Tennessee § 50-6-210 - Dependents — Compensation payments.

§ 50-6-210. Dependents — Compensation payments.

Persons Wholly Dependent. For the purposes of this chapter, the following persons shall be conclusively presumed to be wholly dependent: A surviving spouse, unless it is shown that the surviving spouse was voluntarily living apart from the surviving spouse's spouse at the time of injury; and Children under sixteen (16) years of age. Persons Prima Facie Dependent. Children between sixteen (16) and eighteen (18) years of age, or those over eighteen (18) years of age, if physically or mentally incapacitated from earning, shall prima facie be considered dependent. Actual Dependents. Wife, husband, child, mother, father, grandparent, sister, brother, mother-in-law, father-in-law, who were wholly supported by the deceased employee at the time of death and for a reasonable period of time immediately prior to the time of death, shall be considered actual dependents, and payment of compensation shall be made in the order named. Partial Dependents. Any member of a class named in subsection (c) who regularly derived part of the member's support from the wages of the deceased employee at the time of death and for a reasonable period of time immediately prior to the time of death shall be considered a partial dependent, and payment of compensation shall be made to the dependents in the order named. Compensation in Death Cases. In death cases, compensation payable to dependents shall be computed on the following basis, and shall be paid to the persons entitled to compensation, without administration: Surviving Spouse and No Dependent Child. If the deceased employee leaves a surviving spouse and no dependent child, there shall be paid to the surviving spouse fifty percent (50%) of the average weekly wages of the deceased. Surviving Spouse and Children. If the deceased employee leaves a surviving spouse and one (1) or more dependent children, there shall be paid to the surviving spouse for the benefit of the surviving spouse and the child or children, sixty-six and two-thirds percent (662/3%) of the average weekly wages of the deceased. Surviving Spouse and Children, How Paid. In all cases where compensation is payable to a surviving spouse for the benefit of the surviving spouse and dependent child or children, the court shall have the power to determine in its discretion what portion of the compensation shall be applied for the benefit of any child or children, and may order the compensation paid to a guardian. Remarriage of Surviving Spouse. Upon the remarriage of a surviving spouse, if there is no child of the deceased employee, the compensation shall terminate; but if there is a child or children under eighteen (18) years of age, or over eighteen (18) years of age if physically or mentally incapacitated from earning, from the time of the remarriage the child or children shall have status of orphan or orphans, and draw compensation accordingly, not, however, to exceed sixty-six and two-thirds percent (662/3%) of the average weekly wages of the deceased. Dependent Orphans. If the deceased employee leaves one (1) dependent orphan, there shall be paid fifty percent (50%) of the average weekly wages of the deceased; if the deceased leaves two (2) or more dependent orphans, there shall be paid sixty-six and two-thirds percent (662/3%) of the average weekly wages of the deceased. Parent or Parents. If the deceased employee leaves no surviving spouse or child entitled to any payment under this section, but should leave a parent or parents, either or both of whom are wholly dependent on the deceased, there shall be paid, if only one (1) parent, twenty-five percent (25%) of the average weekly wages of the deceased to the parent, and if both parents, thirty-five percent (35%) of the average weekly wages of the deceased to the parents. Grandparent, Brother, Sister, Mother-in-law or Father-in-law. If the deceased leaves no surviving spouse or dependent child or parent entitled to any payment under this section, but leaves a grandparent, brother, sister, mother-in-law or father-in-law wholly dependent upon the deceased for support, there shall be paid to the dependent, if only one (1), twenty percent (20%) of the average weekly wages of the deceased, or, if more than one (1), twenty-five percent (25%) of the average weekly wages of the deceased, divided between them or among them share and share alike. Compensation to Dependents to Cease upon Death or Marriage. If compensation is being paid under this chapter to any dependent, the compensation shall