§ 167. Computation and amount of benefit Under the English Act, and state Acts similar to it in this respect, the compensation payable to dependents is an amount reasonable and proportionate to their injury." The English Workmen's Compensation Act provides that in cases of partial dependency the amount recoverable shall be reasonable "and proportionate to the injury to the said dependents." This language required that the English courts in cases of partial dependency inquire whether deceased was a financial asset and whether his death was a financial injury to the dependent. On the other hand, the Connecticut Act makes the sole test one of dependency upon the earnings of the deceased at the time of the injury and fixes the minimum award in cases where the injury results in death. It follows, therefore, that in determining under the latter Act the extent of dependency upon a minor, it is immaterial whether the cost of the minor's support used up all his wages, where the dependent was legally entitled 93 In England the amount payable to dependents is to be reasonable and proportionate to their injury, and the exact amount is determined for each case. "The sum is to be proportioned to the injury. It is for the Committee to say what is reasonable and proportionate to the injury." Hodgson v. Owners of West Stanley Colliery (1910) 3' B. W. C. C. 267. The purpose of the Compensation Act was to provide a percentage income to the widow, or dependent next of kin, based upon their pecuniary loss. State ex rel. Gaylord Farmer's Co-op. Creamery Ass'n v. District Court, 128 Minn 486, 151 N. W. 182. to receive the wages of the minor and to use them for the support of the family." Under the Massachusetts Act, the sum to be paid is measured by the wages of the deceased workman, not by the injury done to the dependent. Where the dependents were only partly dependent upon the earnings of the deceased, the amount to be paid is "a weekly compensation equal to the same proportion of the weekly payments made for the benefits of persons wholly dependent as the amount contributed by the employé bears to the annual earnings of the deceased at the time of his injury." The amount to be paid in case the dependent was partly dependent is to be measured by that proportion of the average weekly wages of the deceased which the amount of his wages contributed by him to the dependent's support bore to the amount of his annual earnings, without regard to the benefits, if any, received by the deceased from the dependents.° Where an employé receives board from a dependent to whose support he contributed, the value of such board is not to be deducted from his contributions in determining percentage of dependency." 94 Mahoney v. Gamble-Desmond Co., 90 Conn. 255, 96 Atl. 1025. 95 In Koether v. Union Hardware Co., 1 Conn. Comp. Dec., 38, it was held that, where a son contributed practically all of his earnings to a family fund, all of which was required for the support of the family, the board, room, clothing, washing, etc., which he received were not to be deducted in computing the amount of compensation. 95 (Wk. Comp. Act, § 6) Gove v. Royal Indemnity Co., 223 Mass. 187, 111 N. E. 702. Where all of a minor's weekly earnings, amounting to $5.67, were given by him to his father to support his father's family, consisting of a wife and several minor children, including decedent, the father was entitled to $4 per week for 300 weeks from the date of the fatal injury, though he paid the expense of the deceased son's maintenance to the extent of at least $2.50 per week. (St. 1911, c. 751, pt. 2, § 6) In re Murphy, 218 Mass. 278, 105 N. E. 635. 96 Gove v. Royal Indemnity Co., 223 Mass. 187, 111 N. E. 702. The employé contributed the sum of $12.50 weekly to the dependents, $10 in cash to his mother, and $2.50 in groceries, and the sole question at issue was whether the dependents were entitled to the payment of a weekly com No deduction will be made from death benefits for the time during which the employé worked after the injury," or for payments made to him by way of compensation.98 pensation equal to the same proportion of the weekly payments for the benefit of persons wholly dependent as the amount contributed by the employé to the partial dependents bears to the average annual earnings of the deceased, or whether from the amount so contributed the value of his board should be deducted. The Committee held that the value of board should not be deducted in computing the compensation. Hayden v. Mass. Employés' Insur. Ass'n, 2 Mass. Wk. Comp. Cases, 198 (decision of Com. of Arb.). The employé, a minor, contributed all of his wages, amounting to $5.67 a week, to his father. The father was not wholly, but only partially dependent upon the wages of the son for support, and the question is: Is the father entitled to the minimum of $4 a week, or should there be a deduction from the minimum amount, on account of the fact that the employé, while contributing all his wages to his father, was supported by the father, and his maintenance was at least $2.50 a week? The Board decided and held that the employé contributed his entire earnings to the dependent, a proportion of 100 per cent., and that there is due the dependent 100 per cent. of the minimum compensation provided by the statute; that is, the payment of $4 a week for 300 weeks from the date of the injury. Murphy v. American Mut. Liab. Insur. Co., 2 Mass. Wk. Comp. Cases, 817 (decision of Indus. Acc. Bd., affirmed by Sup. Jud. Ct., 218 Mass. 278, 105 N. E. 635). 97 (St. 1911, c. 751, part 2, § 6) In re Cripp, 216 Mass. 586, 104 N. E. 565, Ann. Cas. 1915B, 828. 