Worker’s Compensation Death Benefits: 17-Year-Old Dairy Farm Worker Killed

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April 28, 2015

This post describes the worker’s compensation aspect of a tragic death—a 17-year-old boy was crushed when he was caught between a gate and a building while herding cows, according to OSHA’s Fatality/Catastrophe Weekly Incident Reports (11/28/2010). The worker, Juan Camacho, had worked at his employer’s dairy farm in Clark County for about two weeks before the accident, according to the Wisconsin Court of Appeals case that determined the outcome of the payment of death benefits, American Family Mutual Insurance Company v. Labor and Industry Review Commission, 2015 WL 789447, issued February 26, 2015.

Much less was known about Juan Camacho than was known. He was thought to have had some secondary education in his native Mexico. He was in the United States illegally. After the worker’s compensation insurance carrier made a diligent search, no one who might have qualified as a “dependent” for purposes of worker’s compensation could be identified.

The American Family case illustrates two points. First, when an on-the-job injury results in death and where no one who is eligible for receipt of death benefits can be identified and located, death benefits are payable to the State of Wisconsin Work Injury Supplemental Benefit Fund (“WISBF”). In this case the Wisconsin Department of Justice, which represents the WISBF, filed a hearing application for payment of death benefits in the wake of Camacho’s death. There is nothing surprising about this procedure.

While American Family did not dispute that death benefits were payable, it did contest the amount of those benefits. As a 17 year old dairy farm laborer, Juan Camacho’s wage rate was low. The Worker’s Compensation Act imposes, however, an important legal presumption. Where employees are under the age of 27, the law (specifically, section 102.11(1)(g)), presumes that the employee’s wage is the wage he or she probably would earn upon attaining the age of 27. Unless the employer is able to establish, by a preponderance of the evidence, the wage the employee would likely earn at age 27, the maximum wage in effect at the time of injury “shall be taken as equivalent” to the projected earnings.

In this case the Labor and Industry Review Commission (“Commission”), which adopted the decision of the administrative law judge as the Commission’s own, determined that American Family’s vocational expert’s report failed to overcome the legal presumption by a preponderance of the evidence. The expert’s report observed that Juan Camacho’s projected earnings in Mexico at age 27 would be about $233 per month, which is less than the maximum wage for an injury in 2010 ($433 per month). Finding the expert’s report and the testimony of the employer unpersuasive, the Commission determined that the presumption had not been overcome by the preponderance of the evidence. Accordingly, the Commission awarded death benefits in the maximum amount for an injury in 2010, which totals $244,500, to be paid to the WISBF.

The Wisconsin Court of Appeals reviewed the Commission’s decision. The appellate court found that the Commission’s factual determination (that the evidence did not overcome the presumption) was supported by substantial and credible evidence. The appellate court also found that the Commission is entitled to great deference in interpreting section 102.11(1)(g) and that the Commission’s interpretation (that the statute creates a rebuttable presumption in favor of the maximum wage) is reasonable. Accordingly, the court of appeals affirmed the Commission’s ruling. There is nothing surprising about these well-established principles. They illustrate what employers and insurance carriers can expect in the tragic instances of young workers who are killed in work-related accidents.

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