Constitutionality of 1989 amendment to subsection (e).

- 1989 amendment to O.C.G.A. § 34-9-13(e) is unconstitutional since the alteration greatly limited availability of workers' compensation benefits to surviving spouses and was enacted in legislation that had the object and title reflecting a purpose of correcting only grammatical errors and to modernize language in various statutes-all non-substantive alterations; 1989 amendment to § 34-9-13(e), which greatly limited the availability of benefits to surviving spouses, was a substantive alteration made in violation of Ga. Const. 1983, Art. III, Sec. V, Para. III. Sherman Concrete Pipe Co. v. Chinn, 283 Ga. 468, 660 S.E.2d 368 (2008).

Policy of the workers' compensation law (see now O.C.G.A. § 34-9-1 et seq.) is to provide a measure of compensation to persons suffering direct loss of support because of the death of an employee as a result of employment. St. Paul-Mercury Indem. Co. v. Robinson, 88 Ga. App. 217, 76 S.E.2d 512 (1953).

This section was intended to set a schedule of priorities among claimants who are not wholly dependent but are otherwise eligible for benefits. O'Steen v. Florida Ins. Exch., 118 Ga. App. 562, 164 S.E.2d 334 (1968).

Section does not award benefits to claimants who are ineligible.

- That part of this section which declared that the spouse and other dependents listed herein are "conclusively presumed" to be "totally dependent" is intended to set a schedule of priorities among claimants who are otherwise eligible for benefits, but does not purport to award benefits to claimants who, for some other reason, are not eligible to participate in the distribution thereof. Zachery v. Royal Indem. Co., 80 Ga. App. 659, 56 S.E.2d 812 (1949), overruled on other grounds, Freeman Decorating Co. v. Subsequent Injury Trust Fund, 175 Ga. App. 369, 333 S.E.2d 204 (1985).

Those persons specifically designated in this section were primary dependents, as they have priority in the payment of death benefits, to the exclusion of all other, or secondary, dependents. O'Steen v. Florida Ins. Exch., 118 Ga. App. 562, 164 S.E.2d 334 (1968).

Secondary dependents are entitled to benefits only if there is no eligible primary beneficiary or the primary beneficiary has waived the beneficiary's right to compensation. O'Steen v. Florida Ins. Exch., 118 Ga. App. 562, 164 S.E.2d 334 (1968).

Entitlement of secondary beneficiaries when primary beneficiary waives compensation.

- Upon death of employee, liability of employer becomes fixed and the employer is bound to pay death benefits under the workers' compensation law (see now O.C.G.A. § 34-9-1 et seq.), and if the beneficiary primarily entitled thereto waives compensation, beneficiaries secondarily entitled thereto may recover. Zachery v. Royal Indem. Co., 80 Ga. App. 659, 56 S.E.2d 812 (1949).

Workers' compensation law (see now O.C.G.A. § 34-9-1 et seq.) provides for compensation for partial dependency as well as total dependency. Glens Falls Indem. Co. v. Jordan, 56 Ga. App. 449, 193 S.E. 96 (1937).

Establishment of partial dependency.

- To establish partial dependency, claimant need not prove claimant had no other income. Glens Falls Indem. Co. v. Jordan, 56 Ga. App. 449, 193 S.E. 96 (1937).

Partial dependency may be established even though contributions are at irregular intervals and of irregular amounts. Glens Falls Indem. Co. v. Jordan, 56 Ga. App. 449, 193 S.E. 96 (1937).

Provision as to division of benefits among partial dependents for their protection.

- Provision that if there is no one wholly dependent and more than one person partially dependent, the death benefit shall be divided among them is merely for the benefit and protection of those partially dependent, as a safeguard to see that each dependent receives their just share of compensation. Glens Falls Indem. Co. v. Jordan, 56 Ga. App. 449, 193 S.E. 96 (1937).

Contingent right of partial dependent to balance of unpaid compensation.

- Provision that a partial dependent is entitled to balance of unpaid compensation in the event the one primarily entitled may no longer receive compensation is a contingent and not a vested right, and no obligation or right to show that one would be entitled to a contingent right arises until the happening of the contingency. Bituminous Cas. Corp. v. Johnson, 79 Ga. App. 105, 53 S.E.2d 119 (1949).

Dependents not limited to relatives.

- Fact that few employees provide support for persons not related to them is no reason to limit the policy of the workers' compensation law (see now O.C.G.A. § 34-9-1 et seq.) by restricting the class of persons who may be shown to have been dependent upon a deceased employee to those related to the employee. St. Paul-Mercury Indem. Co. v. Robinson, 88 Ga. App. 217, 76 S.E.2d 512 (1953).

