Trail Mountain Coal Co. v. Kenner , 737 P.2d 992 ( 1987 )

HOWE, Justice:

Trail Mountain Coal Co. and its workmen’s compensation insurance carrier, the State Insurance Fund, seek review of an order of the Industrial Commission of Utah awarding benefits to the children of a deceased workman.

Richard Kenner was an employee of the Trail Mountain Coal Co. when he was killed in a cave-in at a coal mine on February 3, 1982. He was survived by his widow, Dee Anna Kenner, and two minor children, Adam Leon Kenner and Dawn Marie Ken-ner. Pursuant to Utah Code Ann. § 35-1-68 (Supp.1986), the Industrial Commission awarded to Mrs. Kenner, for the use and benefit of herself and her two minor children, compensation of $218 per week for the statutory maximum of 312 weeks, for a total of $68,016. On September 7, 1982, Mrs. Kenner remarried, and at that time, the Commission amended its award to give her a lump sum payment equal to 52 weeks of compensation pursuant to Utah Code Ann. § 35-1-73 (Supp.1986). The remaining balance of the original award was divided equally between the two minor children, payable to them in the sum of $401.98 each every four weeks. Those amounts were ordered to be deposited in savings accounts in the names of the children “until needed or until they attain their respective majorities.”

On January 18,1985, Adam Leon Kenner turned eighteen years old. A few days thereafter, an administrative law judge in the Industrial Commission entered an order releasing the funds in his savings account to him, but did not terminate payment of future benefits to him. Thereupon, the State Insurance Fund filed a motion for a review of the order, seeking termination of the payment of benefits to Adam and requesting a recalculation of benefits to Dawn Marie Kenner in light of Adam’s attaining majority. In response to that motion, the judge, apparently recognizing the error of awarding benefits to Adam beyond age eighteen, terminated them. However, the judge retroactively increased Adam’s award to $202.48 per week from September 7, 1982 (the date of his mother’s remarriage), through January 17, 1985. The judge also retroactively increased payments to Dawn Marie Kenner to $122.85 per week from September 7,1982, until the date of her eighteenth birthday, which would be August 1,1986. By virtue of this order, the full $68,016 originally awarded by the Commission would be paid out to Mrs. Kenner and the children by the time Dawn Marie Kenner attained her eighteenth birthday. The Industrial Commission affirmed the order of the administrative law judge, and the employer and the State Insurance Fund now seek our review of that order.

The sole contention of the employer and the Fund is that the Commission, in its order retroactively increasing benefits payable to the two children, ran afoul of section 35-l-68(2)(b)(i), which establishes a weekly maximum of 85 percent of the state average weekly wage at the time of injury, which in this case amounts to $218. Under the order of the Commission, the total amount payable to the two children was $825.33 per week.

Two statutes make it clear that the Commission’s order was in error. First, section 35-1-73 provides that upon remarriage of a widow, an advance of 52 weeks of the award will be paid in a lump sum to her to encourage such remarriage. That statute then continues to provide:

If there are other dependents remaining at the time of remarriage, benefits payable under this title shall be paid to such person as the commission may determine for the use and benefit of the other dependents, the weekly benefits to be paid at intervals of not less than four weeks.

(Emphasis added.) The emphasized language in the above statute, “benefits payable under this title,” unmistakably must' include the cap fixed by section 35-1-68(2)(b)(i) of 85 percent of the state average weekly wage. We cannot ignore that limitation in determining “benefits payable under this title.”

The second statute which must be considered is Utah Code Ann. § 35-1-74 (Supp. 1986), providing:

In all cases where an award is made to, or increased because of a dependent spouse or dependent minor child or children, as provided in this title, such award or increase in amount of the award shall cease at the death, marriage, attainment of the age of eighteen years, or termination of dependency of such minor child or children or upon the death, divorce or remarriage of the spouse of the employee, subject to those provisions relative to the remarriage of a spouse as provided in section 35-1-73.

It is clear that under the foregoing statute, an award to a child ceases upon the attainment of his or her eighteenth birthday. We cannot sanction the avoidance of that termination by allowing the Commission to pay more than the weekly maximum by compressing the full remaining balance of the original award into the remaining weeks before the children’s eighteenth birthdays.

It appears that the Commission erroneously viewed the award of $68,016 as a vested entitlement. We interpret the original award to be the maximum amount which could be payable to the Kenner family. The amount was based on two statutory máximums, to wit, $218 for 312 weeks. However, in order for this maximum amount to be collected, at least one of the dependents had to remain dependent throughout the full 312 weeks. That may not occur since Mrs. Kenner has remarried and both children have attained or will attain the age of eighteen years after 286 weeks and presumably will then no longer be dependent. Under section 35-1-74, the original award, although not exhausted, ceases.

The net effect of the Commission’s decision is to allow the two Kenner children to •collect compensation for support beyond their eighteenth birthdays without any showing of dependency. We can find no support in the statutes for that result.

The order of the Commission is reversed, and the case is remanded to the Commission to decrease the weekly benefits to $218 per week and to allow the children, if they so request, the opportunity to prove their dependency beyond their eighteenth birthdays up to but not exceeding the 312 weeks.

HALL, C.J., concurs.