In re Whitman ( 1922 )

Remy, J.

— On July 15, 1918, one Lawrence Whitman, while in the employment of the Fork Ridge Mining Company, received an injury by accident arising out of and in the course of his employment resulting in his death the same day. On July 31, 1918, the' widow and five minor children of Whitman entered into a compensation agreement with the mining company, which agreement stipulated the facts as to the employment, wages and death of Whitman, and that he left as his dependents such widow and children who were to receive the sum of $13.20 per week for a period of three hundred weeks, the same to be paid to the widow whose individual receipt each month would acquit the employer as to all of the dependents. Pursuant to this agreement, which on the date of its execution was approved by, and became the award of, the Industrial Board, the weekly payments were made to and including March 20, 1921, on which day the widow died. Thereafter, the employer filed with the Industrial Board its application for a review on account of changed conditions, asking that it be not required to make further payments.

Pending the employer’s application for review, the Industrial Board submits to this court the following questions: 1. Would an award by the Industrial Board terminating all compensation from and after March 20, 1921 (the date of the death of the widow of Lawrence Whitman), be according to law? 2. Would an award by the Industrial Board requiring the payment for the unexpired portion of the three hundred weeks, of the full weekly compensation to the children of Lawrence Whitman named in the compensation agreement, and who had not attained the age of eighteen years on or before March 20, 1921, subject to the termination of their dependence prior to the expiration of said three hundred weeks, be according to law?

The award of the Industrial Board, made on July 31, 1918, to the widow and children of Lawrence Whitman, was in accordance with the provision of §37 of the Workmen’s Compensation Act (Acts 1915 p. 392, §80201 et seq. Burns’ Supp. 1918) that: “Where death results from the injury within three hundred weeks, there shall be paid in addition to burial expenses not to exceed one hundred dollars, a weekly compensation equal to fifty-five per cent, of the deceased’s average weekly wages during such remaining part of three hundred weeks as compensation shall not have been paid to the deceased for total or partial disability, to all dependents of the employee wholly dependent upon his earnings for support at the time of the injury.” Section 38 of the Workmen’s Compensation Act (Acts 1915 p. 392, supra) contains the following provisions: “The following persons shall be conclusively presumed to be wholly dependent for support upon a deceased employee: (a) A wife upon a husband with whom she lives at the time of his death; (c) A boy under the age of 18, or a girl under the age of 18, upon the parent with whom he or she is living at the time of the death of such parent, there being no surviving dependent parent. * * * As used in this section, the term ‘boy,’ ‘girl’ or ‘child’ shall include stepchildren, legally adopted children, posthumous children, acknowledged illegitimate children, but shall not include married children. * * * In all other cases, questions of dependency, in whole or in part, shall be determined in accordance with the fact, as the fact may be at the time of the injury;” etc.

It is apparent, that the parties in executing the compensation agreement, and the board in making the award thereon, proceeded upon the theory that under the above provisions of the Workmen’s Compensation Act, supra, which were in force at that time, the award might be made not only to the widow, but to the children as well, if all were in fact wholly dependent upon the employe, who had lost his life, and that finding all wholly dependent the award was so made. It is the contention of the Fork Ridge Mining Company, that, within the meaning of §38, supra, children of an employe who lost his life by an accident arising out of and in the course of his employment, where such children are living with a surviving parent, cannot be wholly dependent, and that the award based on the compensation agreement, though purporting to be to the widow and children must be held to be an award of compensation to the widow only, and that the obligation to pay compensation for the death of the employe terminated upon her death.

The questions raised by the employer, and which are presented to us by the Industrial Board, are not difficult, and will not be made to appear difficult by an extended discussion. Section 37, supra, provides that where death results from an injury within three hundred weeks, compensation shall be paid “to all dependents of the employe wholly dependent upon his earnings for support at the time-of the injury.” Section 38, supra, designates those who are “conclusively presumed” to be wholly dependent upon a deceased employe, among them being a wife who is living with her husband at the time of his death. Children under the age of eighteen years, living with a parent, there being a surviving dependent parent, as in the case under consideration, are not, under the statute, conclusively presumed to be wholly dependent. Whether or not such children are wholly dependent is a question of fact for the Industrial Board. It follows, that the first question submitted must be answered in the negative, and the second in the affirmative.