When a Worker's Life Is Worth Half: How South Carolina Can Cut Death Benefits for Families Abroad

In South Carolina, if a worker dies on the job and his family lives outside the United States or Canada, the Workers' Compensation Commission can cut the family's death benefits in half. Section 42-9-290 of the South Carolina Code allows the Commission, on its own or at the insurance carrier's request, to pay those families a lump sum worth one-half of the remaining benefits. The statute gives no factors, no standards, and no reason. Courts in Florida and Kansas have struck down similar laws as unconstitutional. South Carolina's has gone unchallenged for decades.

In This Article

• How I Came to See This Problem
• What South Carolina Law Says
• How the 50% Reduction Works
• Who Owns the Right to Death Benefits?
• How Other States' Courts Have Ruled
• Why the Statute Fails Equal Protection
• How the Statute Breaks the Workers' Compensation Bargain
• Frequently Asked Questions

How I Came to See This Problem

Over the past two years, I have built a workers' compensation practice almost by accident, no pun intended. Being a bilingual attorney often means working with Hispanic workers who are injured while working as laborers. Not surprisingly, most of these cases come out of the construction industry. It has been astounding how many people fall off roofs. And some of them do not make it.

I have found that the workers' compensation system is not fair, and it was made that way by design. More importantly, I have seen the disparate treatment of Hispanic workers within the system, especially when one dies on the job.

What South Carolina Law Says About Death Benefits for Families Abroad

In South Carolina, if a worker dies on the job, his family is not always treated the same under the law. If his beneficiaries live outside the United States and are not resident aliens, the Workers' Compensation Commission can, by statute, cut the death benefits in half for no stated reason.

And it gets worse. The statute doesn't provide any factors. No elements. No standards. It does not tell the Commission when it should apply the reduction or why. It just gives the Commission the discretion to do it. The statute states:

"Compensation under this title to aliens not residents (or about to become nonresidents) of the United States or Canada is the same in amount as provided for residents, except that dependents in any foreign country are limited to a surviving spouse and child or children or, if there be no surviving spouse or child, to a surviving father or mother whom the employee has supported, either wholly or in part, for a period of three years before the date of the injury, and except that the commission may, at its option, or upon the application of the insurance carrier, commute all future installments of compensation to be paid to such aliens by paying or causing to be paid to them one-half of the commuted amount of future installments of compensation as determined by the commission."

S.C. Code Ann. § 42-9-290(A)

The statute provides no guidance beyond its own language. As written, it is a discretionary 50% cut to a worker's death benefits when his beneficiaries live outside the country.

How the 50% Reduction Works in Practice

South Carolina death benefits are normally paid weekly: 66 and two-thirds percent of the worker's average weekly wage for 500 weeks, plus up to $12,000 in burial expenses. "Commuting" means converting those future weekly payments into a single lump sum. For a family in the United States, a commuted award reflects the full value of the remaining payments. For a family in Mexico, Guatemala, or Honduras, the Commission can order a lump sum of half that value, and the insurance carrier can ask it to.

The statute also narrows who can collect. A family in the U.S. may include other dependents, but for a family abroad, only a spouse and children qualify, or a parent the worker supported for three years before the injury.

Fatal construction falls are among the most common ways these cases begin. Our library article on wrongful death claims in SC construction site accidents explains how those cases are investigated.

Who Actually Owns the Right to Death Benefits?

This law has gone largely unchallenged in South Carolina for decades. But South Carolina is not alone. Other states have had, and still have, similar statutes, and courts have gone both ways on whether they pass constitutional muster. The fight usually comes down to one question: who actually owns the right to these benefits?

