Workers’ Compensation

ORS 656.204
Death

If death results from an accidental injury, payments must be made as follows:

(1)

(a)

The cost of final disposition of the body and funeral expenses, including but not limited to transportation of the body, must be paid, not to exceed 20 times the average weekly wage in any case.

(b)

The insurer or self-insured employer shall pay bills submitted for disposition and funeral expenses up to the benefit limit established in paragraph (a) of this subsection. If any part of the benefit remains unpaid 60 days after the date of death or the date of claim acceptance, whichever is later, the insurer or self-insured employer shall pay the unpaid amount to the estate of the worker.

(2)

(a)

If a worker is survived by a spouse, monthly benefits must be paid in an amount equal to 4.35 times 66-2/3 percent of the average weekly wage to the surviving spouse until remarriage. The payment shall cease at the end of the month in which the remarriage occurs.

(b)

Upon remarriage, a surviving spouse must be paid 36 times the monthly benefit in a lump sum as final payment of the surviving spousal benefit.

(c)

If, after the date of the subject worker’s death, the surviving spouse cohabits with another person for an aggregate period of more than one year and a child has resulted from the relationship, the surviving spouse must be paid 36 times the monthly benefit in a lump sum as final payment of the surviving spousal benefit.

(3)

(a)

If a worker leaves a child under 19 years of age, a monthly benefit equal to 4.35 times 25 percent of the average weekly wage must be paid to each such child until the child becomes 19 years of age.

(b)

The total benefits provided for in this subsection may not exceed 4.35 times 133-1/3 percent of the average weekly wage. If the sum of the individual benefits exceeds this maximum, the benefit for each child must be reduced proportionally.

(4)

(a)

If a worker leaves a dependent, a monthly payment must be made to each dependent that is equal to 50 percent of the average monthly support the dependent actually received from the worker during the 12 months preceding the occurrence of the accidental injury. If a dependent is under the age of 19 years at the time of the accidental injury, the payment to the dependent must cease when the dependent becomes 19 years of age. The payment to any dependent must cease under the same circumstances that would have terminated the dependency had the injury not happened.

(b)

The total benefits provided for in this subsection may not exceed 4.35 times 10 percent of the average weekly wage. If the sum of the individual benefits exceeds this maximum, the benefit for each dependent must be reduced proportionally.

(5)

If a child is an invalid at the time the child otherwise becomes ineligible for benefits under this section, the payment to the child must continue while the child remains an invalid. If a person is entitled to payment because the person is an invalid, payment must terminate when the person ceases to be an invalid.

(6)

(a)

If a child or dependent is between 19 and 26 years of age at the time of a worker’s death, or becomes 19 years of age after the worker’s death, monthly benefits must be paid for not more than 48 months until the age of 26 during a period in which the child or dependent is completing secondary education, is obtaining a general educational development certificate or is attending a program of higher education. The child or dependent must provide an insurer or self-insured employer with documentation that enables the insurer or self-insured employer to determine the child’s or dependent’s eligibility for monthly benefits.

(b)

If a child or dependent who is eligible for benefits under this subsection does not have a surviving parent, the child or dependent must receive 4.35 times 66-2/3 percent of the average weekly wage.

(c)

As used in this subsection, “attending a program of higher education” means regularly attending community college, college or university, or regularly attending a course of vocational or technical training designed to prepare the participant for gainful employment. A child or dependent enrolled in an educational course load of less than one-half of that determined by the educational facility to constitute “full-time” enrollment is not “attending a program of higher education.”

(7)

As used in this section, “average weekly wage” has the meaning for that term provided in ORS 656.211 (“Average weekly wage” defined). [Amended by 1957 c.453 §1; 1965 c.285 §22; 1967 c.286 §1; 1969 c.521 §1; 1971 c.415 §1; 1973 c.497 §2; 1974 c.41 §4; 1981 c.535 §4; 1981 c.874 §15; 1985 c.108 §1; 1987 c.235 §1; 1991 c.473 §1; 1995 c.332 §13; 1999 c.927 §2; 2009 c.171 §1; 2015 c.629 §54; 2017 c.71 §2]

Notes of Decisions

“Remarriage” means valid and subsisting marriage. Peters v. Briggs & Sons, 10 Or App 310, 499 P2d 1361 (1972)

Notwithstanding that parties were never formally married, claimant whose common law marriage to decedent worker was valid under laws of Colorado was entitled to benefits as surviving spouse of decedent. Johnston v. Georgia-Pacific, 35 Or App 231, 581 P2d 108 (1978)

Although child’s paternity has not been established under ORS chapter 109, Workers’ Compensation Board may determine child’s paternity for purpose of determining mother and child’s rights to benefits. Amos v. SAIF, 72 App 145, 694 P2d 998 (1985)

Claimant is not required to show that deceased worker provided more than 50 percent of claimant’s average monthly income in order to receive benefits as dependent. Gallegos v. Amalgamated Sugar Co., 81 Or App 68, 724 P2d 850 (1986)

Correction: The permanent edition incorrectly cites the case of State v. Schulman, 6 Or App 81, 485 P2d 1252 (1971), Sup Ct review denied, under this section. The case is correctly placed under ORS 435.405 to 435.495.

Attorney General Opinions

Benefit increase limitation under 1973 law, (1973) Vol 36, p 710

Source

Last accessed
May 30, 2023

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