cease, upon the death or marriage of the dependent, unless otherwise provided in this section. Partial Dependents to Receive Proportion. Partial dependents shall be entitled to receive only that proportion of the benefits provided for actual dependents that the average amount of the wages regularly contributed by the deceased to the partial dependent at the time of, and for a reasonable time immediately prior to, the injury, bore to the total income of the dependent during the same time. Maximum and Minimum Compensation. The compensation payable in case of death to persons wholly dependent shall be subject to the maximum weekly benefit and minimum weekly benefit; provided, that if at the time of injury the employee receives wages of less than the minimum weekly benefit, the compensation shall be the full amount of the wages a week, but in no event shall the compensation payable under this provision be less than the minimum weekly benefit. The compensation payable to partial dependents shall be subject to the same maximum and minimum specified in this subdivision (e)(10); provided, that if the income loss of the partial dependents by the death is less than the minimum weekly benefit, then the dependents shall receive the full amount of the income loss. This compensation shall be paid during dependency not to exceed the maximum total benefit, payments to be paid at the intervals when the wage was payable, as nearly as may be. Orphans and Other Children. In computing and paying compensation to orphans or other children, in all cases, only those under eighteen (18) years of age, or those over eighteen (18) years of age who are physically or mentally incapacitated from earning, shall be included, the former to receive compensation only during the time they are under eighteen (18) years of age, the latter only for the time they are so incapacitated. If the dependent is attending a recognized educational institution, benefits shall be paid until twenty-two (22) years of age. Actual Dependents. Actual dependents shall be entitled to take compensation in the order named in subsection (c), until sixty-six and two-thirds percent (66 2/3%) of the monthly wages of the deceased during the time specified in this chapter have been exhausted, but the total compensation to be paid to all actual dependents of a deceased employee shall not exceed in the aggregate the maximum weekly benefit. Dependency Status Not Affected by Certain Assistance Payments. Sums distributed under the Employment Security Law, compiled in chapter 7 of this title; the Old-Age Assistance Law, compiled in title 71, chapter 2, part 2; the Aid to Dependent Children Law, compiled in title 71, chapter 3, part 1; Aid to Blind Law, compiled in title 71, chapter 4, part 1; the federal Social Security Act, compiled in 42 U.S.C. § 301 et seq., or any other public assistance distributed by the United States government, the state, or any county or municipality of the state, shall not be considered income within the meaning of this law and shall not affect the status or compensation of any person entitled to benefits as provided in this chapter. If compensation is payable due to the death of an employee under this chapter, and the decedent leaves an alien dependent or dependents residing outside of the United States, a workers' compensation mediator is authorized to conduct alternative dispute resolution proceedings to attempt to resolve the issues; provided, that a representative or representatives of the employer and a duly authorized representative or representatives of the consul or other representative of the foreign country in which the dependent or dependents reside are present. If the parties reach a settlement agreement, the administrator or administrator's designee is authorized to approve the settlement, and the order of the administrator or the administrator's designee shall be entitled to the same standing as a judgment of a court of record for all purposes. If the parties are unable to reach an agreement, the employer or employee's representative may seek relief pursuant to § 50-6-239 following the issuance of a dispute certification notice. The administrator, or administrator's designee, or the court shall order payment of any compensation due from the employer to be made to the duly accredited consular officer of the country where the beneficiaries are citizens. The consular officer or the consular officer's representative shall be fully authorized and empowered by this law to settle all claims for compensation and to receive the compensation for distribution to the persons entitled to