If the Benefits Belong to the Family Abroad

Some courts say the benefits belong to the beneficiaries. Under that view, if the beneficiaries are nonresident aliens outside the United States, they cannot assert equal protection rights, and the claim ends there. That approach creates a deeper problem. The law targets a group while removing that group's ability to test its validity. If the only people affected by the statute are nonresident alien beneficiaries, and those same beneficiaries are said to have no constitutional protections, then challenging the statute on constitutional grounds becomes impossible. See Jarabe v. Indus. Comm'n, 666 N.E.2d 1 (Ill. 1996); see also Barge-Wagener Constr. Co. v. Morales, 429 S.E.2d 671 (Ga. 1993). (Since that Georgia decision, the legislature has removed this provision from its statute altogether.)

If the Benefits Belong to the Worker

Other courts have recognized this problem and taken a different approach. They treat workers' compensation benefits as part of the worker's property rights, the product of his labor and the tradeoff for giving up the right to sue. That view changes the constitutional analysis.

That is exactly what happened in De Ayala v. Florida Farm Bureau Casualty Insurance Co., 543 So. 2d 204 (Fla. 1989). The Florida Supreme Court did not treat the claim as depending only on the foreign beneficiaries' own constitutional rights. Instead, the court focused on the rights of the worker: what he earned during his life, and whether he was entitled to the same fruits of his labor and the same protection as everyone else. It held that the reduction in death benefits violated the worker's constitutional right to equal protection. Kansas followed the same reasoning and held a similar provision unconstitutional. See Jurado v. Popejoy Constr. Co., 853 P.2d 669, 671 (Kan. 1993).

How Other States' Courts Have Ruled

Why South Carolina's Statute Fails Equal Protection

Classifications based on alienage are inherently suspect and subject to close judicial scrutiny. Graham v. Richardson, 403 U.S. 365 (1971). The Supreme Court explained that aliens are a discrete and insular minority for whom heightened judicial solicitude is appropriate, and that rights created by state law cannot be restricted on that basis without a compelling justification.

That protection extends to people working in the "common occupations of the community." Sugarman v. Dougall, 413 U.S. 634 (1973). Similarly, in Weber v. Aetna Casualty & Surety Co., 406 U.S. 164 (1972), the Court rejected a scheme that gave certain dependents inferior treatment where the classification had no significant relationship to the purposes of workers' compensation. In other words, classifications that undermine the purpose of the system do not survive constitutional review.

Death Benefits Are a Property Interest

That is exactly what is happening here. Workers' compensation in South Carolina is a legislatively created substitute for tort liability. The employee gives up the right to sue. The employer gets immunity. In exchange, the State guarantees defined statutory benefits. Those benefits exist because state law creates them. See Board of Regents v. Roth, 408 U.S. 564 (1972). And South Carolina has recognized that entitlement to those benefits is a property interest. Last v. MSI Construction Co., 305 S.C. 349 (1991). Section 42-9-290(A) cuts that property right in half based on alienage, and it does so without any standard, without any requirement of proof, and without any connection to the purpose of the Act.

The Canada Exception Has No Explanation

Even under a lower level of review, the statute has problems. It draws a line between countries. Canadian beneficiaries receive full benefits. Others do not. The statute provides no explanation for that distinction. As the court pointed out in De Ayala, that kind of distinction is hard to justify. The Florida Supreme Court questioned what possible state purpose could justify giving full benefits to Canadian dependents while denying them to others, and emphasized that the residence and citizenship of dependents are factors foreign to the purpose of workers' compensation.

How the Statute Breaks the Workers' Compensation Bargain

Separate from the constitutional issue, this statute doesn't fit with what workers' compensation is supposed to be. The purpose of the system is to create a clear, predictable structure. Workers give up their right to sue. Employers get immunity. In exchange, there is supposed to be a defined system that pays benefits quickly and consistently. To learn more about how that system is supposed to work for injured workers, see our page on South Carolina workers' compensation claims.

This statute does the opposite. It creates uncertainty. It creates litigation. It forces families to fight over whether they get full benefits or half. Instead of a predictable system, you get a discretionary one with no rules. And it creates a basic fairness problem.

Two workers do the same job. Earn the same wages. Suffer the same fatal injury. One family gets full benefits. The other gets half.

