The Longshore and Harbor Workers’ Compensation Act (LHWCA) provides death benefits to survivors if a work injury contributes to or causes the death of covered employees. When an employee dies, the eligible survivors (spouses, children, parents, grandparents, grandchildren and siblings or their legal representatives) must file a death benefits claim. The survivors must file Form LS-262 with the Office of Workers’ Compensation Programs (OWCP) within one year after the date of death. If the worker died due to an occupational disease (for example, asbestosis or mesothelioma) that did not manifest until after employment, claims must be filed within two years of the date that the eligible survivor was aware, or should have been aware, of a relationship between the deceased worker’s former employment, the diagnosed disease, and their demise. The OWCP requires evidence in support of the claim including marriage certificates, birth certificates of eligible survivors, the deceased employee’s medical records, and the Certification of Funeral Expenses (Form LS-265).
These benefits are paid weekly to specified survivors based on the employee’s average weekly wage (AWW) at the time of death. The employee’s AWW is usually determined using the employee’s yearly salary divided by 52 (other calculations exist, and survivors may need to check with the district office servicing the claim). Benefit payments cannot be less than the national average weekly wages (NAWW) that were applicable when the worker died. The total amount of these benefits paid may not be more than either 200% of the NAWW or the deceased employee’s AWW, whichever amount is lower. Funeral expenses, up to $3,000, are also paid as part of LHWCA benefits.
The deceased employee’s surviving spouse will receive 50 percent (50%) of the employee’s AWW for life or until remarriage. If a surviving spouse remarries, he or she receives a final lump sum benefit payment covering two years (children still receive their benefits after a remarriage). Benefit payments to children terminate when they turn 18 unless the beneficiary is a full-time student, then benefits can continue until the child turns 23. However, benefit payments may be permanent for a surviving child over 18 if the child is incapable of working or living independently due to a mental or physical disability. If the deceased worker and spouse had one or more children, then the compensation increases to a percentage of 66 ⅔ (66 ⅔%) of the AWW. If there are no surviving parents, but there is one surviving child, 50 percent (50%) of the AWW is paid to the child. If neither of the spouses is living, but there are two or more surviving children, the compensation is 66 ⅔ percent (66 ⅔%) of the AWW to be shared equally among the surviving children. If there is no surviving spouse or children, death benefits may be payable to other dependents, including siblings, grandparents, and grandchildren. Parents and grandparents may receive 25 percent (25%), and siblings and grandchildren may receive 20 percent (20%) of the employee’s AWW. Death benefits may be adjusted each year, on October 1st, due to increases in the NAWW.