Opinion
No. 1068A180.
Filed September 29, 1969. No petitions for rehearing or transfer filed.
INDUSTRIAL BOARD — Finding — Appeal — Remand. — Where the Appellate Court finds in an appeal from the Industrial Board that appellants are dependents as a matter of law and remands the case to the Board for an award not inconsistent with the court's finding, the Board has only the right to make a finding of fact on the evidence with reference to the degree of dependency.
From the Full Industrial Board.
Appellant seeks further consideration of the court's earlier findings in an action remanded to the Industrial Board. Error is assigned in the Board's determination of appellant's dependency.
Remanded. By the First Division.
Lawrence Booram, of Anderson, for appellant.
Theodore L. Locke, Jr., Locke, Reynolds, Boyd Weisell, of Indianapolis, for appellee.
This cause is returned to us for further consideration of the findings of the Full Industrial Board which purports to be in compliance with our opinion dated December 13th, 1967, wherein said cause was remanded to said Board.
In the opinion wherein we ordered the remand which is reported in 142 Ind. App. 60, 231 N.E.2d 864, at page 867, we said:
"Disregarding this immaterial evidence, there is uncontradicted testimony of two witnesses that the two children were dependent on the decedent. In the case King v. Illinois Steel Corp., supra, we held that where the facts are uncontradicted the determination of dependency is a matter of law."
By direct reference to the case of King v. Illinois Steel Corp. (1931), 92 Ind. App. 456, 176 N.E. 161, we feel that the only possible construction of the above paragraph is that our opinion held that the appellants, Dwight McDade and Duane Louis McDade were dependents as a matter of law.
Our opinion and order did not authorize the Board to make a determination of dependency as a matter of law but, only the right to make a finding of fact on the evidence with reference to the degree of dependency as either full or partial dependents, and to enter an award based upon such finding not inconsistent with our opinion.
This cause is again remanded to the Industrial Board to make a finding of fact as to the degree of dependency and to enter an award upon such finding.
Lowdermilk, P.J., Cooper and Sullivan, JJ., concur.
NOTE. — Reported in 251 N.E.2d 51.