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Dependents; terms, defined.
following persons shall be conclusively presumed to be dependent for
support upon a deceased employee: (1) A wife upon a husband with whom
she is living or upon whom she is actually dependent at the time of his
injury or death; (2) a husband upon a wife with whom he is living or
upon whom he is actually dependent at the time of her injury or death;
and (3) a child or children under the age of nineteen years, or over
such age, if physically or mentally incapable of self-support, or any
child nineteen years of age or over who is actually dependent, or any
child between nineteen and twenty-five years of age who is enrolled as
a full-time student in any accredited educational institution.
The term child shall include a
posthumous child, a child legally adopted or for whom adoption
proceedings are pending at the time of death, an actually dependent
child in relation to whom the deceased employee stood in the place of a
parent for at least one year prior to the time of death, an actually
dependent stepchild, or a child born out of wedlock. Child shall not
include a married child unless receiving substantially entire support
from the employee. Grandchild shall mean a child, as above defined, of
a child, as above defined, except that as to the latter child, the
limitations as to age in the above definition do not apply.
Brother or sister shall mean a brother
or sister under nineteen years of age, or nineteen years of age or over
and physically or mentally incapable of self-support, or nineteen years
of age or over and actually dependent. The terms brother and sister
shall include stepbrothers and stepsisters, half brothers and half
sisters, and brothers and sisters by adoption but shall not include
married brothers or married sisters unless receiving substantially
entire support from the employee.
Parent shall mean a mother or father, a
stepparent, a parent by adoption, a parent-in-law, and any person who
for more than one year immediately prior to the death of the employee
stood in the place of a parent to him or her, if actually dependent in
Actually dependent shall mean dependent
in fact upon the employee and shall refer only to a person who received
more than half of his or her support from the employee and whose
dependency is not the result of failure to make reasonable efforts to
secure suitable employment. When used as a noun, the word dependent
shall mean any person entitled to death benefits. No person shall be
considered a dependent, unless he or she be a member of the family of
the deceased employee, or bears to him or her the relation of widow,
widower, lineal descendant, ancestor, brother, or sister. Questions as
to who constitute dependents and the extent of their dependency shall
initially be determined as of the date of the accident to the employee,
and the death benefit shall be directly recoverable by and payable to
the dependent or dependents entitled thereto or their legal guardians
or trustees. No dependent of any injured employee shall be deemed,
during the life of such employee, a party in interest to any proceeding
by him or her for the enforcement or collection of any claim for
compensation, nor as respects the compromise thereof by such employee.
- Laws 1913, c. 198, § 24, p. 590;
- R.S.1913, § 3665;
- Laws 1921, c. 122, § 3, p. 531;
- C.S.1922, § 3047;
- C.S.1929, § 48-124;
- R.S.1943, § 48-124;
- Laws 1949, c. 161, § 1, p. 409;
- Laws 1971, LB 499, § 2;
- Laws 1973, LB 193, § 7;
- Laws 1986, LB 811, § 42;
- Laws 1989, LB 22, § 7;
- Laws 1997, LB 128, § 1;
- Laws 2000, LB 1221, § 5.
1. Wife2. Children3. Parents4. Miscellaneous1. Wife
- Common-law wife was a dependent entitled to compensation. Bourelle v. Soo-Crete, Inc., 165 Neb. 731, 87 N.W.2d 371 (1958).
- Where wife was living apart from
husband, and did not recognize his obligation to support her, recovery
could not be had for death of husband. Bulman v. Lyman-Richey Sand
& Gravel Corporation, 144 Neb. 342, 13 N.W.2d 403 (1944).
- Wife, involuntarily confined in
insane asylum at time of husband's death, was living with husband
within provisions of Workmen's Compensation Act. Harrison v. Cargill
Commission Co., 126 Neb. 185, 252 N.W. 899 (1934).
- Where common-law marriage was
invalid, claimant was not the widow and not entitled to compensation
hereunder. Collins v. Hoag & Rollins, Inc., 122 Neb. 805, 241 N.W.