98 The widow, as sole dependent of a deceased employé, was entitled to compensation from the date of the last payment to the deceased employé for a period not to exceed 300 weeks from the date of the accident, without any deduction being made for payments made to the employé for loss of a finger. (St. 1911, c. 751, pt. 2, § 11 [d], as amended by St. 1912, c. 571, § 2, and St. 1913, c. 696, § 1) In re Nichols, 217 Mass. 3, 104 N. E. 566, Ann. Cas. 1915A, 862. The employé received an injury which necessitated the amputation of the third finger of the right hand. Later blood poisoning set in and death ensued. Under section 11 (d), part II, the employé was entitled to the payment of half his weekly wages for a period of 12 weeks, in addition to the payments due on account of incapacity for work; the amputation of the finger being one of the "specified injuries" for which the specified compensation named should be paid "in addition to all other compensation." Subsequent to the payment of the "additional compensation" the employé died, and the insurer requested the Board to rule as to whether the amount paid as “additional compensation" should not be properly deducted from the compensation due the widow. The Industrial Accident Board ruled that the statute makes The California Act does not require that all payments made by an employé to the support of his dependents shall be paid from his earnings for the period during which such contributions were made. It requires merely that the extent of partial dependency be fixed at such proportion of three times the average annual earnings "as the annual amount devoted by the deceased to the support of the person or persons so partially dependent bears to such average earnings." "" Where a partial dependency is clearly estab 99 lished, but there is no direct evidence to show the amount of contributions made, such partial dependency may be computed by reference to the earnings of the deceased employé during the year preceding his death and deducting therefrom his known expenditures, making a reasonable allowance for the cost of room and board, clothing, and incidental spending money,' or by estimating it obligatory upon the insurer to pay the additional compensation, and that no provision is made for its deduction if death results from the injury. Nichols v. London Guarantee & Accident Co., Ltd., 2 Mass. Wk. Comp. Cases, 814 (decision of Indus. Acc. Bd., affirmed by Sup. Jud. Ct., 217 Mass. 3, 104 N. E. 566, Ann. Cas. 1915A, 862). 99 Mahoney v. Yosemite Valley R. R. Co., 2 Cal. I. A. C. Dec. 150. Where an employé was shown to have contributed various sums to a sister for her support until his death, and one of such contributions was the sum of $230 received from the proceeds of a life insurance policy canceled by him, this amount may be included in the annual contribution for support used as a basis for determining the extent of dependency. Id. 1 Parsley v. O'Brien Bros., 1 Cal. I. A. C. Dec. 494. Where partial dependency is well established, but by reason of the failure of the dependents to keep records of the contributions made by the deceased employé it is impossible to determine directly the amount of his contributions, it may be determined by subtracting from the total earnings of the deceased during the preceding year his estimated expenditures, including the estimated value of board and room received at home; it being shown that he turned in for the support of his family all of his wages, except certain amounts retained for personal purposes. Donovan v. Holy Cross Cemetery, 1 Cal. I. A. C. Dec. 510. Where, the fact of partial dependency being established, the applicant claimed to have received $30 per month from him, but the known wages and expenditures of the deceased indicated that he 2 the income of the dependent relatives from all other sources and finding the difference between this amount and the cost of maintenance of the whole family for the same period. Where contributions made by a deceased employé are shown to have been in irregular amounts, covering a period of fifteen months, the annual contribution will be computed by reducing the total amount given for support during this time to a proportionate amount for a period of twelve months. The Act provides as a basis for determining a death benefit based upon partial dependency the annual contribution devoted by the deceased employé to the support of the dependent. In fixing the extent of dependency in cases where no particular sum is regularly paid over by a son who lives with his aged parents and is their principal support, and the parents do not look to any one else for support, it is proper to consider all the circumstances in the conduct of the household, and to have regard to any other source of income the family may have. Where a son contributes one-half his earnings to his family, consisting of a sister, mother, and father, one-sixth of his average annual income is estimated as having been devoted to the sister's support." Proof of partial dependency need not be made by direct and irrefragable evidence. A technical and rigid requirement to establish the degree of dependency by this sort of evidence would in many cases result in failure to establish any degree of dependency could not well have contributed more than $27.50 a month, the extent of the partial dependency was determined upon the basis of contributions at the monthly rate of $27.50. Dennehy v. Flinn & Tracy, 1 Cal. I. A. C. Dec. 302. 2 Matthiesen v. Pacific Gas & Electric Co., 1 Cal. I. A. C. Dec. 398. When the fact of dependency is established, but the evidence on the extent thereof is not exact, the amount contributed may be estimated from the alleged contributions to the dependent, his average earnings, the living expenses of the dependent, and her other sources of income, if any. Bristol v. Gartland, 1 Cal. I. A. C. Dec. 632. 8 Mahoney v. Yosemite Valley R. R. Co., 2 Cal. I. A. C. Dec. 150. 4 Binkley v. Western Pipe & Steel Co., 1 Cal. I. A. C. Dec. 33. Irwin v. Globe Indemnity Co. of N. Y., 1 Cal. I. A. C. Dec. 547. |