33 U.S.C. § 909

Current through P.L. 118-106 (published on www.congress.gov on 10/04/2024)

Section 909 - Compensation for death

If the injury causes death, the compensation therefore shall be known as a death benefit and shall be payable in the amount and to or for the benefit of the persons following:

(a) Reasonable funeral expenses not exceeding $3,000.

(b) If there be a widow or widower and no child of the deceased, to such widow or widower 50 per centum of the average wages of the deceased, during widowhood, or dependent widowerhood, with two years' compensation in one sum upon remarriage; and if there be a surviving child or children of the deceased, the additional amount of 162/3 per centum of such wages for each such child; in case of the death or remarriage of such widow or widower, if there be one surviving child of the deceased employee, such child shall have his compensation increased to 50 per centum of such wages, and if there be more than one surviving child of the deceased employee, to such children, in equal parts, 50 per centum of such wages increased by 162/3 per centum of such wages for each child in excess of one: Provided, That the total amount payable shall in no case exceed 662/3 per centum of such wages. The deputy commissioner having jurisdiction over the claim may, in his discretion, require the appointment of a guardian for the purpose of receiving the compensation of a minor child. In the absence of such a requirement the appointment of a guardian for such purposes shall not be necessary.

(c) If there be one surviving child of the deceased, but no widow or widower, then for the support of such child 50 per centum of the wages of the deceased; and if there be more than one surviving child of the deceased, but no widow or dependent husband, then for the support of such children, in equal parts 50 per centum of such wages increased by 162/3 per centum of such wages for each child in excess of one: Provided, That the total amount payable shall in no case exceed 662/3 per centum of such wages.

(d) If there be no surviving wife or husband or child, or if the amount payable to a surviving wife or husband and to children shall be less in the aggregate than 662/3 per centum of the average wages of the deceased; then for the support of grandchildren or brothers and sisters, if dependent upon the deceased at the time of the injury, and any other persons who satisfy the definition of the term "dependent" in section 152 of title 26, but are not otherwise eligible under this section, 20 per centum of such wages for the support of each such person during such dependency and for the support of each parent, or grandparent, of the deceased if dependent upon him at the time of the injury, 25 per centum of such wages during such dependency. But in no case shall the aggregate amount payable under this subsection exceed the difference between 662/3 per centum of such wages and the amount payable as hereinbefore provided to widow or widower and for the support of surviving child or children.

(e) In computing death benefits, the average weekly wages of the deceased shall not be less than the national average weekly wage as prescribed in section 906(b) of this title, but-

(1) the total weekly benefits shall not exceed the lesser of the average weekly wages of the deceased or the benefit which the deceased employee would have been eligible to receive under section 906(b)(1) of this title; and

(2) in the case of a claim based on death due to an occupational disease for which the time of injury (as determined under section 910(i) of this title) occurs after the employee has retired, the total weekly benefits shall not exceed one fifty-second part of the employee's average annual earnings during the 52-week period preceding retirement.

(f) All questions of dependency shall be determined as of the time of the injury.

(g) Aliens: Compensation under this chapter to aliens not residents (or about to become nonresidents) of the United States or Canada shall be the same in amount as provided for residents, except that dependents in any foreign country shall be limited to surviving wife and child or children, or if there be no surviving wife or child or children, to surviving father or mother whom the employee has supported, either wholly or in part, for the period of one year prior to the date of the injury, and except that the Secretary may, at his option or upon the application of the insurance carrier shall, commute all future installments of compensation to be paid to such aliens by paying or causing to be paid to them one-half of the commuted amount of such future installments of compensation as determined by the Secretary.

33 U.S.C. § 909

Mar. 4, 1927, ch. 509, §9, 44 Stat. 1429; June 25, 1938, ch. 685, §6, 52 Stat. 1166; June 24, 1948, ch. 623, §3, 62 Stat. 602; July 26, 1956, ch. 735, §4, 70 Stat. 655; Pub. L. 87-87, §2, July 14, 1961, 75 Stat. 203; Pub. L. 92-576, §§5(d), 10, 20(c)(2), Oct. 27, 1972, 86 Stat. 1253, 1257, 1265; Pub. L. 98-426, §§9, 27(a)(2), Sept. 28, 1984, 98 Stat. 1647, 1654.

