Opinion
33044, 33045.
DECIDED MAY 19, 1950.
Appeal; from Coffee Superior Court — Judge Thomas. January 24, 1950.
R. A. Moore, for plaintiff.
Neely, Marshall Greene, W. Neal Baird, for defendants.
1. The time limit for the filing of a claim for workmen's compensation does not run against a minor who has no trustee or qualified guardian of his property.
2. The evidence authorized a finding of partial dependency of the minor brother and sister of the deceased employee.
3. The court did not err in reversing the amount awarded by the board. The amount decreed by the court was the correct amount for partial dependents under the formula stated in Code § 114-413(c).
4. There is no provision for the unused portion of an award made to a partial dependent to be awarded to another partial dependent in case one partial dependent dies or ceases to be a dependent.
DECIDED MAY 19, 1950.
The State Board of Workmen's Compensation granted compensation to Bessie and Richard McDonald, minors under 18 years of age, on an application filed by their mother more than 12 months after the death of the brother of the claimants, on account of which death the compensation was awarded to them as partial dependents. The claim of the mother was denied because filed more than a year from the death of her son, the employee, and there was no exception to the judgment. The hearing director found that the employee's average weekly wage was $68.38; that he contributed $150 per month to his mother and dependent minor sister and brother, and awarded each minor dependent the sum of $4.90 per week not to exceed 300 weeks, or until they reached the age of eighteen years, and provided in the award that since the dependent sister would reach the age of 18 years prior to the expiration of 300 weeks, the full amount of $9.80 per week should be paid to the dependent brother from the time the sister reached 18 till the expiration of the 300 weeks. On appeal by the employer and carrier the superior court affirmed the board's findings as to the dependency and amounts of contribution but reversed the award on the ground that each dependent was entitled to only $2.87 per week and only until each attained his 18th birthday, and the case was remanded to the board with instructions that an award be entered in accordance with his judgment; that a guardian for the property of Bessie McDonald and Richard McDonald be appointed and a certified copy of his appointment and qualification be sent to the board, and that a certified copy of Bessie McDonald's birth certificate, if one is in existence, be furnished the board. The case was appealed on behalf of the minor dependents and the employer and the carrier filed a cross-bill of exceptions.
1. Code § 114-306 provides that the time limit for filing a claim shall not run against a minor dependent as long as he has no guardian or trustee. Since it does not appear from the evidence that the two minor dependents had a legally qualified guardian of their property, the board properly ruled that the claim was not barred by the statute. See Code, § 114-420.
2. There is no merit in the contention of the employer and carrier to the effect that the minor brother and sister were not dependent because there was no substantial contribution to them except through the mother.
3. The court did not err in reversing the amount of the award to each minor dependent. Code § 114-413(c) fixes the formula for partial dependents: "If the employee leaves dependents only partially dependent on his earnings for their support at the time of his injury, the weekly compensation for those dependent shall be in the same proportion to the compensation for persons wholly dependent as the average amount contributed weekly by the deceased to the partial dependents bears to his average weekly wages at the time of his injury."
4. The court did not err in overruling the provision in the award that the amount of the minor sister's compensation should be paid to the brother on her becoming 18 years of age. There is no provision in Code § 114-414 for the payment of unpaid compensation awarded to partial dependents to be paid to other partial dependents. The only such provision is that "where there are both total and partial dependents and the total dependents die, remarry or cease to be dependents, the partial dependents shall be entitled to the balance of compensation, if any." This court cannot read into an unambiguous statute something that simply is not there however strongly we might feel that it should have been included.
The judgment of the superior court is affirmed.
Judgment affirmed on the main and the cross-bills of exceptions. Sutton, C.J., and Worrill, J., concur.