Legal or moral obligation of support not necessary.

- Legal obligation of deceased employee to support claimant is not necessary to show claimant's dependency, nor is even a moral obligation to support an essential element of dependency. St. Paul-Mercury Indem. Co. v. Robinson, 88 Ga. App. 217, 76 S.E.2d 512 (1953).

Beneficiaries not determined by employee's obligations.

- Workers' compensation is a creature of statute, and the beneficiaries of the death benefits of a deceased employee do not purport to be determined by the obligations the employee had to the beneficiaries. Flint River Mills v. Henry, 239 Ga. 347, 236 S.E.2d 583 (1977), appeal dismissed, 434 U.S. 1003, 98 S. Ct. 707, 54 L. Ed. 2d 746 (1978).

Evidence authorized finding that first cousin of deceased employee was totally dependent upon deceased at time of death. Bituminous Cas. Corp. v. Williams, 80 Ga. App. 337, 56 S.E.2d 157 (1949).

"Dependent" is one who looks to another for support, or is dependent on another for the ordinary necessities of life for a person of that person's class and position; to be entitled to compensation as a dependent, one need not deprive oneself of the ordinary necessities of life to which one has been accustomed. Glens Falls Indem. Co. v. Jordan, 56 Ga. App. 449, 193 S.E. 96 (1937); Wallace v. American Mut. Liab. Ins. Co., 73 Ga. App. 869, 38 S.E.2d 624 (1946); Insurance Co. of N. Am. v. Cooley, 118 Ga. App. 46, 162 S.E.2d 821 (1968).

Dependency does not depend on whether alleged dependents could support themselves without decedent's earnings, or so reduce their expenses that they would be supported independent of decedent's earnings, but on whether they were in fact supported in whole or in part by such earnings, under circumstances indicating an intent on the part of decedent to furnish such support. Glens Falls Indem. Co. v. Jordan, 56 Ga. App. 449, 193 S.E. 96 (1937); Aetna Cas. & Sur. Co. v. Johnson, 70 Ga. App. 698, 29 S.E.2d 318 (1944); Wallace v. American Mut. Liab. Ins. Co., 73 Ga. App. 869, 38 S.E.2d 624 (1946); Insurance Co. of N. Am. v. Cooley, 118 Ga. App. 46, 162 S.E.2d 821 (1968).

Fact that claimant earns enough to barely sustain life does not negate dependency. Glens Falls Indem. Co. v. Jordan, 56 Ga. App. 449, 193 S.E. 96 (1937).

Continued contribution of cash or supplies is evidence of dependency, but not an essential thereof. St. Paul-Mercury Indem. Co. v. Robinson, 88 Ga. App. 217, 76 S.E.2d 512 (1953).

Reliance on contributions must be shown.

- Dependency does not arise upon mere proof that contributions have been made; it must be shown that the contributions were made and relied upon by claimant or claimants for their support, according to their needs, judged by their class and position in life. Glens Falls Indem. Co. v. Jordan, 56 Ga. App. 449, 193 S.E. 96 (1937).

Amount contributed rather than number of dependents as determining factor in fixing benefits.

- Under the workers' compensation law (see now O.C.G.A. § 34-9-1 et seq.), in determining the amount of death benefit payable to a deceased employee's dependents, when there is no one wholly dependent upon the decedent for support, the amount contributed by the deceased is the determining factor, and not the number of dependents. Glens Falls Indem. Co. v. Jordan, 56 Ga. App. 449, 193 S.E. 96 (1937).

"Standard of living" is a generic term and must of necessity be determined by the facts and circumstances in each particular case. London Guar. & Accident Co. v. Bernstein, 74 Ga. App. 692, 41 S.E.2d 810 (1947).

"Standard of living" is a generic term and a question of fact rather than law, when evidence is sufficient to sustain a finding of dependency. Insurance Co. of N. Am. v. Cooley, 118 Ga. App. 46, 162 S.E.2d 821 (1968).

Time for determination of eligibility.

- Eligibility of a primary beneficiary must be determined as of the date of the accident, not the date of the hearing on a claim for benefits. Freeman Decorating Co. v. Subsequent Injury Trust Fund, 175 Ga. App. 369, 333 S.E.2d 204 (1985).

Employment for less than three months.

