; 100 A.L.R. 1090.

Workmen's compensation: double compensation to dependents in case of death of two or more, 45 A.L.R. 894.

Change of status as regards relationship or dependents after injury as affecting compensation to employee under Workmen's Compensation Act, 73 A.L.R. 1016.

Right to woman who marries injured workman to compensation as his widow or surviving wife under Workmen's Compensation Act, 98 A.L.R. 993.

Workmen's compensation: release or waiver of claim by employee as affecting right of dependents in event of his death as result of injury, 101 A.L.R. 1410.

Construction and application of provisions of Workmen's Compensation Act for additional compensation because of failure to comply with specific requirement of statute or regulation by public for protection of workmen, 106 A.L.R. 74.

Workmen's compensation: amount paid to workman on account of accident or disability, or period during which such payments were made or employee worked, as deductible in computing amount payable in event of his death, 115 A.L.R. 900.

Amount recoverable under loss of member or vision clauses of accident insurance, 44 A.L.R.2d 1233.

Validity, construction, and application of workers' compensation provisions relating to nonresident alien dependents, 28 A.L.R.5th 547.

Right to workers' compensation for injury suffered by employee while driving employer's vehicle, 28 A.L.R.6th 1.

Right to workers' compensation for physical injury or illness suffered by claimant as result of nonsudden mental stimuli - compensability under particular circumstances, 39 A.L.R.6th 445.

Right to compensation under state workers' compensation statute for injuries sustained during or as result of horseplay, joking, fooling, or the like, 41 A.L.R.6th 207.

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