Today’s post discusses different methods employed by the Department of Labor’s Division of Longshore and Harbor Workers’ Compensation (“DLHWC”) for the calculation of death benefits between a surviving spouse and a surviving child when the total weekly amount owed for compensation is capped at the applicable maximum compensation rate. This topic is best analyzed with a hypothetical, so here are our facts: (1) Decedent’s average weekly wage at the time of death was $2,500. (2) The maximum compensation rate in effect at the time of death was $1,325.18. (3) Decedent is survived by a spouse and a child. (4) Decedent’s spouse is not the mother of the child; and the child resides with his mother. When a Longshore or Defense Base Act employee is killed in a work-related injury, his beneficiaries are most likely entitled to death benefits. The calculation of death benefits is controlled by Section 9 of theRead more
BRB: Adult Child On Social Security Was Not Entitled to Death Benefits
The Benefits Review Board (“BRB”) published a new opinion addressing the definitions of “child” and “dependent,” as used in the Longshore and Harbor Workers’ Compensation Act (“LHWCA”). During his employment for a number of employers, Claimant’s father (“Decedent”), was allegedly exposed to asbestos and welding fumes. After Decedent passed away, Claimant’s mother filed a claim for death benefits. Claimant also filed a claim for death benefits as a wholly dependent, disabled “child.” At the time of Decedent’s death, Claimant was an adult. At the outset, the administrative law judge (“ALJ”) determined that Claimant was not a “child” under Section 9(b) of the LHWCA. Section 9 provides for the payment of benefits to a surviving child, or surviving children, following the work-related death of their parent. But, the claimant must be a “child,” as defined by Section 2 of the LHWCA, 33 U.S.C. § 902(14): “Child” shall include a posthumous child,Read more
Are Longshore Death Benefits Available to Same-Sex Spouses?
In United States v. Windsor, the Supreme Court of the United States ruled that Section 3 of the Defense of Marriage Act (“DOMA”) is unconstitutional. Section 3 of DOMA limited the definition of “spouse” to a person of the opposite sex who is a husband or wife. That restriction is no more. The Supreme Court found that “DOMA’s principal effect is to identify a subset of state-sanctioned marriages and make them unequal” both in responsibilities and rights under the law. Whereas the same-sex couple was married for state law, they were unmarried for federal law. Accordingly, DOMA’s definition of “spouse” was unconstitutional. How could the Windsor decision affect Longshore and Harbor Workers’ Compensation Act (“LHWCA”) claims? Most notably, Section 9 death benefits are likely available for the surviving same-sex spouse of a legally binding marriage. The LHWCA defines “widow or widower” to include “only the decedent’s wife or husband living with or dependent forRead more