- Evidence showing, without dispute, that the employee for whose injury or death compensation was sought had been employed for a period of less than three months prior to the accident did not affirmatively disprove the fact of dependency for three months, as required under this section as a condition to allowance of compensation. Maryland Cas. Co. v. Bartlett, 37 Ga. App. 777, 142 S.E. 189 (1928).

Contributions during three-month period not necessarily required.

- It was not necessary, in order to satisfy provision that dependency must have existed three months prior to accident, that it be shown that contributions were actually made during that period, or at the time of the accident, when for a considerable period prior thereto contributions had been made and received by claimants and used to support them according to a standard authorized by their position in life, and there were reasonable grounds for belief that the contributions would have been continued, although in an irregular amount and at irregular intervals, and that the lapse in contributions was not brought about by an intention of the deceased employee to refuse further aid. Glens Falls Indem. Co. v. Jordan, 56 Ga. App. 449, 193 S.E. 96 (1937).

Neither amounts contributed nor times when made are necessarily controlling elements in test of dependency. Neese v. Subsequent Injury Trust Fund, 164 Ga. App. 136, 296 S.E.2d 427 (1982).

Dependency for requisite period held not shown.

- While duration of dependency is not necessarily limited to the actual period of time during which injured employee had been employed or had contributed out of the employee's wages to claimant's support, yet when the employee had, immediately preceding the accident, been employed and had contributed from the employee's wages during a period of time of only ten weeks and four days, which was less than three months, prior to which time the employee had been out of employment and idle, and when it did not otherwise appear that prior to this period claimant was dependent upon the employee, dependency for a period of three months prior to the accident was not shown. Barnett v. American Mut. Liab. Ins. Co., 40 Ga. App. 800, 151 S.E. 537 (1930).

Burden is on claimant to establish fact of dependency for the period provided by this section. Barnett v. American Mut. Liab. Ins. Co., 40 Ga. App. 800, 151 S.E. 537 (1930).

Question of dependency is one of fact, to be determined according to the facts and circumstances of each case, from the amounts, frequency, and continuity of actual contributions of cash or supplies, the needs of the claimants, and the legal and moral obligation of the employee. Georgia Power & Light Co. v. Patterson, 46 Ga. App. 7, 166 S.E. 255 (1932); Glens Falls Indem. Co. v. Jordan, 56 Ga. App. 449, 193 S.E. 96 (1937); London Guar. & Accident Co. v. Bernstein, 74 Ga. App. 692, 41 S.E.2d 810 (1947); St. Paul-Mercury Indem. Co. v. Robinson, 88 Ga. App. 217, 76 S.E.2d 512 (1953); Insurance Co. of N. Am. v. Cooley, 118 Ga. App. 46, 162 S.E.2d 821 (1968).

Except when the workers' compensation law (see now O.C.G.A. § 34-9-1 et seq.) specifically creates a presumption of dependency in favor of named classes, question of dependency is one of fact rather than of law. U.S. Fid. & Guar. Co. v. Washington, 37 Ga. App. 140, 139 S.E. 359 (1927); Wallace v. American Mut. Liab. Ins. Co., 73 Ga. App. 869, 38 S.E.2d 624 (1946).

Each case to be decided on own facts.

- Dependency being a question of fact, at least until the facts are found, each case must be decided on its own facts. Glens Falls Indem. Co. v. Jordan, 56 Ga. App. 449, 193 S.E. 96 (1937).

Conclusiveness of determination of disability and dependency.

- While doctrine of res judicata does not make forever conclusive the determination of the amount of disability and dependency, such determinations are conclusive as to those issues up to and at the time of the hearing and remain conclusive unless a change in condition or dependency occurring after such hearing is shown. Fishten v. Campbell Coal Co., 95 Ga. App. 410, 98 S.E.2d 179 (1957).

Change in dependency occurring subsequent to first hearing can be shown on review, but all issues which were determined or which could have been adjudicated on first hearing, concerning facts as they then stood, are conclusive; any issue which could have been determined on the first hearing is res judicata. Fishten v. Campbell Coal Co., 95 Ga. App. 410, 98 S.E.2d 179 (1957).

Liability of employer becomes fixed upon death of employee, and the employer is bound to pay death benefits under the workers' compensation law (see now O.C.G.A. § 34-9-1 et seq.), providing that the death arose under circumstances held to be compensable, that employer was subject to the provisions of the law, and that a valid claim was filed within the period of limitation on behalf of one entitled to compensation. Zachery v. Royal Indem. Co., 80 Ga. App. 659, 56 S.E.2d 812 (1949), overruled on other grounds, Freeman Decorating Co. v. Subsequent Injury Trust Fund, 175 Ga. App. 369, 333 S.E.2d 204 (1985).

