78 Ind. App. 301 | Ind. Ct. App. | 1922
— On September 7, 1921, the full Industrial Board made a finding which establishes the following facts: On November 8, 1920, one William H. Joyner, while in the employment of the state highway commission, received an injury by accident which resulted in his almost instant death. The deceased workman’s average weekly wage was $21. He left surviving as his sole dependents, his wife, Leona Joyner; his daughter, Anna Marie Joyner, one year of age; and William H. Joyner, Junior, a posthumous child who was born April 21, 1921, and died June 21, 1921.
The board awarded compensation for the widow at the rate of $3.85 per week, beginning on November 8, 1920; for the daughter at the rate of $3.85 per week, beginning November 8, 1920; and for the deceased posthumous child at the rate of $3.85 per week, beginning April 21, 1921, and to continue to and including June 21, 1921.
The appellants filed a motion to modify the award so as to give compensation for Leona at the rate of $3.85 per week from November 8, 1920, to June 21, 1921, and thereafter at the rate of $5,775 per week; for Anna Marie at the rate of $3.85 per week from November 8, 1920, to June 21, 1921, and thereafter at the rate of $5,775 per week; and for the posthumous child at the rate of $3.85 per week from November 8, 1920, to June 21, 1921. The motion was overruled.
The legislature has declared that the term “child” as used in §38 of the Workmen’s Compensation Law,
As applicable to this case, the statute provides that “a weekly compensation equal to fifty-five per cent, of the deceased’s average weekly wages,” for 300 weeks, shall be paid in equal shares “to all dependents of the employee wholly dependent upon him for support at the time of his death.” §37 Workmen’s Compensation Act, Acts 1919 p. 158, §8020ul Burns’ Supp. 1921. The stat-' ute also provides that, “If the employee leaves dependents only partially dependent upon his earnings for support „at the time of his injury, the weekly compensation to those so dependent shall be in the same proportion to the weekly compensation of persons wholly
The legislature has provided that the amount of the death benefit shall depend uniformly on the workman’s average weekly wage, thereby indicating that it is a substitute for the support he was capable of providing for his dependents, regardless of the number of them. If' the legislature had intended that the amount of the death benefit should depend on the number of dependents, we are bound to presume that the law-makers would have made at least an attempt to express that intention. Such an intention has not been expressed; and the language of the statute leaves- no room for even a feeble inference to that effect. In the case at bar the class designated to receive the death benefit consists of those who were “wholly dependent” at the time of the workman’s death. The evident legislative intent is that the full amount of the death benefit shall be paid to the end of the maximum compensation period, if anyone of that class remains alive, unless the dependency of all the members of the class be sooner terminated in the manner provided by the statute. §38, Acts 1919 p. 158, supra.
Nothing in this opinion is to be taken as prescribing a form of award to be followed in this, and like cases. The matter of form is left to the board. The regularity
The board is directed to modify the award in accordance with this opinion, and when so modified the award is affirmed.