Death Benefit and Partial Dependency

Death Benefit and Partial Dependency


The New Year started up with a bang for Mays Law Office with a significant settlement for parents, Mr. & Mrs. T, who received a sizable amount due to the death of their 29-year-old son.

Son died in 2022 in a fiery crash while traveling to a worksite.  In Wisconsin, when a death occurs at work, the workers compensation carrier for the employer must pay a death benefit equal to four times the employee’s average annual earning, subject to a maximum amount.  This money is paid to the Dependent(s) of the injured employee who died.  The law is clear, according to Wis. Stat. sec. 102.51(2)(a):

No person shall be considered a dependent unless that person is a spouse, a domestic partner [under Wis. Stat. ch. 77], a divorced spouse who has not remarried, or a lineal descendant, lineal ancestor, brother, sister, or other member of the family, whether by blood or by adoption, of the deceased employee

If Total Dependency cannot be established (often the case seen for parents of adult children), the surviving parent(s), if not estranged from the deceased employee, are automatically entitled to a benefit of at least $6500 Wis. Stat. sec. 102.48(1).  In addition, if the deceased employee contributed at least $500 in support to the parents in the 52 weeks before the death then they also may claim further benefits through either Total or Partial Dependency.

In the matter of Mr. and Mrs. T, their 29-year-old Son passed away at the age of 29 without a wife or child.  At the time of his death, he lived with his parents sleeping in his childhood bedroom to help his parents with the house and Wisconsin family farm.  Son’s help was greatly needed because his father, Mr. T, is an amputee with other ailments and Mrs. T was recovering from cancer.

Son’s contributions to the house and farm were significant.  While he never directly contributed monies to his parents, he contributed by providing machinery, labor, and goods to the house and farm business.  Son was more skilled than most farm laborers, in his ability to weld, farm equipment maintenance, concrete pouring, car maintenance, etc.  His contributions were significant, but never recorded, or itemized with documentation in writing, such as receipts, payments proven by bank account deposits, journaled, or memorialized making their credibility difficult to prove beyond verbal assertions.  However, it was clear that there was some level of dependency Mr. & Mrs. T had on their son in the 52 weeks leading up to his death.

Testimony from several witnesses would have been offered to establish son’s support and efforts in shoveling snow, pressure washing, farm labor, home chores, improvement projects, lawn and field care, and vehicle maintenance.   Son’s contributions to the house and farm were unique and invaluable.  He was literally second hand to Mr. T on the farm, which included skilled tasks, such as concrete pouring, machinery repair, welding, and electrical.  Around the house, he did all the car maintenance, landscaping, Spring and Fall clean-up.  Son also contributed to purchasing tools, equipment, machinery, and a truck to be used on the farm business.  But again, no written documentation could actually prove it, such as in a Leasing Agreement.  The only proof was testimony and receipts of son’s purchases, however the hours that such machinery was used/borrowed by the farm was no more than a best guess estimate so the valuation of such was dubious at best.

Regardless of such proof problems, the workers compensation carrier was still required to pay 4x of the son’s annual earnings, but the money would be held by the Wisconsin Injury Supplemental Benefit Fund (WISBF) until the issue and extent of partial dependency was established.  So, Attorney Lisa Pierobon Mays filed for Hearing naming the State of Wisconsin Department of Justice as Respondent as they were charged with defending the Fund’s disbursement, holding, and use of the money.  WISBF is a fierce zealot in protecting its money, so in response, WISBF/DOJ asserted that the son provided no more than what a grown son would be expected to do for his parents.  An insulting defense and one where Attorney Pierobon Mays retorted back that adult children have their own busy lives to lead with family, job, and social commitments of their own to take care of.  While an adult child generally does help with some basic household chores, Mr. and Mrs. T’s son’s contributions, for the 52 weeks preceding his death, went above and beyond what an adult child would reasonably be expected to do.  This son was an exceptional human being according to all that knew him.

The WISBF also defended that Mr. and Mrs. T’s claim was excessive in the amount they demanded considering no documentation was available to prove all of son’s contributions.  The WISBF claimed that the death benefit money is better disbursed to widows and orphans of deceased workers, rather than Mr. & Mrs. T.  Attorney Lisa Pierobon Mays pointed out that Wis. Stat. sec. 102.48(2) does not give priority, under a partial dependency claim, to unrelated widows and orphan children where partial dependency is alleged.

At Mediation, the WISBF/DOJ relented and conceded that partial dependency of son to Mr. and Mrs. T did exist, and a sizable offer was made to settle the claim shy of a Hearing.

Now, Attorney Pierobon Mays did not stop advocating for Mr. and Mrs. T because she had also filed a Penalty claim against the employer’s workers compensation insurance carrier for failing to properly handle the file right after their son’s death.  Think back to the beginning of this article when you read that if no Total Dependency by wife or child is found, then a portion of the death benefit (4x average annual earnings) goes to the non-estranged parent(s) of the deceased employee.  Non-estranged parents are automatically entitled to a benefit of at least $6500 under Wis. Stat. sec. 102.48(1).  The significant word is “automatically.”

Despite demands by Attorney Lisa Pierobon Mays to the workers compensation carrier to make an automatic payment of $6500 to Mr. and Mrs. T, the carrier and their attorney ignored and refused to do so.  In response, Attorney Lisa Pierobon Mays filed a penalty claim against them forcing their hand to make payment.  However, the damage had been done in not doing so sooner.