Number of dependents of no concern to employer or carrier.

- When death of employee was compensable, the workers' compensation law (see now O.C.G.A. § 34-9-1 et seq.) fixed the amount to be paid the dependents described in this section; the number of dependents who participated in the use of the fund was of no concern to the employer or insurance carrier, their only interest being to see that the amount of the award was paid to those entitled to receive the award. Georgia Forestry Comm'n v. Harrell, 98 Ga. App. 238, 105 S.E.2d 461 (1958); Handcrafted Furn., Inc. v. Black, 182 Ga. App. 115, 354 S.E.2d 696 (1987).

Award to spouse and children not diminished when one no longer entitled.

- Obligation of employer or insurance carrier to pay compensation awarded jointly to spouse and children is not diminished simply because one of them is no longer entitled to participate in its use. Georgia Forestry Comm'n v. Harrell, 98 Ga. App. 238, 105 S.E.2d 461 (1958).

Meaning of "during dependency."

- When the dependency of a person was fixed by former Code 1933, § 114-414 (see now O.C.G.A. § 34-9-13) as a matter of law, term "during dependency" in former Code 1933, § 114-413 (see now O.C.G.A. § 34-9-265) meant until an event specified in former Code 1933, § 114-414 (see now O.C.G.A. § 34-9-13) as terminating dependency. U.S. Fid. & Guar. Co. v. Dunbar, 112 Ga. App. 102, 143 S.E.2d 663 (1965).

Death of widow, children, or other dependents terminates receipt of benefits. Hartford Accident & Indem. Co. v. Fuller, 102 Ga. App. 384, 116 S.E.2d 628 (1960).

Cited in United States Fid. & Guar. Co. v. Washington, 37 Ga. App. 140, 139 S.E. 359 (1927); Moody v. Tillman, 45 Ga. App. 84, 163 S.E. 521 (1932); Porter v. Liberty Mut. Ins. Co., 46 Ga. App. 86, 166 S.E. 675 (1932); Durham v. Durham, 59 Ga. App. 430, 1 S.E.2d 207 (1939); Rourke v. U.S. Fid. & Guar. Co., 187 Ga. 636, 1 S.E.2d 728 (1939); Employers Liab. Assurance Corp. v. Pruitt, 190 Ga. 479, 9 S.E.2d 641 (1940); Travelers Ins. Co. v. Lester, 73 Ga. App. 465, 36 S.E.2d 880 (1946); Lumbermen's Mut. Cas. Co. v. Allen, 74 Ga. App. 133, 38 S.E.2d 841 (1946); McDonald v. Travelers Ins. Co., 81 Ga. App. 614, 59 S.E.2d 537 (1950); Globe Indem. Co. v. Reid, 92 Ga. App. 828, 89 S.E.2d 905 (1955); Liberty Mut. Ins. Co. v. Ellis, 99 Ga. App. 486, 109 S.E.2d 70 (1959); Gibbons v. Maryland Cas. Co., 114 Ga. App. 788, 152 S.E.2d 815 (1966); Jordan v. Vulcan Materials Co., 121 Ga. App. 695, 175 S.E.2d 123 (1970); Flint River Mills v. Henry, 234 Ga. 385, 216 S.E.2d 895 (1975); Southern Bell Tel. & Tel. Co. v. Hodges, 164 Ga. App. 757, 298 S.E.2d 570 (1982); Sutter v. Turner, 172 Ga. App. 777, 325 S.E.2d 384 (1984).

Proof required for conclusive presumption.

- There is no longer a conclusive presumption of dependency of widows under provisions of O.C.G.A. § 34-9-13, absent proof that surviving spouse was wholly or partially dependent for support upon deceased or was in need of such support. Neese v. Subsequent Injury Trust Fund, 164 Ga. App. 136, 296 S.E.2d 427 (1982).

O.C.G.A. § 34-9-13 does not provide that the fact claimant worked 90 days prior to the spouse's death conclusively rebuts a presumption of total dependency; it merely provides the presumption is rebuttable. Jones v. Winners Corp., 189 Ga. App. 875, 377 S.E.2d 705 (1989).

