Appeal from the Circuit Court of Madison County; the Hon.
Clayton R. Williams, Judge, presiding.
JUSTICE KASSERMAN DELIVERED THE OPINION OF THE COURT:
Rehearing denied November 13, 1984.
On October 29, 1971, Raymond Smith suffered a severe electrical shock in the course of his employment with respondent, A.O. Smith Corporation (A.O. Smith Corp.). He became comatose and died on June 3, 1980, without ever regaining consciousness. Petitioner, Peggy J. Smith, who is decedent's widow, filed an application for adjustment of claim seeking to obtain the benefits in effect at the time of her husband's death on June 3, 1980, rather than those in effect at the time of decedent's original injury on October 29, 1971. An arbitrator found that A.O. Smith Corp. had complied with the law in effect at the time of the injury and, therefore, denied petitioner's claim. The Industrial Commission affirmed the arbitrator's decision. The circuit court of Madison County set aside the decisions of the arbitrator and the Industrial Commission and found that the law governing benefits at the time of the death of petitioner's husband should apply. A.O. Smith Corp. has perfected the instant appeal to this court.
The following facts are undisputed: At the time of his injury Raymond Smith was 44 years of age, was married and had three children under 18 years of age. At the time of Mr. Smith's death he was survived by his widow and one child under the age of 18. The earnings of Mr. Smith during the year prior to his injury were $15,600, and his average weekly wage was $300. Survivor's benefits due on October 29, 1971, the time of the original injury, amounted to $34,034, and A.O. Smith Corp. has made payments in excess of this amount.
The arbitrator ruled that since A.O. Smith Corp. had complied with the law in effect on October 29, 1971, the time of Mr. Smith's injury, no further payments were due and owing. The Industrial Commission affirmed the decision of the arbitrator and held that the amount of the benefits due to petitioner should be determined by the law in effect at the time of the injury. The circuit court set aside the decision of the Industrial Commission and found that the law in effect on June 3, 1980, the time of Mr. Smith's death, governed as to the amount of benefits due.
Thus, the sole issue before this court is whether the benefits due dependents under the Workers' Compensation Act are governed by the law in effect at the time of an employee's original injury or at the time of an employee's resulting death.
This issue has been considered by the courts> of various States. Many jurisdictions hold that the rights of an employee's dependents are governed by the law in force at the time of the employee's death. (E.g., Booker v. Duke Medical Center (1979), 297 N.C. 458, 256 S.E.2d 189; Sizemore v. State Workmen's Compensation Commissioner (W. Va. 1975), 219 S.E.2d 912; McAllister v. Board of Education (1964), 42 N.J. 56, 198 A.2d 765; State ex rel. Jones & Laughlin Steel Corp. v. Dickerson (1953), 160 Ohio St. 223, 115 N.E.2d 833; Peterson v. Federal Mining & Smelting Co. (1946), 67 Idaho 111, 170 P.2d 611.) The rationale for these decisions is that the workmen's compensation statute confers upon an employee's dependents a new and independent right to compensation. (See 81 Am.Jur.2d Workmen's Compensation sec. 89 (1976); 99 C.J.S. Workmen's Compensation sec. 21(c), at 138 n. 34 (1958).) Other jurisdictions, however, have held that the statutory provisions in effect at the time of the original injury control a dependent's rights. (E.g., Iverson v. Argonaut Insurance Co. (1982), ___ Mont. ___, 645 P.2d 1366; Horton v. Fleming Co. (1979), 3 Kan. App. 2d 121, 590 P.2d 594; Collier v. Hope Coal Co. (Ky. 1954), 269 S.W.2d 278; Beausoleil's Case (1947), 321 Mass. 344, 73 N.E.2d 461; Riggs v. Lehigh Portland Cement Co. (1921), 76 Ind. App. 308, 131 N.E. 231.) These latter decisions appear to be based upon the theory that the workmen's compensation act does not create new rights of action in the dependents of a deceased employee but rather that the right of the employee merely survives for the dependent's benefit. See Annot., 82 A.L.R. 1244 (1933).
• 1, 2 Illinois courts> have recognized that a dependent's claim for benefits under the Workers' Compensation Act is not derivative but instead constitutes an independent cause of action. (General American Life Insurance Co. v. Industrial Com. (1983), 97 Ill.2d 359, 365, 454 N.E.2d 643, 646; Burke v. Industrial Com. (1938), 368 Ill. 554, 556, 15 N.E.2d 305, 307-08; American Steel Foundries v. Industrial Com. (1935), 361 Ill. 582, 589, 198 N.E. 687, 690.) Given this premise, it necessarily follows that the law in effect at the time of the employee's death would control petitioner's recovery in the case at bar. We conclude, therefore, that since a dependent's right to receive compensation does not arise until the injured employee's death, the amount of such benefits is determined by the law in effect at that time. In the instant case the amount of death benefits due petitioner is to be determined by the law in effect on June 3, 1980.
We further conclude that Grigsby v. Industrial Com. (1979), 76 Ill.2d 528, 394 N.E.2d 1173, and Stanswsky v. Industrial Com. (1931), 344 Ill. 436, 176 N.E. 98, relied upon by respondent A.O. Smith Corp., are inapposite. Grigsby involved a claim by an injured employee for benefits which included an increase in benefits enacted by the legislature subsequent to his injury but before the decision of the Industrial Commission. Stanswsky also was not a derivative claim. Instead, it involved a claim filed by an employee's widow for that portion of the employee's workers' compensation award that remained unpaid on the date of the employee's death, his death having resulted from causes which were not related to the injury for which compensation was being paid. We find both of these cases to be inapplicable to the instant case.
For the foregoing reasons, the judgment of the circuit court of Madison County is affirmed.
SEIDENFELD, P.J., and BARRY and McNAMARA, JJ., concur.
JUSTICE WEBBER, dissenting:
While I am appreciative of the logical precision of the syllogism constructed by the majority, I feel constrained to depart from its conclusion for the reason that it ignores an essential element in a dependent's cause of action. While it is true that such a cause of action is independent and not derivative, nevertheless an integral condition of that cause of action is the existence of an injury to the worker resulting in his death. This is found in the statute itself, which states, "The amount of compensation which shall be paid for an accidental injury to the employee resulting in death is:" (Ill. Rev. Stat. 1983, ch. 48, par. 138.7). Thus, while the cause of action is ...