Claim by personal representative of deceased workman the award terminating the rights of the workman was not a bar to the claim by the dependents. Jobson v. W. Cory & Sons (1911), 4 B. W. C. C. 284. 23. Claim for compensation by personal representative of deceased dependent. The right to compensation growing out of the death of a workman passes to the personal representatives of the deceased dependent. Darlington v. Roscoe & Sons (1906), 8 W. C. C. 4. Some of the statutes provide that upon the death of a dependent compensation as to him or her ceases. Where the death benefit is a fixed sum or is capable of computation as for a specific number of weeks and there is no provision terminating the payments at the death of the dependent it would appear that the benefits would pass to the dependent's next of kin upon the death of the dependent. Where a dependent dies without having made claim for compensation under the Act, the legal representatives of such dependent may claim compensation as the right to make claim became vested in the dependent at the time of the death of the workman and survived to the legal representatives of the dependent. (House of Lords), United Collieries v. Hendry (1909), 101 L. T. 129; A. C. (H. L.) 383; 2 B. W. C. C. 308. Where a widow, of a workman whose death has been caused by accident in his master's service, makes application for compensation and subsequently dies the personal representative of such widow can recover the same compensation that the widow could have recovered even though such representative is not a dependent of the deceased workman. Darlington v. Roscoe & Sons (1910), 96 L. T. 179; 9 W. C. C. 1. The court discusses but does not decide the question of whether or not the representative of the widow could have recovered if the widow had not applied for compensation before her death. The court discussed the Irish case of O'Donovan v. Cameron, Swan & Co. (1901), 2 Irish R. 633; wherein it was held that the personal Orphan's claim under Quebec Act representative of a deceased dependent who had not made application for compensation before her death could not recover, and distinguished the two cases on the ground that in one the dependent had made claim for compensation before her death and in the other she had not made such claim. The right of a mother to claim compensation because of the death of her son, upon whom she was dependent, vests in her at the time of her son's death and the personal representatives of the mother can maintain a proceeding for such compensation, even though the mother failed to take proceedings during her lifetime. Hendry v. United Collieries (1908), 45 Scotch L. R. 944; 1 B. W. C. C. 289. The Massachusetts Industrial Accident Board has ruled that in cases of fatal injuries the right of a dependent to compensation is a vested interest, which passes to the dependent's representatives on his death. Bulletin No. 2, January, 1912. Many of the acts contain specific provisions on this subject. Doubtless the rule adopted by the Massachusetts Board would apply in those cases when the statute provided for compensation for a specific number of weeks in a death case and there were no specific provisions in the statute as to the termination of such payments upon the death of the dependent. 24. Orphan whose mother died prior to death of workman, compensation under Quebec Act. Under the Compensation Act of the Province of Quebec compensation is payable in the case of death "to legitimate children, or illegitimate children acknowledged before the accident, to assist them to provide for themselves until they reach the full age of sixteen years." The same statute provides that "when the accident causes death, the compensation shall consist of a sum equal to four times the average yearly wages of the deceased at the time of the accident, and shall in no case, except in the cases mentioned in Ar Arizona ticle 5, be less than $1,000 or more than $2,000." Article 5 provides that "no compensation shall be granted if the accident was brought about intentionally by the person injured. The court may reduce the compensation if the accident was due to the inexcusable fault of the workman, or increase if it is due to the inexcusable fault of the employer." It was held by the Montreal Supreme Court under this statute that an orphan whose mother had died prior to the accident to his father, was entitled to receive the full sum with a minimum of $1,000 and a maximum of $2,000 under Sec. 3, notwithstanding the limitation to the effect that children were to receive assistance until they reached the age of sixteen years. The defendant contended that its only obligation was to the extent of such a sum as would provide for the maintenance and education of the boy until he reached his sixteenth year. Palmarei v. Grand Trunk Ry. Co., Market World & Chronicle (N. Y.), October 26, 1912, p. 534. ARTICLE C-SPECIFIC PROVISIONS OF VARIOUS STATUTES WITH NOTES OF ADJUDICATED CASES ARIZONA L. 1912, 2d Ses., "§ 72, (3). When the death of the workman results from the accident within six months thereafter, and the workman, at the time of his death, leaves a widow, and a minor child, or children dependent on such work- Art. 14, 48. man's earnings for support and education, then the employer shall pay to the personal representative of the deceased workman for the exclusive benefit of