Appeal from the Appellate Court for the Fifth District; heard
in that court on appeal from the Circuit Court of Madison County,
the Hon. Clayton R. Williams, Judge, presiding.
JUSTICE GOLDENHERSH DELIVERED THE OPINION OF THE COURT:
Rehearing denied December 2, 1985.
Based on the stipulation of the parties, an arbitrator for the Industrial Commission found that on October 29, 1971, while employed by respondent, A.O. Smith Corporation, Raymond Smith sustained accidental injuries arising out of and in the course of his employment. He became comatose and, without having regained consciousness, died on June 3, 1980. He left surviving his widow, petitioner, Peggy J. Smith, and one child under 18 years of age. The arbitrator found that respondent, prior to the decedent's death, had paid him compensation in excess of the survivors' benefits which would have been payable under the statute in force and effect on the date of his injury, and denied petitioner's claim. On review, the Industrial Commission awarded petitioner funeral expenses of $750 (Ill. Rev. Stat. 1971, ch. 48, par. 138.7), and otherwise affirmed the decision of the arbitrator. On certiorari, holding that the statute in effect at the time of decedent's death should apply, the circuit court of Madison County set aside the decision of the Industrial Commission and remanded the cause to the Commission for further proceedings.
Pursuant to Rule 302(a) (87 Ill.2d R. 302(a)), respondent appealed directly to this court. Following the adoption of Rule 22(g) (94 Ill.2d R. 22(g)) and the amendment of Rule 302(a) (94 Ill.2d R. 302(a)), the cause was transferred to the Industrial Commission division of the appellate court. The appellate court affirmed (128 Ill. App.3d 343) the judgment of the circuit court and supplied the required statement that the case presented a substantial question which warranted consideration by this court. We allowed respondent's petition for leave to appeal (94 Ill.2d R. 315(a)).
Prior to discussing the merits of the appeal we raise, sua sponte, the question whether the judgment of the circuit court is a final, appealable order. It provides:
"The decisions of the arbitrator and the Industrial Commission are reversed and the cause remanded for further proceedings."
This court has held that an order reversing an award and remanding to the Industrial Commission is interlocutory and not appealable. (Mid-American Lines, Inc. v. Industrial Com. (1980), 82 Ill.2d 47; Stockton v. Industrial Com. (1977), 69 Ill.2d 120.) Ordinarily we would dismiss the appeal on the ground that the order is not final and appealable, but in this instance we elect not to do so. The parties have stipulated to the facts, including the amount of the decedent's earnings and the weekly benefits payable if the statute at the time of death is applicable. The calculation of the amount of the award upon affirmance is a simple mathematical process, and under the circumstances we elect not to dismiss the appeal.
Citing Grigsby v. Industrial Com. (1979), 76 Ill.2d 528, and Stanswsky v. Industrial Com. (1931), 344 Ill. 436, respondent contends that the amount of compensation due petitioner is determined by the statute in effect on the date of decedent's injury (1971), rather than the date of his death (1980). The difference is substantial. Respondent argues that the amendment increasing the rate of worker's compensation is substantive in character and applies only prospectively, and that it is not procedural or remedial and does not apply retroactively. It contends further that the General Assembly did not intend to distinguish between fatal and nonfatal injuries and that the date of the injury, rather than the date of death, controls in all cases.
Citing American Steel Foundries v. Industrial Com. (1935), 361 Ill. 582, Burke v. Industrial Com. (1938), 368 Ill. 554, and General American Life Insurance Com. v. Industrial Com. (1983), 97 Ill.2d 359, petitioner argues that a dependent's cause of action is independent and not derivative of the employee and does not accrue until the date of the employee's death. She argues that the cases upon which respondent relies, Grigsby and Stanswsky, are distinguishable. She asserts that it is clear from those opinions that the date of the accident determines dependents' survival rights (Ill. Rev. Stat. 1979, ch. 48, par. 138.8) only when the employee's death resulted from causes not connected with the injury.
Although until now this precise issue had not been considered by a reviewing court in this jurisdiction, as noted by the appellate court it has been decided in other jurisdictions. The appellate court said:
"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. [Citations.] 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. [Citations.] Other jurisdictions, however, have held that the statutory provisions in effect at the time of the original injury control a dependent's rights. [Citations.] 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. [Citation.]" 128 Ill. App.3d 343, 344-45.
In American Steel Foundries v. Industrial Com. (1935), 361 Ill. 582, the court recognized the distinction between a cause of action created in favor of the employee for injuries suffered but not resulting in death, and a cause of action created in favor of his dependents for his injuries resulting in death. The former creates a cause of action which is personal to him, whereas the latter creates a cause of action in favor of his dependents which is personal to the dependents and does not come into existence until his death from such injuries. After drawing this distinction, the court held:
"The claim for compensation on behalf of the dependents is not derivative of the employee but is an independent right of recovery for compensation created by the statute for the exclusive benefit of the dependents and over which the employee has no control and which he is powerless to release, waive or extinguish." 361 Ill. 582, 589.)
The court held that the survivors' claim was not barred by the decedent's having executed a lump-sum-settlement ...