Opinion
November 16, 1961
Present — Bergan, P.J., Gibson, Herlihy, Reynolds and Taylor, JJ.
Appellants contend an award to the decedent's mother 27 years after his death was barred by section 123 Work. Comp. of the Workmen's Compensation Law. Decedent died in 1933, leaving a widow, two minor children, father, mother (claimant) and a crippled sister. It is not disputed that a claim for dependency was filed on behalf of the mother at that time. Subdivision 4 of section 16 limits the amount payable in death cases to 66 2/3% of the decedent's wages and at the first hearing an award of 50% was made on behalf of the widow and her children and the balance of 16 2/3% was made to the decedent's father, there being ample evidence of dependency of the father and his family and also evidence of support by the decedent. Subsequently the widow remarried and at a hearing the children were allotted 15% each and the amount payable to the father was increased 25%. It thereafter came to the attention of the board that the portion of the claim relating to the mother (claimant) and crippled sister had not been adjudicated and the matter was referred to the Referee to determine the validity of their dependency. He found the sister was not a dependent but that the mother was and allowed her the remaining 11 2/3% with further provisions for her determined by the children reaching majority. Section 123 Work. Comp. of the Workmen's Compensation Law has no application to the present facts as the case was never closed. ( Matter of McCulla v. Alco Prods., 5 A.D.2d 898, 899.) In the Matter of Rilitz v. Blumenthal Bros. ( 11 A.D.2d 547) this court recently determined the rights of dependents in a death claim. While the issue there primarily concerned liability under section 25-a, the claim was made on behalf of the widow and her children in 1935 and it was reopened in 1954 to determine the issue as to whether one of the children was permanently and totally disabled at the time of the death of the decedent so as to be entitled to additional benefits. Death benefits constitute only one compensation claim and are in no way governed by the number of dependents entitled to apportionment. Benefits to the claimant here could have been rightly made at the time of the original allocation of funds or could be made or altered at any time during the period that compensation was payable. The fact that the allowance was to the father rather than to both him and his wife is of no significance and in no way controlling. As the board stated: "The awarding of benefits to the mother is a correction since the Board overlooked the claim and made no determination." On this appeal the appellants further argue that the claimant was not a dependent but this issue was not presented to the board and it is not part of the decision appealed from and cannot be properly considered by this court. ( Matter of Veley v. Borden Co., 13 A.D.2d 883; Matter of Braune v. Haas, 13 A.D.2d 875.) Decision and award of the Workmen's Compensation Board unanimously affirmed, with costs.