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Dunn v. Industrial Commission11/29/1991
statute readily reveals that the crucial time for the conclusive presumption to be effective is at the time of injury." Coover v. Industrial Commission, 14 Ariz. App. 409, 411, 484 P.2d 21, 23 (1971). This is because beneficiaries do not take "as a matter of law resulting from their relationship as natural children or widows, but from their condition as dependents in whole or in part upon the deceased parent or husband." Ocean Accident and Guarantee v. Industrial Commission, 32 Ariz. 54, 62, 255 P. 598, 600 (1927). The inquiry, therefore, is whether the claimant was married to the deceased worker at the time of the injury . If the current spouse was not married to the employee at the time the injury occurred, ipso facto there can be no compensable claim. See Ezell v. Industrial Commission, 23 Ariz. App. 448, 450, 533 P.2d 1185, 1187 (1975) ("A widow, who was not the wife of the employee at the time of his injury , is not entitled to death benefits.").
Rose also contends that the date of injury requirement applies only to those cases under § 23-1064(B) where there is a question of actual dependency and not to cases of conclusive dependency under § 23-1064(A). Again, the conclusive presumption is reserved for those potential beneficiaries who were dependents at the time of the injury . Tipton, supra. Rose is clearly outside the category to whom the presumption applies.
Rose maintains that the courts have ignored legislative efforts to revise these provisions so as to prevent the results obtained here. Our legislature has revisited the statutes in question on at least three occasions, most recently in 1990, yet the judicially-imposed dependency requirement has remained unchanged. We assume the legislature is aware of judicial interpretations. State v. Superior Court, 104 Ariz. 440, 454 P.2d 982 (1969). Furthermore, even though the statute has undergone revision, the cases interpreting it have relied upon provisions which are identical to our modern laws. Tipton, 2 Ariz. App. at 340, 409 P.2d at 56. This court is not at liberty to overturn supreme court precedent.
B. The Children's Claims.
Neither James's natural child nor his two stepchildren are entitled to collect death benefits because they were neither
born nor dependent upon James at the time of the injury . As with an after-married's claim, children born after the injury are ineligible for death benefits. The decisive date is the date of injury. This remains true even when a child is otherwise within the class of those conclusively presumed dependent. Ezell, supra (child conceived after father's injury did not take even though dependent). In such a case, the language of A.R.S. § 23-1064(B) controls to fix the taking of benefits at the time of injury . Triste v. Industrial Commission, 25 Ariz. App. 489, 544 P.2d 706 (1976). Therefore, the natural child of James and Rose Dunn is ineligible to receive death benefits.
Stepchildren are treated identically to natural children "once the hearing officer finds as a fact the existence of partial dependency, then the presumption of total dependency becomes applicable . . . the stepchild must then be regarded in all respects as though the relationship was that of a natural child." Diesel Drivers v. Industrial Commission, 122 Ariz. 184, 190, 593 P.2d 934, 940 (
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