Note: The following constitutes the proposed
changes in this Rule. Added language appears in bold italic script, and
proposed deletions are indicated by strikeout. The changes will not go
into effect until further notice by the Industrial Commission.
Proposed Rule 409
Claims for Death Benefits
(1) Report of Fatalities
(a) Any person claiming entitlement to death benefits under the Act shall give written notice to the employer of the occurrence of death allegedly arising out of and in the course of employment in accordance with N.C. Gen. Stat. § 97-22.
(b) An employer shall notify the Commission of the occurrence of a death resulting from an injury or occupational disease allegedly arising out of and in the course of employment by timely filing a Form 19 within five days of knowledge thereof. In addition, an employer or carrier/administrator shall file with the Industrial Commission a Form 29, "Supplementary Report for Fatal Accidents," within 30 days of knowledge of a death or allegation of death resulting from an injury or occupational disease arising out of and in the course of employment.
(2) Identifying Beneficiaries
(a) An employer or carrier/administrator shall make a good faith effort to discover the names and addresses of decedent’s beneficiaries under N.C.G.S. 97-38 and identify them on the Form 29.
(b) In all cases involving minors or incompetents who are potential beneficiaries, a guardian ad litem shall be appointed pursuant to Rule 604.
(c) If an issue exists as to whether a person is a beneficiary under N.C.G.S. 97-38, the employer or carrier/administrator and/or any person asserting a claim for benefits may file a Form 33 Request for Hearing for a determination by a Deputy Commissioner.
(3) Liability Accepted by Employer
(a) If the employer or carrier/administrator accepts liability for a claim involving an employee’s death and there are no apparent issues necessitating a hearing for determination of beneficiaries and/or their respective rights, the parties shall submit an Agreement for Compensation for Death executed by all interested parties or their representatives on Industrial Commission Form 30. All agreements must be submitted to the Industrial Commission on a Form 30 as set forth in Rule 501(4), (5) and (6).
(b) Said agreement shall be submitted along with all relevant supporting documents, including death certificate of the employee, any relevant marriage certificate and birth certificates for any dependents.
(4) Liability Denied by Employer
(a) If the employer or carrier/administrator denies liability for a claim involving an employee’s death, the employer or carrier/administrator shall send a letter of denial to all potential beneficiaries, their attorneys of record, if any, all known providers of health care, and the Industrial Commission. The denial letter shall specifically state the reasons for the denial and shall further advise of a right to hearing.
(b) Any potential beneficiary or the employer or carrier/administrator may request a hearing as provided in Rule 602.
(5) Payment of Death Benefits
(a) Upon approval of the Industrial Commission of a Form 30, Agreement for Compensation for Death, or the issuance of a final order of the Industrial Commission directing payment of death benefits pursuant to N.C.G.S. 97-38, payment may be made by the employer or carrier/administrator directly to the beneficiaries, with the following exceptions: (1) any applicable award of attorney fees shall be paid directly to the attorney; and (2) benefits due to a minor or incompetent.
(b) (i) Subject to the discretion of the Industrial Commission, any benefits due to a minor pursuant to N.C.G.S. 97-38 may be paid directly to the decedent’s widow or widower for the use and benefit of the minor if the minor remains in the custody of the widow or widower.
(ii) In order to protect the interests of a minor or incompetent beneficiary, the Industrial Commission may in its discretion order that benefits be paid for his benefit to his duly appointed general guardian or to the Clerk of Court in the county in which he resides for his exclusive use and benefit as determined by the Clerk of Court.
(iii) Upon a change in circumstances, any interested party may request that the Industrial Commission amend the terms of any award with respect to a minor or incompetent to direct payment to another party on behalf of the minor or incompetent. When a beneficiary reaches the age of 18, any remaining benefits due him shall be paid directly to him.
(c) In the case of commuted benefits, only those sums which have not accrued at the time of the entry of the Order are subject to commutation.
(6) Procedure for Award of Death Benefits Based on Stipulated Facts
(a) Where the parties seek a written opinion and award from the Commission regarding the payment of death benefits in uncontested cases in lieu of presenting testimony at a hearing before a Deputy Commissioner, the parties may make application to the Commission for a written opinion by filing a written request with the Dockets Director.
(b) The parties shall file the following information by joint stipulation, affidavit or certified document:
a. a stipulation regarding all jurisdictional matters;
b. the decedent’s name, social security number, employer, insurance carrier or servicing agent, and the date of the injury giving rise to this claim;
c. a Form 22 or stipulation as to average weekly wage;
d. any affidavits regarding dependents;
e. the death certificate;
f. I.C. Form 29;
g. Guardian ad Litem forms, if any beneficiary is a minor or incompetent;
h. proof of beneficiary status, such as marriage license, birth certificate, or divorce decree;
i. medical records, if any;
j. a statement of payment of medical expenses incurred, if any; and
k. a funeral bill or stipulation as to payment of the funeral benefit.
(c) Upon receipt of said information and notice to potential beneficiaries, the Deputy Commissioner shall render a written Opinion and Award.
(7) Any attorney seeking fees for the representation of an uncontested claim shall file an affidavit or itemized statement in support of an award of attorney’s fees.
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