§ 97-38. Where death results proximately from compensable injury or occupational disease; dependents; burial expenses; compensation to aliens; election by partial dependents.
§ 97‑38. Where deathresults proximately from compensable injury or occupational disease;dependents; burial expenses; compensation to aliens; election by partialdependents.
If death results proximatelyfrom a compensable injury or occupational disease and within six yearsthereafter, or within two years of the final determination of disability,whichever is later, the employer shall pay or cause to be paid, subject to theprovisions of other sections of this Article, weekly payments of compensationequal to sixty‑six and two‑thirds percent (66 2/3%) of the averageweekly wages of the deceased employee at the time of the accident, but not morethan the amount established annually to be effective October 1 as provided inG.S. 97‑29, nor less than thirty dollars ($30.00), per week, and burialexpenses not exceeding three thousand five hundred dollars ($3,500), to theperson or persons entitled thereto as follows:
(1) Persons whollydependent for support upon the earnings of the deceased employee at the time ofthe accident shall be entitled to receive the entire compensation payable shareand share alike to the exclusion of all other persons. If there be only oneperson wholly dependent, then that person shall receive the entire compensationpayable.
(2) If there is noperson wholly dependent, then any person partially dependent for support uponthe earnings of the deceased employee at the time of the accident shall beentitled to receive a weekly payment of compensation computed as hereinaboveprovided, but such weekly payment shall be the same proportion of the weeklycompensation provided for a whole dependent as the amount annually contributedby the deceased employee to the support of such partial dependent bears to theannual earnings of the deceased at the time of the accident.
(3) If there is noperson wholly dependent, and the person or all persons partially dependent isor are within the classes of persons defined as "next of kin" in G.S.97‑40, whether or not such persons or such classes of persons are of kinto the deceased employee in equal degree, and all so elect, he or they maytake, share and share alike, the commuted value of the amount provided forwhole dependents in (1) above instead of the proportional payment provided forpartial dependents in (2) above; provided, that the election herein providedmay be exercised on behalf of any infant partial dependent by a duly qualifiedguardian; provided, further, that the Industrial Commission may, in itsdiscretion, permit a parent or person standing in loco parentis to such infantto exercise such option in its behalf, the award to be payable only to a dulyqualified guardian except as in this Article otherwise provided; and provided,further, that if such election is exercised by or on behalf of more than oneperson, then they shall take the commuted amount in equal shares.
Whenweekly payments have been made to an injured employee before his death, thecompensation to dependents shall begin from the date of the last of suchpayments. Compensation payments due on account of death shall be paid for aperiod of 400 weeks from the date of the death of the employee; provided,however, after said 400‑week period in case of a widow or widower who isunable to support herself or himself because of physical or mental disabilityas of the date of death of the employee, compensation payments shall continueduring her or his lifetime or until remarriage and compensation payments due adependent child shall be continued until such child reaches the age of 18.
Compensationpayable under this Article to aliens not residents (or about to becomenonresidents) of the United States or Canada, shall be the same in amounts asprovided for residents, except that dependents in any foreign country exceptCanada shall be limited to surviving spouse and child or children, or if therebe no surviving spouse or child or children, to the surviving father or mother.(1929, c. 120,s. 38; 1943, c. 163; c. 502, s. 5; 1947, c. 823; 1951, c. 70, s. 3; 1953, c.53, s. 1; 1955, c. 1026, s. 8; 1957, c. 1217; 1963, c. 604, s. 3; 1967, c. 84,s. 4; 1969, c. 143, s. 4; 1971, c. 281, s. 3; 1973, c. 515, s. 4; c. 759, s. 4;c. 1308, ss. 3, 4; c. 1357, ss. 1, 2; 1977, c. 409; 1981, c. 276, s. 1; c. 378,s. 1; c. 379; 1983, c. 772, s. 1; 1987, c. 729, s. 9; 1997‑301, s. 1;2001‑232, s. 1.)