GQ Corner

Q. The claimant alleges injurious exposure to asbestos related to his employment over a period of time spanning three decades from 1980 to 2010. Do we treat this as an “old law” claim or a “new law” claim?

A. For an occupational disease claim, the date of injury is the date the employee knew or should have known the condition to be work-related. Coverage, however, is attached to the policy effective for the employer as of the last date of injurious exposure. Therefore, if the claimant continued to be exposed for quite some time following the passage and implementation of the new law, the claim would be adjusted as such by the carrier with effective coverage. However, the date of injury remains significant insofar as that carrier may have affirmative defenses, as when a claimant fails to report the claimed injury to the employer within 30 days of the date of injury or fails to file a claim with the Division within one year of the date of injury. If either deadline lapses, the carrier is relieved of liability unless the claimant demonstrates good cause for the delay.

Q.  I have a claimant beneficiary whose father passed away as a result of the compensable injury. He is a 29-year old male who suffers from cerebral palsy. Do we owe death benefits on an ongoing basis due to his disability, or may we dispute his entitlement to them?

A. If the child was a dependent of the decedent because of a mental or physical handicap as of the date of the injury or death, the child is an eligible beneficiary. Dependency is determined as an economic concept under Rule 132.2:

(a) This section applies to a person who claims death benefits as a dependent of the deceased employee.

(b) A benefit which flowed from a deceased employee, at the time of death, on an established basis in at least monthly intervals to the person claiming to be dependent, is presumed to be a regular or recurring economic benefit. This presumption may be overcome by credible evidence. The burden is on the claimant to prove that benefits, which flowed less frequently than once a month, were regular or recurring at the time of the employee’s death.

(c) It shall be presumed that an economic benefit, whose value was equal to or greater than 20% of the person’s net resources in the period (see subsection (d) of this section) for which the benefit was paid, is an economic benefit which contributed substantially to the person’s welfare and livelihood. This presumption may be overcome by credible evidence. 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 person’s welfare and livelihood.

(d) Net resources for the purpose of subsection (b) of this section are 100% of all wage and salary income and all other income including nonpecuniary income and all income of the individual’s spouse, less 100% of social security taxes and federal income tax withholding.

(e) The person claiming to be a dependent shall furnish sufficient information to enable the commission to accurately identify the net resources and to establish the existence of the economic benefit claimed. This information may include, but is not limited to, tax returns, a financial statement of the individual, and check stubs.

(f) If an economic benefit was provided in the form of goods and services, the value shall be the market value of the same or similar goods and services in the same vicinity.

A dependent child may continue to receive death benefits for life, so long as dependency continues. Rule 132.8 provides:

(d) A child, who is eligible to receive death benefits because the child had a mental or physical handicap and was dependent on the employee because of the handicap on the date of the employee’s death, is entitled to receive benefits until the earlier of:
 
(1) the date on which the child is no longer handicapped; or
 
(2) the date on which the child dies.

The medical status of the handicapping condition may be reviewed annually pursuant to Rule 132.8:

(e) Once each year, the insurance carrier may request proof that a child eligible under subsection (d) of this section is still mentally or physically handicapped. The carrier shall pay all reasonable medical and travel related expenses incurred in obtaining the requested proof.