Rosell v. State Ind. Acc. Com. , 164 Or. 173 ( 1940 )

I concur with the other members of the court in holding that plaintiff's claim for compensation for the death of her husband was not filed within the time prescribed by the statute. The court being in accord upon that question, it would seem that no further interpretation of the statute would be necessary.

To hold, as the majority opinion seems to do, that when a workman sustained an injury on August 7, 1930, and did not die until February 17, 1936, which was five years, six months and 10 days thereafter, it was a fatal injury within the meaning of the workmen's compensation act, or that a woman who was not then his wife is entitled to compensation from the workmen's compensation fund at the rate of $30 per month for the remainder of her life, or until her re-marriage, does not seem to me to be a proper interpretation to be given to the statute, particularly so in view of the fact, as was the case here, where the injured workman, before his death, was paid full compensation for the injury which he had sustained.

Again, I can see no reason for holding that the rule that dependency under the statute is determined as of the date of the fatal accident should not be applied to a woman who married the injured workman after he had sustained a fatal injury. That dependency is determined as of the date of the fatal injury is settled by Casaday v. State Industrial AccidentCommission, 116 Or. 656, 242 P. 598, and Paul v. StateIndustrial Accident Commission, 127 Or. 599, 272 P. 267.

Again, it does not seem logical to hold that this plaintiff, if entitled to recover compensation for the death of her husband — a right which could not accrue until after his death — should be required to file her claim for compensation within one year after the injury happened, where, as in this case, he did not die until long after that period had expired.

For these reasons, I concur in the result but not in the reasoning upon which the decision is based.