Kisco, Inc. v. Industrial Com'n of Ariz.
| Decision Date | 04 November 1997 |
| Docket Number | CA-IC,No. 2,2 |
| Citation | 949 P.2d 49,190 Ariz. 389 |
| Parties | 255 Ariz. Adv. Rep. 43 KISCO, INC., Petitioner Employer, State Compensation Fund, Petitioner Carrier, v. The INDUSTRIAL COMMISSION OF ARIZONA, Respondent, Aleda Dunn, Widow, Walter Dunn, Deceased, Respondent Employee. 97-0040. |
| Court | Arizona Court of Appeals |
James F. Crane, Chief Counsel, State Compensation Fund by Lawrence J. Sandell, Tucson, for Petitioner Employer and Petitioner Carrier.
Anita R. Valainis, Chief Counsel, The Industrial Commission of Arizona, Phoenix, for Respondent.
Rabinovitz & Associates, P.C. by Bernard I. Rabinovitz, Tucson, for Respondent Employee.
The sole issue presented in this statutory special action is whether the amount of burial expenses provided by A.R.S. § 23-1046 A(1) is determined by the date of death, or by the date of injury if different than the date of death.
Walter Dunn suffered a job-related heart attack on January 6, 1970, which led to his death on August 12, 1996. That his death was job-related is undisputed. The only dispute is the amount of burial expenses to which his widow, Aleda, is entitled under the workers' compensation statute. Petitioners, Walter's employer and the State Compensation Fund, argue that Aleda should receive the amount available in 1970 when Walter suffered the heart attack, and amount not to exceed $300. Aleda claimed, and the administrative law judge (ALJ) agreed, the she should receive the amount available under the statute at the time of Walter's death, an amount not to exceed $3,000. We find the ALJ's award was correct.
We independently determine conclusions of law reached by the ALJ. Anton v. Industrial Comm'n, 141 Ariz. 566, 688 P.2d 192, (App.1984). Because the parties stipulated to the facts, we need not review the record to ascertain whether it supports the ALJ's factual conclusions.
Petitioners urge us to follow State Compensation Fund v. Stanke, 22 Ariz.App. 74, 523 P.2d 801 (1974). In that case the employee was injured on the job in 1958, resulting in his death in 1971. The court held that death benefits payable to the employee's surviving spouse for burial expenses pursuant to A.R.S. § 23-1046 A(1) were fixed by the statute in effect at the time of injury, rather than at the time of his death. The Stanke court relied on several cases, including Magma Copper Co. v. Naglich, 60 Ariz. 43, 131 P.2d 357 (1942), in which the court held that determination of which persons are eligible to receive benefits based on the time of injury, not the time of death. The court reasoned that not only the identity of the beneficiaries but benefits are fixed at that time.
In 1994, our supreme court revisited this question in Dunn v. Industrial Comm'n, 177 Ariz. 190, 866 P.2d 858 (1994), overruling Magma and its progeny. The court stated that "where injury causes death, death is the ultimate injury," id. at 194, 866 P.2d at 862, deciding that those who are entitled to benefits are determined as of the date of death, not the date of the death-producing injury. Id. See also, Rico v. Industrial Comm'n, 177 Ariz. 197, 866 P.2d 865 (1994).
Petitioners argue that since Dunn and Rico deal only with fixing the identity of beneficiaries as of a date certain, Stanke, which deals with determining benefits as of a date certain, is still valid precedent and we should follow it. What petitioners overlook is that Stanke's holding relied on Magma, which Dunn overruled. The court in Dunn said, "[we] ... do not take our decision to overrule Magma and its progeny lightly." 177 Ariz. at 196, 866 P.2d at 864. The court also said, "[a]ll dependency determinations ... are fixed at the time of death ... [t]o the extent...
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ASARCO INC. v. INDUSTRIAL COM'N OF ARIZONA, 1 CA-IC 01-0108.
...notice"). Although the amount of benefits are fixed by the statute in effect at the time of death, Kisco, Inc. v. Industrial Commission, 190 Ariz. 389, 390, 949 P.2d 49, 50 (App.1997), the Fund neglected to calculate them as mandated by the controlling statute on the date of Duke's death. A......
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Asarco Inc. v. the Indus. Comm'n of Ariz.
...Although the amount ofPage 3benefits are fixed by the statute in effect at the time of death, Kisco, Inc. v. Industrial Commission, 190 Ariz. 389, 390, 949 P.2d 49, 50 (App. 1997), the Fund neglected to calculate them as mandated by the controlling statute on the date of Duke's death. Arizo......