Evidence showing that a worker's spouse earned a substantial part of their own support and that they received substantial contributions toward their support from sources other than their spouse would authorize a finding that the worker's spouse was dependent upon the worker for support, but it would not authorize a finding that the spouse was totally rather than partially dependent upon the worker. Goode Bros. Poultry Co. v. Kin, 201 Ga. App. 557, 411 S.E.2d 724, cert. denied, 201 Ga. App. 903, 411 S.E.2d 724 (1991).

Absence of marriage.

- When the claimant lived with the employee for approximately 11 years prior to the employee's accidental death on the job, but the two never married, nor did they established a common-law marriage, the claimant was not entitled to a workers' compensation award. Williams v. Corbett, 195 Ga. App. 85, 392 S.E.2d 310, aff'd, 260 Ga. 668, 398 S.E.2d 1 (1990).

One cannot recover dependency benefits arising from a living arrangement that includes neither ceremonial nor common-law marriage. Williams v. Corbett, 260 Ga. 668, 398 S.E.2d 1 (1990).

Although a claimant seeking workers' compensation dependent benefits under O.C.G.A. § 34-9-13 was living with and dependent on the deceased employee at the time of the employee's death from a work injury, they were not married, either ceremonially or by common law, and the claimant was therefore not entitled to recover benefits arising out of that living arrangement. The claimant could not establish a common law marriage from an arrangement that began in 2002, after common law marriage was abolished by O.C.G.A. § 19-3-1.1. Sanchez v. Carter, 343 Ga. App. 187, 806 S.E.2d 638 (2017).

Editor's notes.

- The cases appearing below were decided prior to the 1985 amendments to this Code section and should therefore be consulted with care.

Also, cases dealing with widows and widowers under this Code section should be consulted with care, in light of Insurance Co. of N. Am. v. Russell, 246 Ga. 269, 271 S.E.2d 178 (1980), holding the different treatment of widows and widowers under this Code section unconstitutional.

Different treatment of widows and widowers under this section was unconstitutional under the equal protection clause of the fourteenth amendment. Insurance Co. of N. Am. v. Russell, 246 Ga. 269, 271 S.E.2d 178 (1980).

Spouses entitled to conclusive presumption only if wholly or partly dependent or in need of support.

- Until the General Assembly provides otherwise, paragraphs (b)(1) and (b)(2) of this section should be read together, as follows: "The following persons shall be conclusively presumed to be the next of kin wholly dependent for support upon the deceased employee: A surviving spouse upon a deceased spouse if the survivor was wholly or partially dependent for support upon the deceased or was in need of such support." Insurance Co. of N. Am. v. Russell, 246 Ga. 269, 271 S.E.2d 178 (1980).

General Assembly may reestablish conclusive presumption of dependency for both widows and widowers if it chooses to do so. Insurance Co. of N. Am. v. Russell, 246 Ga. 269, 271 S.E.2d 178 (1980).

Conclusive presumption in spouse's favor absent voluntary desertion or abandonment.

- In determining right of a married person to compensation for the death of their spouse, unless they have voluntarily deserted or abandoned their spouse at the time of the accident and is not at all dependent upon the spouse in fact, the person is conclusively presumed to be wholly dependent upon the spouse. Aetna Cas. & Sur. Co. v. Johnson, 70 Ga. App. 698, 29 S.E.2d 318 (1944).

Widow who has not deserted or abandoned their spouse is conclusively presumed to be totally dependent, and is therefore eligible for an award, so far as dependency is concerned; this right becomes fixed as of the time of the accident. Zachery v. Royal Indem. Co., 80 Ga. App. 659, 56 S.E.2d 812 (1949), overruled on other grounds, Freeman Decorating Co. v. Subsequent Injury Trust Fund, 175 Ga. App. 369, 333 S.E.2d 204 (1985).

Unlike most states which use an actual dependency test, the workers' compensation law (see now O.C.G.A. § 34-9-1 et seq.) conclusively presumes dependency of the married person unless the married person has voluntarily abandoned or deserted their spouse. Gibbons v. Atlantic Steel Co., 124 Ga. App. 71, 183 S.E.2d 212 (1971).

Spouse guilty of voluntary desertion and abandonment of employee spouse not entitled to compensation.

- When claimant is legally married to employee at the time of an accident, but had voluntarily deserted and abandoned employee, was not dependent on employee, and received no actual support from employee at such time, claimant would not be entitled to compensation for employee's death. Harden v. United States Cas. Co., 49 Ga. App. 340, 175 S.E. 404 (1934).

Total or permanent desertion or abandonment contemplated.