EDITORIAL NOTES

AMENDMENTS1984- Pub. L. 98-426, §9(a), amended generally provision preceding subsec. (a), striking out "or if the employee who sustains permanent total disability due to the injury thereafter dies from causes other than the injury," after "injury causes death".Subsec. (a). Pub. L. 98-426, §9(b), substituted "$3,000" for "$1,000".Subsec. (e). Pub. L. 98-426, §9(c), amended subsec. (e) generally. Prior to amendment, subsec. (e) read as follows: "In computing death benefits the average weekly wages of the deceased shall be considered to have been not less than the applicable national average weekly wage as prescribed in section 906(b) of this title but the total weekly benefits shall not exceed the average weekly wages of the deceased". Subsec. (g). Pub. L. 98-426, §27(a)(2), substituted "Secretary" for "commission". See Transfer of Functions note set out under section 902 of this title.1972- Pub. L. 92-576, §5(d), added to introductory provision that the compensation shall be known as a death benefit if the employee who sustains permanent total disability due to the injury thereafter dies from causes other than the injury.Subsec. (a). Pub. L. 92-576, §10(a), substituted "$1,000" for "$400". Subsec. (b). Pub. L. 92-576, §§10(b), 20, substituted "50" for "35" per centum in three places and "162/3" for "15" per centum in two places and "widow or widower" for "surviving wife or dependent husband" in three places. Subsec. (c). Pub. L. 92-576, §§10(b), 20, substituted "50" for "35" per centum in two places and "162/3" for "15" per centum and "widow or widower" for "surviving wife or dependent husband". Subsec. (d). Pub. L. 92-576, §§10(c), 20, in first sentence, substituted "husband or child," and "husband" for "dependent husband or child" and "dependent husband" and "20" for "15" per centum, and inserted "and any other persons who satisfy the definition of the term 'dependent' in section 152 of title 26, but are not otherwise eligible under this section" after "time of the injury," and "during such dependency" after "support of each such person", and in second sentence, substituted "widow or widower" for "surviving wife or dependent husband", respectively. Subsec. (e). Pub. L. 92-576, §10(d), substituted "less than the applicable national average weekly wage as prescribed in section 906(b) of this title but the total weekly benefits shall not exceed the average weekly wages of the deceased" for "more than $105 nor less than $27 but the total weekly compensation shall not exceed the weekly wages of the deceased". 1961-Subsec. (e). Pub. L. 87-87 increased the maximum limitation with respect to average weekly wages from "$81" to "$105" in the computation of death benefits.1956-Subsec. (e). Act July 26, 1956, substituted "$81" for "$52.50" and "$27" for "$18".1948-Subsec. (a). Act June 24, 1948, increased funeral expenses from $200 to $400.Subsec. (b). Act June 24, 1948, increased benefits to children of deceased workmen from 10 percent to 15 percent.Subsec. (c). Act June 24, 1948, increased death benefits of orphaned children from 15 percent to 35 percent.Subsec. (e). Act June 24, 1948, correlated basis for computing death benefits with basis for computing disability benefits under section 906(b) of this title.1938-Subsecs. (b) to (d). Act June 25, 1938, struck out references to children as being under eighteen years of age.

STATUTORY NOTES AND RELATED SUBSIDIARIES

EFFECTIVE DATE OF 1984 AMENDMENT Amendment by section 9 of Pub. L. 98-426 applicable with respect to any death after Sept. 28, 1984, and amendment by section 27(a)(2) of Pub. L. 98-426 effective Sept. 28, 1984, see section 28(d), (e)(1) of Pub. L. 98-426 set out as a note under section 901 of this title.

EFFECTIVE DATE OF 1972 AMENDMENT Amendment by section 20(c)(2) of Pub. L. 92-576 applicable only with respect to deaths or injuries occurring after Oct. 27, 1972, see section 20(c)(3) of Pub. L. 92-576 set out as a note under section 902 of this title.Amendment by Pub. L. 92-576 effective 30 days after Oct. 27, 1972, see section 22 of Pub. L. 92-576 set out as a note under section 902 of this title.

EFFECTIVE DATE OF 1961 AMENDMENT Amendment by Pub. L. 87-87 effective as to death sustained on or after July 14, 1961, see section 4 of Pub. L. 87-87 set out as a note under section 906 of this title.

EFFECTIVE DATE OF 1956 AMENDMENT Amendment by act July 26, 1956, applicable only with respect to injuries and death occurring on or after July 26, 1956, see section 9 of act July 26, 1956, set out as a note under section 906 of this title.

EFFECTIVE DATE OF 1948 AMENDMENT Amendment by act June 24, 1948, applicable to death or injuries occurring after June 24, 1948, see section 6 of act June 24, 1948, set out as a note under section 906 of this title.

Compensation: "Compensation" means the money allowance payable to an employee or to his dependents as provided for in this chapter, and includes funeral benefits provided therein.
Disability: "Disability" means incapacity because of injury to earn the wages which the employee was receiving at the time of injury in the same or any other employment; but such term shall mean permanent impairment, determined (to the extent covered thereby) under the guides to the evaluation of permanent impairment promulgated and modified from time to time by the American Medical Association, in the case of an individual whose claim is described in section 910(d)(2) of this title.
Secretary: The term "Secretary" means the Secretary of Labor.
carrier: The term "carrier" means any person or fund authorized under section 932 of this title to insure under this chapter and includes self-insurers.
deputy commissioner: The term "deputy commissioner" means the deputy commissioner having jurisdiction in respect of an injury or death.
injury: The term "injury" means accidental injury or death arising out of and in the course of employment, and such occupational disease or infection as arises naturally out of such employment or as naturally or unavoidably results from such accidental injury, and includes an injury caused by the willful act of a third person directed against an employee because of his employment.
national average weekly wage: The term "national average weekly wage" means the national average weekly earnings of production or nonsupervisory workers on private nonagricultural payrolls.
parent: The term "parent" includes step-parents and parents by adoption, parents-in-law, and any person who for more than three years prior to the death of the deceased employee stood in the place of a parent to him, if dependent on the injured employee.
person: The term "person" means individual, partnership, corporation, or association.
wages: The term "wages" means the money rate at which the service rendered by an employee is compensated by an employer under the contract of hiring in force at the time of the injury, including the reasonable value of any advantage which is received from the employer and included for purposes of any withholding of tax under subtitle C of title 26 (relating to employment taxes). The term wages does not include fringe benefits, including (but not limited to) employer payments for or contributions to a retirement, pension, health and welfare, life insurance, training, social security or other employee or dependent benefit plan for the employee's or dependent's benefit, or any other employee's dependent entitlement.