48-122. Compensation; injuries causing death; amount and duration of payments; computation of wages; expenses of burial; alien dependents; appointment of attorney in fact; bond; filing required.

(1) If death results from injuries and the deceased employee leaves one or more dependents dependent upon his or her earnings for support at the time of injury, the compensation, subject to section 48-123, shall be not more than the maximum weekly income benefit specified in section 48-121.01 nor less than the minimum weekly income benefit specified in section 48-121.01, except that if at the time of injury the employee receives wages of less than the minimum weekly income benefit specified in section 48-121.01, then the compensation shall be the full amount of such wages per week, payable in the amount and to the persons enumerated in section 48-122.01 subject to the maximum limits specified in this section and section 48-122.03.

(2) When death results from injuries suffered in employment, if immediately prior to the accident the rate of wages was fixed by the day or hour, or by the output of the employee, the weekly wages shall be taken to be computed upon the basis of a workweek of a minimum of five days, if the wages are paid by the day, or upon the basis of a workweek of a minimum of forty hours, if the wages are paid by the hour, or upon the basis of a workweek of a minimum of five days or forty hours, whichever results in the higher weekly wage, if the wages are based on the output of the employee.

(3) Upon the death of an employee, resulting through personal injuries as defined in section 48-151, whether or not there are dependents entitled to compensation, the reasonable expenses of burial, not exceeding ten thousand dollars, without deduction of any amount previously paid or to be paid for compensation or for medical expenses, shall be paid to his or her dependents, or if there are no dependents, then to his or her personal representative.

(4) Compensation under the Nebraska Workers' Compensation Act to alien dependents who are not residents of the United States shall be the same in amount as is provided in each case for residents, except that at any time within one year after the death of the injured employee the employer may at his or her option commute all future installments of compensation to be paid to such alien dependents. The amount of the commuted payment shall be determined as provided in section 48-138.

(5)(a)(i) Except as provided in subdivision (5)(a)(ii) of this section, the consular officer of the nation of which the employee, whose injury results in death, is a citizen shall be regarded as the sole legal representative of any alien dependents of the employee residing outside of the United States and representing the nationality of the employee.

(ii) At any time prior to the final settlement, a nonresident alien dependent may file with the Nebraska Workers' Compensation Court a power of attorney designating any suitable person residing in this state to act as attorney in fact in proceedings under the Nebraska Workers' Compensation Act. If the compensation court determines that the interests of the nonresident alien dependent will be better served by such person than by the consular officer, the compensation court shall appoint such person to act as attorney in fact in such proceedings. In making such determination the court shall consider, among other things, whether a consular officer's jurisdiction includes Nebraska and the responsiveness of the consular officer to attempts made by an attorney representing the employee to engage such consular officer in the proceedings.

(b) Such consular officer or appointed person shall have in behalf of such nonresident alien dependents the exclusive right to institute proceedings for, adjust, and settle all claims for compensation provided by the Nebraska Workers' Compensation Act and to receive the distribution to such nonresident alien dependents of all compensation arising thereunder.

(c) A person appointed under subdivision (5)(a)(ii) of this section shall furnish a bond satisfactory to the compensation court conditioned upon the proper application of any money received as compensation under the Nebraska Workers' Compensation Act. Before the bond is discharged, such appointed person shall file with the compensation court a verified account of receipts and disbursements of such money.

(d) For purposes of this section, consular officer means a consul general, vice consul general, or vice consul or the representative of any such official residing within the State of Nebraska.

(6) The changes made to this section by Laws 2019, LB418, apply to cases under the Nebraska Workers' Compensation Act that are pending on September 1, 2019, and to cases filed on or after such date.

Source

Annotations

1. Dependency

2. Medical and burial allowance

3. Miscellaneous

1. Dependency

This section identifies the ongoing obligation of the employer to pay medical expenses to a dependent following the death of the employee. Olivotto v. DeMarco Bros. Co., 273 Neb. 672, 732 N.W.2d 354 (2007).

Where a deceased father had partially contributed to the support of a child residing with a former wife, such child was a partial dependent. James v. Rainchief Constr. Co., 197 Neb. 818, 251 N.W.2d 367 (1977).

A dependent in fact is a person who was dependent upon the earnings of the deceased for support. Warner v. State, 190 Neb. 643, 211 N.W.2d 408 (1973).