such widow and child, or children, a sum equal to twenty-four hundred times one-half the daily wages or earnings of the decedent, determined as aforesaid, but in no event more than the sum of four thousand dollars ($4,000.00). Such sum shall be paid in lump and held in trust by such representative for such widow and children and applied by him to the support of the widow while she remains unmarried, and to the support and California education of the children so long as necessary, and until eighteen (18) years of age, in such way and manner as to him shall seem best and just, under and in accordance with the directions of the court having jurisdiction of the estate of the decedent; any balance remaining unapplied at the closing of the estate of the decedent shall be distributed to the decedent's widow (if still his widow), and the children or next of kin, as provided by the law of descents. The personal representative may pay out of said fund the reasonable and necessary expenses of medical attendance and burial of the decedent. If the workman leaves no widow or child, or children, but a father or mother or sister dependent on him for support, then said sum shall be for their benefit to be applied as above provided. If the deceased workman leaves no widow, children, or other dependents, then the employer shall pay the reasonable expenses of medical attendance upon the decedent and also provide and secure his burial in a proper cemetery, which may be chosen by the friends of the decedent." CALIFORNIA 1 “§ 15. *** (c) If the accident causes death, either with or without disability, a death benefit which shall be payable 1 Except as otherwise provided by the Roseberry Act of 1911, it was held that dependency was a question of fact to be determined by the Board. Where, therefore, the deceased made contributions to his sister for her support, and the money so contributed was actually used and was necessary therefor, it was held that the sister was a dependent of the deceased, even though she was living with her husband and by law the husband was charged with the duty to support her. Ralins v. Great Western Power Co., Cal. Indus. Acc. Bd., Dec. 5, 1912. Under subdivision 3 of § 9 of the Roseberry Act it was held that where an employé left a wife and minor child, that the wife was conclusively presumed to be solely and wholly dependent upon the decedent and the minor was not entitled to any portion of the award. Therefore, it was further held that the minor was not a necessary or proper party to the application to recover compensation. McAvin v. City Electric Co., Cal. Indus. Acc. Bd., March 8, 1912; aff'd by Superior Court. A person partially dependent upon deceased is entitled to such percentage of three times the average annual earnings of deceased as the amount California in installments equal to sixty-five per cent of the average weekly earnings of the deceased employee, upon the employer's regular pay-day, but not less frequently than twice in each calendar month, unless otherwise ordered by the commission, which death benefit shall be as follows: given by the deceased to the support of such person bears to such average earnings. Ralins v. Great Western Power Co., Cal. Indus. Acc. Bd., Dec. 5, 1912. Applicants claimed the benefit on account of the death of Hilden Nelson, who was a son of Annie N. Nelson, one of the applicants, and a brother of Elmer Nelson, a minor, also an applicant. Deceased was electrocuted while in the employ of the defendant. The issue was the status of the dependents and the amount payable as death benefit. Held that applicants were dependents within the meaning of the law and entitled to the death benefit of $4,050, to be divided equally between them. Nelson v. Great Western Power Co., Cal. Indus. Acc. Bd., Sept. 16, 1913. Applicant was the mother of Clarence P. Dodge, who was killed while in the employ of the defendant. The company admitted liability for compensation but claimed there were no dependents. Held that the defendant's contention was valid, because she had married again, lived in an unencumbered home owned by applicant, that she did not have any children or other persons dependent upon her, and that she had been supported since 1894 through the earnings of her present husband, Orris S. Wentworth. Wentworth v. Pacific-Wakefield Co., Cal. Indus. Acc. Bd., Feb. 24, 1913. William and Emma Crase filed an application on account of the death of their son, Ernest S. Crase, who met his death while descending a shaft in the mine owned by the defendant. Held that the death resulted from industrial accident, which was the main point of controversy, and that the parents were entitled to a pro rata of the earnings of the deceased, which were estimated at 34.2 per cent of his annual earnings of $766.00, the total amount being $785.92, to be paid in weekly installments of $14.73. This case was appealed to the Superior Court of the County of Nevada, California, and the decision of the Industrial Accident Board sustained. Crase v. North Star Mines Co., Cal. Indus. Acc. Bd., March 14, 1913. This application was filed on account of the death of applicant's son, James Russell. Applicant died on December 9, 1912, during the pendency of the controversy, and therefore the Board issued an order dismissing the application. Russell v. Lachman & Jacobi, Cal. Indus, Acc. Bd., June 18, 1913. |