Workers pay into this system with their labor, and in some cases through taxes that support uninsured employer funds. The deal is simple: if something happens, your family is taken care of. This statute breaks that deal. And it does it quietly. No standards. No explanation. Just a discretionary decision that can cut a family's recovery in half.

Workers' compensation is not always the only path, either. When a general contractor, property owner, or equipment manufacturer contributed to a fatal fall, the family may have a separate claim that the § 42-9-290 reduction does not touch. Our guides to SC third-party liability laws for work-related injuries and filing wrongful death claims for fatal workplace accidents explain those options.

This Statute Should Be Challenged

The provisions of § 42-9-290 that allow the Commission to cut a worker's death benefits in half need to be challenged. Their purpose is hard to justify, and this is precisely why the guarantee of equal protection exists in the United States.

Frequently Asked Questions About Workers' Compensation Death Benefits for Families Abroad

Can South Carolina reduce workers' compensation death benefits for a family that lives outside the United States?

Yes. Under S.C. Code § 42-9-290, when a worker's dependents are nonresident aliens living outside the United States or Canada, the Workers' Compensation Commission may, on its own or at the insurance carrier's request, convert the remaining weekly payments into a lump sum worth one-half of the commuted amount. The statute gives no factors or standards for when the Commission should do this.

Who counts as a dependent if the worker's family lives in another country?

Dependents living in a foreign country are limited to a surviving spouse and children. If there is no surviving spouse or child, a father or mother can qualify only if the worker supported them, wholly or in part, for three years before the injury. Other relatives who could qualify if they lived in the U.S. are excluded.

How much are workers' compensation death benefits in South Carolina?

South Carolina pays eligible dependents 66 and two-thirds percent of the worker's average weekly wage for 500 weeks from the date of injury, subject to a $75 weekly minimum and the state maximum weekly rate, plus burial expenses of up to $12,000. For families abroad, a commutation under § 42-9-290 can reduce the total to half of that commuted value.

Have courts struck down laws that cut death benefits for nonresident alien families?

Some have. The Florida Supreme Court in De Ayala v. Florida Farm Bureau (1989) and the Kansas Supreme Court in Jurado v. Popejoy Construction (1993) held similar reductions violated equal protection because the benefits belong to the worker. Illinois in Jarabe v. Industrial Commission (1996) and Georgia in Barge-Wagener v. Morales (1993) went the other way. South Carolina's statute has not been successfully challenged.

Is an undocumented worker covered by workers' compensation in South Carolina?

Yes. The South Carolina Supreme Court held in Curiel v. Environmental Management Services (2007) that undocumented workers are employees under the Workers' Compensation Act. A worker's immigration status does not by itself bar a claim. The § 42-9-290 reduction turns on where the dependents live, not on the worker's status.

Can the family of a worker killed on the job sue anyone besides the employer?

Often, yes. Workers' compensation bars most lawsuits against the employer, but a family may bring a wrongful death claim against a third party whose negligence contributed to the death, such as a general contractor, property owner, equipment manufacturer, or negligent driver. A third-party claim is not subject to the § 42-9-290 reduction.

How long does a family have to file a workers' compensation death claim in South Carolina?

A claim generally must be filed with the South Carolina Workers' Compensation Commission within two years after the accident, or within two years after the death when the worker dies from the injury. Families living abroad should contact a lawyer quickly because gathering proof of dependency from another country takes time.

Talk to a Bilingual South Carolina Workers' Compensation Lawyer

If your loved one died on a job site in South Carolina and your family lives in another country, you should not have to accept half of what the law promises every other family. Attorney Alejandro Guarin and the South Carolina wrongful death lawyers at Pracht Injury Lawyers represent injured workers and their families in English and Spanish, and we pursue every available source of recovery, including third-party claims outside the workers' compensation system. Hablamos español.

We have offices in Anderson, Greenville, Charleston, Irmo, and Camden. Consultations are free, and you pay nothing unless we recover for you. Call 864-712-7317 or contact us online. Let us help!