Each conference, I attend is an educational opportunity. Rarely, if ever, do I gain from the classroom experience. This is not to deride that opportunity but an admission of my own preferences. I gain more in individual conversations and find various nuggets to carry away.
The 2023 Worker’s Compensation forum at ChampionsGate in Orlando is no exception. At one point, I was frustrated by the absence of beverages (having consumed one too many chocolates). As I wandered in search of a store or restaurant for a soda, I coincidently ran into a longtime co-attendee of such events. He was accompanied by his two daughters, who had traveled and significant distance to the conference in order to take him for a birthday dinner. I incidentally found it endearing that the next generation would go to such lengths.
As we stood and chatted, this gentleman noted the significant investment required to obtain a college education, a subject with which I am not unfamiliar. In addition to personal experience, I have spent the last, several years working with Kids' Chance of Florida. This has been illuminating in several ways. The following are related observations:
- There is a significant volume of motivated, talented, and incredible students wishing to go to college.
- College is an expensive, and therefore, often overwhelming endeavor.
- Those challenges, financially, emotionally, and practically are aggravated by the significant injury, or death of a parent.
This gentleman posited a simple question, that drove our conversation: why does Worker’s Compensation not provide education benefits for the children of injured workers? The instant reaction to any benefit expansion is likely "expense." It is a ready and easy answer. Certainly, education is significantly expensive (see above).
That said, perhaps we could bring focus to a small subset and make a difference? In section 440.16(1)(c), there is a provision recognizing the potential developmental needs of a surviving spouse, when workplace death occurs. The statute has long existed, and provided for this potential education component:
"To the surviving spouse, payment of postsecondary student fees for instruction at any career center established under s. 1001.44 for up to 1,800 classroom hours or payment of student fees at any community college established under part III of chapter 1004 for up to 80 semester hours."
At the outset, there are no community colleges in Florida. That changed in 2009 when the "Florida Community College System" became the "Florida College System." This recognized the need for broader opportunities and the fact that these schools had begun conferring bachelor's degrees. They had evolved and changed. The name change was logical, but no one thought to amend Chapter 440 to conform.
Thus, workers' compensation will not afford a surviving spouse a Ph.D., a master's degree, or even bachelor's. But with diligence, the surviving spouse can achieve an associate's degree. Is this a “be all, end all?“ Absolutely not. It is a recognition of the benefits of higher education. It is a stimulus toward a better future. It is a beginning in the wake of tragedy. That tragedy will pass, but it will leave scars and impact in its wake.
In this regard, can we say that dependent children are in any way less burdened by the death of a parent? Can we find a similar path for this population? The first question is always about magnitude. How many children are we talking about? In the abstract, that may be difficult to quantify.
The Bureau of Labor Statistics says there are just over 300 workplace deaths in Florida each year. It fluctuates. Some of those are self-employed (not "four or more," and thus perhaps not workers' compensation). Similarly, we know that death benefits under section 440.16, are limited to those who are dependent upon the deceased employee. Anecdotally, we’re comfortable admitting that some who pass simply have no qualifying dependents.
Statistics are both illuminating and confounding. While we are comfortable that 2.4 children is an average, according to Pew. We should be equally comfortable, recognizing that there will be deviations from that average, and a particular worker may have no children or far more than average. That said, statistical averages help us quantify probability. If all 300 deaths are compensable, and each death has 2.4 dependent children, then 720 children are impacted each year. Some might not elect college, but that 720 is likely a maximum number, an overstatement.
The statute already limits death benefits to dependent children. And their entitlement under the law terminates by operation of law:
440.16(2) The dependence of a child, except a child physically or mentally incapacitated from earning a livelihood, shall terminate with the attainment of 18 years of age, with the attainment of 22 years of age if a full-time student in an accredited educational institution, or upon marriage.
Thus, not all deaths will be compensable (less than for employees), incidents involving drug impairment, incidents involving fraud in the employment contract, and various other compensability defenses. Not all employee death will involve dependent children. And dependency will be of limited duration by law.
We could acknowledge that young people are impacted by the work death of a parent. Those impacts will be emotional and impactful. They will be far-reaching, and, long-lasting. I’ve been privileged to meet a handful of exceptional children, who are confident, proficient, and focused. The Kids' Chance scholarship recipients are nothing short of inspiring. This is perhaps due in part to the great responsibility thrust on them by a parent's work place injury. Or perhaps they can thank parents, teachers, and other mentors?
All that said, would it be reasonable to offer the equivalent boost to the children of workers killed in compensable accidents? The right place for this might seem to be 440.16(1)(c). Some would advocate adding "and dependent children" to that section. But there is a statute of repose in that paragraph that terminates the entitlement 7 years after the death. That would not be appropriate for the dependent children in many instances. Instead, perhaps a new 440.16(1)(d)
"To the dependent child, dependency determined as of the date of accident, payment of postsecondary student fees for instruction at any career center established under s. 1001.44 for up to 1,800 classroom hours or payment of student fees at any state college established under part III of chapter 1004 for up to 80 semester hours. Eligibility terminates for the purpose of this section no later than the dependent child's attainment of 22 years of age."
This would provide those impacted in this profound manner with a boost. It would make college or vocational training an attainable goal that every such child would know of and could work towards. Their academic efforts would be encouraged and invested knowing that those first two years, that associate's degree, would be attainable without debt. Or that their vocational goals would otherwise be attainable.
There should likely be recognition of this broader impact on family, that is beyond the ultimate sacrifice, broader impact potential from a work injury. Therefore, effort should be encouraged to inform injured workers that scholarship opportunities exist. There is a broad requirement for information to be provided in section 440.185(3). That section dictates the distribution of an "informational brochure" to each injured worker. That brochure should inform all workers of the potential for any financial assistance that a worker or family might engage for educational opportunities:
(3) Within 3 business days after the employer or the employee informs the carrier of an injury, the carrier shall send by regular mail or e-mail to the injured worker an informational brochure approved by the department which sets forth in clear and understandable language an explanation of the rights, benefits, procedures for obtaining benefits and assistance, criminal penalties, and obligations of injured workers and their employers under the Florida Workers’ Compensation Law.
What if this were amended to include some edification of educational benefits from private sources. What if the following were added to that paragraph
This shall inform of any potential private educational assistance available to the children of an injured worker.
Would the injured benefit from their children being able to locate scholarship information or connections? Would individual's potential for college be improved by a scholarship or two? Would the addition of this language significantly impact costs? Doubtful. This notification would likely benefit many and cost nothing.
These are inspired ideas. I wish I could take credit for these. Thanks to that co-attendee for being mindful, and for asking questions. This could be a benefit adjustment that is of significant benefit to those severely impacted by death of a family member.
