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Dunn v. Industrial Commission11/29/1991
Petitioners appeal from the administrative law judge's award dismissing their claim for lack of jurisdiction. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
Decedent James Dunn sustained an industrial injury to his right leg in 1975 and successfully claimed for workers' compensation benefits. At the time of the injury, Dunn was married to Marilyn Bracker Dunn. Dunn and Marilyn Dunn divorced in 1978. Dunn later married Rose Marie Bruner Garber Dunn and they had one child. Rose Dunn has two children from a previous marriage who were partially dependent upon Dunn for their support. James Dunn died in September 1989, allegedly as a complication from the industrial injury; however, the parties have stipulated that medical causation is not at issue at this time. Rose Dunn and her children filed a death benefit claim in August 1990 which was denied. A formal hearing was held, at which the administrative law judge (ALJ) dismissed the case for lack of jurisdiction because none of the petitioners was a statutory dependent at the time of James Dunn's 1975 injury.
ISSUES ON APPEAL
The sole issue on appeal is whether dependency is to be determined as of the date of injury or the date of death.
DATE OF INJURY REQUIREMENT
A. Spouse's Claim.
Rose argues that the ALJ's interpretation of the dependency statute was in error. The ALJ ruled that Rose was precluded from entitlements guaranteed by the provisions of the death benefits statute because she and James were not married at the time of his injury. The death benefits statute provides in part that " n the case of an injury causing death, the compensation therefor shall be known as a death benefit, and shall be payable . . . o the widow or widower . . . ." A.R.S. § 23-1046(A)(3). The dependency statute, A.R.S. § 23-1064, specifies those takers who are conclusively presumed dependent for purposes of eligibility and those for whom dependency must be established.
Rose argues that these two statutes should not be read in conjunction despite clear case law to the contrary. In Magma Copper Co. v. Naglich, 60 Ariz. 43, 131 P.2d 357 (1942), our supreme court held that a survivor must be dependent upon the deceased employee to qualify for death benefits. We are therefore prohibited from reading the death benefits statute in isolation and must conclude that the two provisions are in pari materia. Kasprowiz v. Industrial Commission, 14 Ariz. App. 75, 480 P.2d 992 (1971). Although Rose raises the issue anew, there is no "question that [the two provisions] must be construed together," Tipton v. Industrial Commission, 2 Ariz. App. 339, 340, 409 P.2d 55, 56 (1965), and that Rose may not claim an entitlement based on the death benefits statute alone.
Alternatively, Rose suggests that even if these provisions must be interpreted together, the ALJ still erred in requiring that she and James be married at the time of injury. A.R.S. § 23-1064(A)(1) states that a wife is conclusively presumed dependent "upon a husband whom she has not voluntarily abandoned at the time of the injury." In Rose's view, a wife could be conclusively presumed dependent if she had either married and not abandoned her husband at the time of injury or was not yet married at the time of injury. Therefore, under this argument, Rose would be conclusively presumed dependent.
Division One of this court has stated that "a reading of this
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