Opinion
37291.
DECIDED SEPTEMBER 24, 1958.
Workmen's compensation. Seminole Superior Court. Before Judge Geer. May 16, 1958.
Eugene Cook, Attorney-General, E. Freeman Leverett, Assistant Attorney-General, for plaintiff in error.
Where in a workmen's compensation case there is an award to a dependent spouse and dependent children of a deceased employee, if the spouse remarries, the full amount of the award which is then unpaid, must be paid to the children.
DECIDED SEPTEMBER 24, 1958.
This writ of error brings to the court an appeal by the Georgia Forestry Commission, the employer, from a final judgment of Seminole Superior Court affirming an award by the State Workmen's Compensation Board which refused to grant application of the Forestry Commission for modification and reduction of a death benefit award previously granted to the defendant in error.
The decedent, Matthew W. Page, was for several years employed by the Georgia Forestry Commission, a department of the State Government (Code Ch. 43-2) as a County Forestry Ranger. On September 13, 1954, while engaged in his duties for the commission, he fell from a pine tree which he had climbed to gather pine cones, and broke his neck, resulting in immediate death. As there was no doubt as to liability, the Forestry Commission executed "Memorandum of agreement as to payment of compensation and death benefits" on Form 24 of the State Board of Workmen's Compensation. On October 5, 1954, the board approved this agreement and provided for payment of weekly compensation at the rate of $20.40 per week, beginning September 13, 1954, and continuing for 300 weeks. Payments to be made to Mrs. Mildred Gill Page, widow, for the use and benefit of herself and minor children, Virgil Page, Richard Page, and Virginia Page.
Subsequently, on July 21, 1956, Mrs. Page remarried, and on November 12, 1957, the Georgia Forestry Commission requested a hearing before the board for the purpose of seeking modification of the agreement and award, based on Mrs. Page's (now Mrs. Harrell) remarriage. The commission contended, that upon Mrs. Page's remarriage, the award should be reduced one-fourth, there having originally been four total dependents, of whom Mrs. Page is no longer a dependent within the meaning of Code § 114-414, defining dependency.
At the hearing held before the director, it was established without dispute that Mrs. Page had remarried. The director so found as a matter of fact.
The director denied the relief requested by the commission in an award which held that, while Mrs. Page could not continue to receive any compensation for herself, she could receive the full amount of compensation originally awarded for the use of the minor children.
Direct appeal to the superior court was made by the commission and on May 16, 1958, the superior court entered final judgment affirming the award of the board and denying the appeal.
Code (Ann.) § 114-113 prescribes the amount of compensation to the dependents of an employee whose death is caused by an accident arising out of and in the course of his employment.
Code § 114-414 provides that the compensation be paid to those primarily dependent upon the deceased employee, that is the surviving dependent spouse and children. It directs that the amount awarded as compensation be paid to the surviving spouse for the benefit of his or her use and that of the children. The money payable as compensation thus becomes like money set aside as a year's support, a sort of trust fund to be held and used by the spouse for the benefit of the beneficiaries to whom it belongs. The Code section further provides that with remarriage the dependency of the spouse terminates.
The obligation of the employer or insurance carrier to pay the compensation awarded jointly to the spouse and children is not diminished simply because one of their members is no longer entitled to participate in its use. See in this connection for a similar conclusion, 58 Am. Jur. 892, § 506, where the text is found: "The loss of the right to compensation by an alien dependent of a deceased workman, as the result of having left the country, has been held to constitute a `change of conditions,' within the meaning of a provision authorizing a modification of an award upon a change of conditions, so as to permit an increase in the amount of the award to other dependents."
That the conclusion expressed is correct is supported and illustrated by the facts that a minor claimant under the age of 18 years may recover the full amount of compensation payable because of the death of his father or mother, though the surviving spouse has allowed his or her right to recover compensation to become barred by the statute of limitations. Code § 114-306.
Where the death of the employee is compensable the law fixes the amount to be paid the dependents described by Code § 114-414. The number of dependents who participate in the use of the fund is of no concern to the employer or insurance carrier; their only interest is to see that the amount of the award is paid to those entitled to receive the same.
Judgment affirmed. Nichols, J., concurs. Felton, C. J., concurs in the judgment.