(3) of this section is in violation of the Equal Protection Clause of
the U.S. Constitution and Neb. Const. art. I, sections 1 and 25,
because it discriminates against illegitimate children by mandating a
heavier burden of proof as opposed to a lesser burden of proof required
of legitimate children. Findaya W. v. A-T.E.A.M. Co., 249 Neb. 838, 546
N.W.2d 61 (1996).
- Determination of child's
dependency is a question of fact unless child lived with parent at
parent's death. James v. Rainchief Constr. Co., 197 Neb. 818, 251
N.W.2d 367 (1977).
- Child wholly dependent takes
death benefits to the exclusion of children partially dependent. Copple
v. Bowlin, 172 Neb. 467, 110 N.W.2d 117 (1961).
- Where child of divorced parents
did not live with and had not received support from father, child was
not a dependent so as to be entitled to compensation upon death of
employee father. Meyer v. Nielsen Chevrolet Co., 137 Neb. 6, 287 N.W.
- Children seeking compensation as
dependents of deceased must show actual dependency upon deceased.
Palmer v. Hamer, 133 Neb. 362, 275 N.W. 322 (1937).
- Contention of employer that
children are entitled to compensation only from date widow remarried,
was denied. Aeschleman v. Haschenburger Co., 127 Neb. 207, 254 N.W. 899
- A plain reading of this section
shows that "an actually dependent stepchild" is a separate qualifying
relationship from that between the deceased employee and "an actually
dependent child in relation to whom the deceased employee stood in the
place of a parent for at least one year prior to the time of death."
State v. Soto, 11 Neb. App. 667, 659 N.W.2d 1 (2003).
are not presumed to be dependents of minor children but may be found so
to be on the facts of the individual case. McKelvey v. Barton Mills,
Inc., 152 Neb. 120, 40 N.W.2d 407 (1949).
- Payment by son to parents upon
indebtedness do not make out a case of partial dependency upon son for
support. Freburg v. Central Nebraska Public Power & Irr. Dist., 142
Neb. 868, 8 N.W.2d 209 (1943).
- Where contributions are made by a
son to support of needy parents over a reasonable period of time and
with reasonable certainty as to amounts and when contributed, a finding
of partial dependency of parents upon deceased employee is warranted.
Kral v. Lincoln Steel Works, 136 Neb. 31, 284 N.W. 761 (1939).
- Evidence was sufficient to
establish nonresident mother's dependency. Venuto v. Carter Lake Club,
104 Neb. 782, 178 N.W. 760 (1920).
- Dependency is not based solely
upon a present legal obligation to support, and is not determined by
the fact that a decedent had or had not actually contributed to the
support of a parent before the date of the accident. Parson v. Murphy,
101 Neb. 542, 163 N.W. 847, L.R.A. 1918F 479 (1917).
of dependency is to be determined in accordance with the fact situation
existing at time of injury. Lighthill v. McCurry, 175 Neb. 547, 122
N.W.2d 468 (1963).
- Questions of dependency upon
death of employee are to be determined in accordance with this section.
Smith v. Stevens, 173 Neb. 723, 114 N.W.2d 724 (1962).
- Dependency in fact is not created
by contributions made by an employee for purposes other than support of
the claimed dependent. Pieters v. Drake-Williams-Mount Co., 142 Neb.
315, 6 N.W.2d 69 (1942).
- Where employee, in absence of
fraud, signed release, it is binding on dependents after his death.
Welton v. Swift & Co., 125 Neb. 455, 250 N.W. 661 (1933).
- Dependents are not necessary
parties in interest in compensation action brought in employee's
lifetime. Employee's settlement, while in full possession of mental
faculties, in absence of fraud, binds dependents. Bliss v. Woods, 120
Neb. 790, 235 N.W. 334 (1931).
- Action to recover compensation
for death may be by adult dependent, guardian or trustee of minor
dependent, or by executor or administrator of deceased. Coster v.
Thompson Hotel Co., 102 Neb. 585, 168 N.W. 191 (1918).