287.240. Death benefits and burial expenses, amount, to whom paid and when paid--dependent defined--death benefits, how distributed--record of dependents, employer to keep--dependents to report to div - Missouri Statutes

Death benefits and burial expenses, amount, to whom paid and whenpaid--dependent defined--death benefits, how distributed--record ofdependents, employer to keep--dependents to report to division,procedure.

287.240. If the injury causes death, either with or without disability,the compensation therefor shall be as provided in this section:

(1) In all cases the employer shall pay direct to the persons furnishingthe same the reasonable expense of the burial of the deceased employee notexceeding five thousand dollars. But no person shall be entitled tocompensation for the burial expenses of a deceased employee unless he hasfurnished the same by authority of the widow or widower, the nearest relativeof the deceased employee in the county of his death, his personalrepresentative, or the employer, who shall have the right to give theauthority in the order named. All fees and charges under this section shallbe fair and reasonable, shall be subject to regulation by the division or thecommission and shall be limited to such as are fair and reasonable for similarservice to persons of a like standard of living. The division or thecommission shall also have jurisdiction to hear and determine all disputes asto the charges. If the deceased employee leaves no dependents, the deathbenefit in this subdivision provided shall be the limit of the liability ofthe employer under this chapter on account of the death, except as hereinprovided for burial expenses and except as provided in section 287.140;provided that in all cases when the employer admits or does not deny liabilityfor the burial expense, it shall be paid within thirty days after writtennotice, that the service has been rendered, has been delivered to theemployer. The notice may be sent by registered mail, return receiptrequested, or may be made by personal delivery;

(2) The employer shall also pay to the total dependents of the employeea death benefit based on the employee's average weekly earnings during theyear immediately preceding the injury that results in the death of theemployee, as provided in section 287.250. The amount of compensation fordeath, which shall be paid in installments in the same manner thatcompensation is required to be paid under this chapter, shall be computed asfollows:

(a) If the injury which caused the death occurred on or after September28, 1983, but before September 28, 1986, the weekly compensation shall be anamount equal to sixty-six and two-thirds percent of the employee's averageweekly earnings during the year immediately preceding the injury; providedthat the weekly compensation paid under this paragraph shall not exceed anamount equal to seventy percent of the state average weekly wage, as such wageis determined by the division of employment security, as of the July firstimmediately preceding the date of injury. If there is a total dependent, nodeath benefits shall be payable to partial dependents or any other personsexcept as provided in subdivision (1) of this section;

(b) If the injury which caused the death occurred on or after September28, 1986, but before August 28, 1990, the weekly compensation shall be anamount equal to sixty-six and two-thirds percent of the employee's averageweekly earnings during the year immediately preceding the injury; providedthat the weekly compensation paid under this paragraph shall not exceed anamount equal to seventy-five percent of the state average weekly wage, as suchwage is determined by the division of employment security, as of the Julyfirst immediately preceding the date of injury. If there is a totaldependent, no death benefit shall be payable to partial dependents or anyother persons except as provided in subdivision (1) of this section;

(c) If the injury which caused the death occurred on or after August 28,1990, but before August 28, 1991, the weekly compensation shall be an amountequal to sixty-six and two-thirds percent of the injured employee's averageweekly earnings as of the date of the injury; provided that the weeklycompensation paid under this paragraph shall not exceed an amount equal to onehundred percent of the state average weekly wage;

(d) If the injury which caused the death occurred on or after August 28,1991, the weekly compensation shall be an amount equal to sixty-six andtwo-thirds percent of the injured employee's average weekly earnings as of thedate of the injury; provided that the weekly compensation paid under thisparagraph shall not exceed an amount equal to one hundred five percent of thestate average weekly wage;

(e) If the injury which caused the death occurred on or after September28, 1981, the weekly compensation shall in no event be less than forty dollarsper week;

(3) If there are partial dependents, and no total dependents, a part ofthe death benefit herein provided in the case of total dependents, determinedby the proportion of his contributions to all partial dependents by theemployee at the time of the injury, shall be paid by the employer to each ofthe dependents proportionately;

(4) The word "dependent" as used in this chapter shall be construed tomean a relative by blood or marriage of a deceased employee, who is actuallydependent for support, in whole or in part, upon his or her wages at the timeof the injury. The following persons shall be conclusively presumed to betotally dependent for support upon a deceased employee, and any death benefitshall be payable to them to the exclusion of other total dependents:

(a) A wife upon a husband with whom she lives or who is legally liablefor her support, and a husband upon a wife with whom he lives or who islegally liable for his support; provided that on the death or remarriage of awidow or widower, the death benefit shall cease unless there be other totaldependents entitled to any death benefits under this chapter. In the event ofremarriage, a lump sum payment equal in amount to the benefits due for aperiod of two years shall be paid to the widow or widower. Thereupon theperiodic death benefits shall cease unless there are other total dependentsentitled to any death benefit under this chapter, in which event the periodicbenefits to which such widow or widower would have been entitled had he or shenot died or remarried shall be divided among such other total dependents andpaid to them during their period of entitlement under this chapter;

(b) A natural, posthumous, or adopted child or children, whetherlegitimate or illegitimate, under the age of eighteen years, or over that ageif physically or mentally incapacitated from wage earning, upon the parentlegally liable for the support or with whom he, she, or they are living at thetime of the death of the parent. In case there is a wife or a husbandmentally or physically incapacitated from wage earning, dependent upon a wifeor husband, and a child or more than one child thus dependent, the deathbenefit shall be divided among them in such proportion as may be determined bythe commission after considering their ages and other facts bearing on thedependency. In all other cases questions of total or partial dependency shallbe determined in accordance with the facts at the time of the injury, and insuch other cases if there is more than one person wholly dependent the deathbenefit shall be divided equally among them. The payment of death benefits toa child or other dependent as provided in this paragraph shall cease when thedependent dies, attains the age of eighteen years, or becomes physically andmentally capable of wage earning over that age, or until twenty-two years ofage if the child of the deceased is in attendance and remains as a full-timestudent in any accredited educational institution, or if at eighteen years ofage the dependent child is a member of the armed forces of the United Stateson active duty; provided, however, that such dependent child shall be entitledto compensation during four years of full-time attendance at a fullyaccredited educational institution to commence prior to twenty-three years ofage and immediately upon cessation of his active duty in the armed forces,unless there are other total dependents entitled to the death benefit underthis chapter;

(5) The division or the commission may, in its discretion, order oraward the share of compensation of any such child to be paid to the parent,grandparent, or other adult next of kin or conservator of the child for thelatter's support, maintenance and education, which order or award upon noticeto the parties may be modified from time to time by the commission in itsdiscretion with respect to the person to whom shall be paid the amount of theorder or award remaining unpaid at the time of the modification;

(6) The payments of compensation by the employer in accordance with theorder or award of the division or the commission shall discharge the employerfrom all further obligations as to the compensation;

(7) All death benefits in this chapter shall be paid in installments inthe same manner as provided for disability compensation;

(8) Every employer shall keep a record of the correct names andaddresses of the dependents of each of his employees, and upon the death of anemployee by accident arising out of and in the course of his employment shallso far as possible immediately furnish the division with such names andaddresses;

(9) Dependents receiving death benefits under the provisions of thischapter shall annually report to the division as to marital status in the caseof a widow or widower or age and physical or mental condition of a dependentchild. The division shall provide forms for the making of such reports.

(RSMo 1939 § 3709, A.L. 1943 p. 1073, A.L. 1943 p. 1076, A.L. 1947 V. II p. 438, A.L. 1951 p. 620, A.L. 1953 p. 530, A.L. 1957 p. 560, A.L. 1959 S.B. 167, A.L. 1961 p. 423, A.L. 1965 pp. 397, 414, A.L. 1967 p. 384, A.L. 1969 p. 393, A.L. 1971 H.B. 25 & 364, A.L. 1974 S.B. 417, A.L. 1975 H.B. 941, A.L. 1976 S.B. 708, A.L. 1978 H.B. 1260, A.L. 1979 H.B. 496, A.L. 1980 H.B. 1396, A.L. 1981 H.B. 324, A.L. 1983 S.B. 44 & 45 merged with H.B. 243 & 260, A.L. 1990 S.B. 751)

Prior revision: 1929 § 3319

(1973) Where an employer accepted workmen's compensation law, but was uninsured and did not qualify as self-insurer, once the widow makes her election to file a claim for compensation rather than file a suit for damages, her right to full commutation of any award vests and her dependency status is to be determined as of the date of employee's death and a lump sum commutation would not be affected by later contingencies such as remarriage. Mays v. Williams (Mo.), 494 S.W.2d 289.

(2003) Section's distinction between dependent and nondependent heirs does not violate the open courts provision of Article I, Section 14, or the Equal Protection Clause of Article I, Section 2. Etling v. Westport Heating and Cooling Services, Inc., 92 S.W.3d 771 (Mo.banc).