the compensation. The distribution of funds in cases described in subdivision (f)(1)(A) shall be made only upon the order of the administrator, the administrator's designee, or the court that heard the matter. If required to do so by the administrator, the administrator's designee, or the court, the consular officer or the consular officer's representative shall execute a good and sufficient bond to be approved by the administrator, the administrator's designee, or the court, conditioned upon the faithful accounting of the moneys so received by the consular officer or the consular officer's representative. Before the bond is discharged, a verified statement of receipts and disbursements of the moneys shall be made and filed with the administrator or the court, as appropriate. The consular officer or the consular officer's representative shall, before receiving the first payment of the compensation, and at reasonable times thereafter, upon the request of the employer, furnish to the employer a sworn statement containing a list of the dependents with the name, age, residence, extent of dependency and relation to the deceased of each dependent. Acts 1919, ch. 123, § 30; 1923, ch. 84, § 1; Shan. Supp., § 3608a181; Acts 1927, ch. 40, § 3; Code 1932, § 6883; Acts 1941, ch. 90, § 8; 1943, ch. 110, § 1; 1947, ch. 139, § 10; 1949, ch. 277, § 7; C. Supp. 1950, § 6883; Acts 1953, ch. 111, § 6; 1955, ch. 182, §§ 9-16; 1957, ch. 270, §§ 7, 8; 1959, ch. 172, §§ 10, 11; 1963, ch. 362, § 1; 1965, ch. 158, § 1; 1967, ch. 313, §§ 1, 2; 1969, ch. 196, §§ 1, 2; 1971, ch. 134, §§ 1, 2, 4; 1972, ch. 699, § 3; 1973, ch. 379, § 9; 1974, ch. 617, §§ 6, 7; 1975, ch. 86, §§ 6, 7; 1977, ch. 354, § 6; 1979, ch. 365, § 6; 1979, ch. 370, § 1; impl. am. Acts 1980, ch. 534, § 1; Acts 1980, ch. 607, §§ 9, 10, 11; 1981, ch. 333, §§ 9, 10; 1982, ch. 880, §§ 9, 10; T.C.A. (orig. ed.), § 50-1013; Acts 1985, ch. 393, § 13; 2013, ch. 289, § 56. Compiler's Notes. Acts 2013, ch. 289, § 103 provided that the act, which added subsection (f), shall be known and may be cited as the “Workers' Compensation Reform Act of 2013.” Amendments. The 2013 amendment, effective July 1, 2014, added (f). Effective Dates. Acts 2013, ch. 289, § 106. July 1, 2014; provided, that, for purposes of promulgating rules and regulations, making appointments and making necessary provisions for the implementation of the act, the act shall take effect April 29, 2013. Cross-References. Maximum compensation limits inapplicable, § 50-6-303 . Workers' Compensation Appeals Board Decisions. After filing a petition for benefits identifying the deceased worker and the existence of a dependent spouse, the attorney of record took no further action on the claim. An individual identified as the decedent's niece later participated in a show cause hearing and requested additional time to file a request for a hearing. That request was granted, and the niece filed a request for an expedited hearing. The employer responded by filing a motion to dismiss, asserting that the niece is not a member of any class of potential dependents, that the niece is not the legal representative of the decedent's estate, and that she has no standing to bring a claim for death benefits. The trial court denied the employer's motion to dismiss, determining the motion should be treated as a motion for summary judgment because the employer relied on the niece's affidavit that was filed in support of the request for an expedited hearing. The employer has appealed. In the context of the appeal as presented, however, the Board was unable to reach the merits of the issues because: (1) the attorney filing the petition for benefits failed to file a motion to withdraw and; (2) neither the parties nor the court addressed how or why the niece was added as a party. There was no motion to withdraw as counsel, no motion to substitute parties or add a party, and no order explaining the addition of the niece as a party or a judicially-appointed representative of the estate of the decedent. In addition, a non-party who is not an attorney may not represent an injured worker, a surviving spouse, or any other litigant in a workers' compensation case. Filings made by a person purportedly representing the estate of a deceased worker in a pro se capacity cannot be considered until the court has approved the withdrawal of the attorney of record and added the judicially-designated representative of the estate as a party. Accordingly, the trial court's order denying the employer's motion to dismiss is vacated. Ayers v. Smith & Nephew, Inc., 2020 TN Wrk Comp App Bd LEXIS 38.