In order to sustain a claim of partial dependency, plaintiff must show that employee regularly contributed to dependent an average amount for a reasonable time prior to the accident. Lighthill v. McCurry, 175 Neb. 547, 122 N.W.2d 468 (1963).

Where employee died while proceedings were pending on appeal, cause would be remanded to determine rights of parties as to dependency. Smith v. Stevens, 173 Neb. 723, 114 N.W.2d 724 (1962).

Common-law wife was a dependent entitled to compensation for death of husband. Bourelle v. Soo-Crete, Inc., 165 Neb. 731, 87 N.W.2d 371 (1958).

Plaintiff was awarded relief to which she was entitled under this and succeeding two sections. Gilmore v. State, 148 Neb. 10, 26 N.W.2d 296 (1947).

Wife living apart from husband may be entitled to compensation for husband's death if she was dependent upon him. Bulman v. Lyman-Richey Sand & Gravel Corporation, 144 Neb. 342, 13 N.W.2d 403 (1944).

To make out case of dependency, payments must be shown to have come from wages earned by the workman. Freburg v. Central Nebraska Public Power & Irr. Dist., 142 Neb. 868, 8 N.W.2d 209 (1943).

There must be proof of dependency in fact and not mere legal dependency to sustain an award of compensation for death of an employee. Meyer v. Nielsen Chevrolet Co., 137 Neb. 6, 287 N.W. 849 (1939).

Compensation awarded to dependents is that proportion of injured person's income paid to them for reasonable time prior to the injury. Kral v. Lincoln Steel Works, 136 Neb. 31, 284 N.W. 761 (1939).

Compensation to dependents in cases of death are fixed and determined by statute. Summers v. Railway Express Agency, 134 Neb. 237, 278 N.W. 476 (1938).

Action by injured employee, pending at time of death, may be revived by dependents giving bond or by administrator without bond, and pleadings for revivor must state facts sufficient to bring applicant within statutes. Palmer v. Saunders County, 117 Neb. 484, 221 N.W. 99 (1928).

Evidence was sufficient to show mother was wholly dependent on deceased son, and entitled to compensation as such. Lincoln Gas & Elec. Light Co. v. Watkins, 113 Neb. 619, 204 N.W. 391 (1925).

Where deceased had been sending periodically sums of money for support of mother in Italy, she was entitled to compensation as dependent. Venuto v. Carter Lake Club, 105 Neb. 568, 181 N.W. 377 (1921), 104 Neb. 782, 178 N.W. 760 (1920).

Commutation of compensation payments for benefit of nonresident alien dependents discussed and rule stated. Bailey v. United States Fidelity & Guaranty Co., 99 Neb. 109, 155 N.W. 237 (1915).

2. Medical and burial allowance

Award for burial expense reduced to maximum allowed by statute at time of accident. Martin v. Frear, 184 Neb. 266, 167 N.W.2d 69 (1969).

Death benefits payable are fixed by this section. Copple v. Bowlin, 172 Neb. 467, 110 N.W.2d 117 (1961).

Widow of deceased employee was entitled to allowance for medical and funeral expense in addition to compensation at percentage of wage for three hundred and twenty-five weeks. Cole v. M. L. Rawlings Ice Co., 139 Neb. 439, 297 N.W. 652 (1941).

This section provides for burial allowance without deduction from other compensation. Aeschleman v. Haschenburger Co., 127 Neb. 207, 254 N.W. 899 (1934).

3. Miscellaneous

Workmen's compensation court and district court properly converted deceased's compensation of one-fourth of transportation charges into a daily wage rate and then to a five-day weekly wage rate. Loeffelholz v. Allied Mut. Ins. Co., 183 Neb. 112, 158 N.W.2d 219 (1968).

Award for accidental death could not rest upon possibilities, probabilities, or conjectural evidence. Wynia v. Hoesing, 167 Neb. 136, 91 N.W.2d 404 (1958).

Death from occupational disease is compensable. Hauff v. Kimball, 163 Neb. 55, 77 N.W.2d 683 (1956).

Claimant was entitled to receive the proportion of the maximum weekly amount allowed by statute that his average contribution from his wages to support of foster parents bore to the total of his wages received. McKelvey v. Barton Mills, Inc., 152 Neb. 120, 40 N.W.2d 407 (1949).

City fireman was not barred from receiving fireman's pension by having received workmen's compensation. City of Lincoln v. Steffensmeyer, 134 Neb. 613, 279 N.W. 272 (1938).