At Mediation, this Penalty was also pursued and payment in the amount of $3000 (almost ½ of the =$6500) was offered to resolve the claim shy of a Hearing. Attorney Pierobon Mays and her clients agreed that this was enough of a stinging slap on the wrist so that this type of misconduct would hopefully not happen in the future to other grieving parents.

OWI Plea Bargain: Should You Consider for Your Wisconsin Case?

OWI Plea Bargain: Should You Consider for Your Wisconsin Case?

When you get an OWI in Wisconsin, you have three primary options for resolving your case. If you are eligible, you can enter into a diversion program that allows you to keep a clean record. If you aren’t eligible (or if you have grounds to fight your OWI), you can take your case to court. Alternatively, you can seek a plea bargain. While negotiating a plea bargain doesn’t allow you to keep a clean record, it does allow you to avoid the harshest consequences of an OWI conviction.

What is a Plea Bargain?

Before we talk about when you should consider a plea bargain, we first need to discuss exactly what it means to seek a plea bargain in a Wisconsin OWI case. There are three key aspects to plea bargaining in Wisconsin:

  • Seeking a Plea Bargain Involves Negotiating with the Prosecutor’s Office – Seeking a plea bargain involves working with the prosecutor’s office. Prosecutors get paid to secure convictions, and they will fight vigorously to hold drunk drivers accountable. But, they also have substantial caseloads, and they have the authority to resolve cases via plea bargain when it makes sense to do so. As a result, plea bargaining will often be in both parties’ best interests, and leveraging this fact can help facilitate favorable plea negotiations.
  • Accepting a Plea Bargain Means Pleading Guilty (or “No Contest”) to an Offense – While accepting a plea bargain allows you to avoid the harshest consequences of an OWI conviction, it still means pleading guilty (or “no contest”) to an offense. This means that you will have a conviction on your record—and this alone warrants careful consideration when deciding how to approach your OWI case.
  • Accepting a Plea Bargain Means You Won’t Have to Go to Trial – When you accept a plea bargain, you don’t have to go to trial. Before you accept a plea, you will know exactly what penalties you will face, and you can use this information to make an informed decision. In contrast, the outcome of trial is never guaranteed, and an OWI conviction in court can have life-altering consequences.

Understanding how plea bargains work is essential for deciding how to approach your OWI case. If you accept a plea bargain, your options for appealing the outcome of your case will be limited, so it is critical to ensure that you are making informed decisions.

What Types of Plea Bargains Are Available in a Wisconsin OWI Case?

There are three primary types of plea bargains in Wisconsin. When deciding whether it makes sense to seek a plea bargain, you need to determine which type (or types) the prosecutor’s office will likely be willing to consider based on the facts of your case. In a Wisconsin OWI case, a plea bargain can involve:

  • Pleading to a Lesser Offense (i.e., a “Wet Reckless”) – Many OWI plea deals involve pleading guilty (or “no contest”) to a lesser offense. In most cases, this involves accepting responsibility for reckless driving, which is commonly referred to as a “wet reckless” in this context.
  • Pleading to OWI in Exchange for a Reduced Sentence – Another option is to plead guilty (or “no contest”) to OWI in exchange for a reduced sentence. However, due to the substantial consequences of having an OWI on your record, it will make more sense to plead to a lesser offense (if possible) in most cases.
  • Pleading to One Charge in Exchange for Having Another Charge Dropped – If you are facing multiple charges as a result of your OWI arrest, a third option may be to plead to one charge in exchange for having another charge dropped. Just like the other options discussed above, when seeking this type of plea deal, it is critical to ensure that you have a clear understanding of the consequences involved.

While these are the basic structures of plea bargains in Wisconsin, individual plea bargains can be much more complex—and they may involve a combination of the above. If you decide to seek a plea bargain, you will need to work closely with your OWI defense lawyer to ensure that you are seeking a favorable deal in light of the facts at hand.

When Should You Consider a Plea Bargain After an OWI Arrest?

With this information in mind, when should you consider a plea bargain after an OWI arrest in Wisconsin? Deciding whether to seek a plea bargain requires a thorough assessment of all relevant facts and circumstances. As a result, it is critical to work with an experienced OWI defense lawyer who can help you evaluate your options.
When you speak with an experienced OWI defense lawyer about your case, your lawyer will help you consider factors such as:

What is Your Likelihood of Facing a Conviction at Trial?

There are several defenses to OWI charges under Wisconsin law. If you have strong grounds to fight your OWI charge, then accepting a plea deal may not be your best option.

Do You Qualify for a Diversion Program?

Even if you don’t have strong grounds to fight your OWI charge, accepting a plea deal still may not be your best option if you qualify for a diversion program. Entering into (and successfully completing) a diversion program allows you to avoid a conviction entirely.

What Can You Reasonably Expect from a Plea Bargain in Your Case?

Before seeking a plea bargain, it is also important to assess what you can reasonably expect from the process. If the facts of your case are such that the prosecutor’s office is unlikely to offer a favorable plea deal, you may be better off taking your case to court.

Request a Free OWI Defense Consultation at Mays Law Office in Middleton, WI

Do you need to know more about plea bargaining in Wisconsin OWI cases? If so, we encourage you to contact us promptly. To request a free consultation with an experienced OWI defense lawyer at Mays Law Office, please call 608-257-0440 or submit your information online today.