- Desertion or abandonment contemplated by former Code 1933, § 114-414 (see now O.C.G.A. § 34-9-13), in order to defeat a claim for compensation filed by the spouse of a deceased employee, must be total and permanent. Liberty Mut. Ins. Co. v. Ellis, 99 Ga. App. 486, 109 S.E.2d 70 (1959).

Passivity not actual abandonment.

- Board's conclusion that married person was perfectly happy to see their spouse go may be quite correct, but it does not turn the person's passivity into an active abandonment. Gibbs v. Atlantic Steel Co., 124 Ga. App. 71, 183 S.E.2d 212 (1971).

Adultery or bigamy after abandonment by spouse no bar to compensation.

- Court erred in affirming order denying compensation to deceased employee's first spouse, from whom the employee was undivorced, as under the law the spouse was conclusively presumed to be entitled to compensation as a dependent of the deceased unless the spouse had voluntarily abandoned or deserted the employee at the time of the accident, and although the spouse moved north and married again after separation from deceased, there was no evidence that the spouse deserted or abandoned the employee, and no evidence that the employee ever offered to have the spouse return to the employee. Sims v. American Mut. Liab. Ins. Co., 59 Ga. App. 170, 200 S.E. 164 (1938).

When claimant has been abandoned by spouse through no fault of the claimant, and later is guilty of adultery or bigamous marriage, this conduct will not bar a recovery of compensation. Williams v. American Mut. Liab. Ins. Co., 72 Ga. App. 205, 33 S.E.2d 451 (1945).

Fact that claimant, after abandonment by claimant's spouse, contracted a bigamous marriage with another, does not in itself operate to exclude claimant from benefits under the workers' compensation law (see now O.C.G.A. § 34-9-1 et seq.). Lumbermens Mut. Cas. Co. v. Reed, 84 Ga. App. 541, 66 S.E.2d 360 (1951); Rush v. Holtzclaw, 154 Ga. App. 4, 267 S.E.2d 316 (1980).

Under this section, a married person is conclusively presumed dependent upon the spouse whom the person has not voluntarily deserted or abandoned at the time of the accident, and the fact that the person might have lived with other people thereafter, if there was no desertion in the leaving, does not militate against the award. Utilities of Augusta, Inc. v. Jackson, 123 Ga. App. 78, 179 S.E.2d 563 (1970).

If dependency arose from immorality, award would be denied.

- Although immorality of claimant is not in itself a ground for denial of workers' compensation, if dependency for support arose out of claimant's immorality, public policy dictates that compensation be denied. Insurance Co. of N. Am. v. Jewel, 118 Ga. App. 599, 164 S.E.2d 846 (1968).

Claimant who entered into a ceremonial marriage with employee when claimant had a living spouse and employee had a living spouse, although claimant did not know that employee had a spouse at the time of the ceremonial marriage, but discovered this fact a month later and continued to live with the employee, was not entitled to an award as a dependent. Insurance Co. of N. Am. v. Jewel, 118 Ga. App. 599, 164 S.E.2d 846 (1968).

When board found that claimant and deceased employee had not contracted a valid marriage because, though they lived together, the evidence showed they had not held themselves out as married, claimant was not entitled to compensation even if claimant was actually dependent on the employee. Georgia Cas. & Sur. Co. v. Bloodworth, 120 Ga. App. 313, 170 S.E.2d 433 (1969).

Abandonment not shown.

- Evidence that the claimant left the abode of the claimant's spouse, the deceased employee, but continued to cohabit with the employee elsewhere, that claimant did not intend that even the partial separation from deceased be permanent, and that the claimant and deceased planned on moving back together in a house to themselves, the evidence showed that claimant did not abandon the claimant's spouse, and demanded an award of compensation. Liberty Mut. Ins. Co. v. Ellis, 99 Ga. App. 486, 109 S.E.2d 70 (1959).

Conclusiveness of finding as to spouse's desertion.

- Findings of industrial commission (now board of workers' compensation) on questions of fact, which would include any issue upon the question of voluntary desertion by a claimant spouse, if supported by any evidence, are conclusive. Maryland Cas. Co. v. England, 160 Ga. 810, 129 S.E. 75 (1925); U.S. Cas. Co. v. Matthews, 35 Ga. App. 526, 133 S.E. 875 (1926); Ocean Accident & Guarantee Corp. v. Council, 35 Ga. App. 632, 134 S.E. 331 (1926).

Finding of the commissioner before whom case was originally tried that the claimant was not entitled to compensation on account of the claimant's admission that the claimant had voluntarily left the claimant's spouse was a conclusion of law, based upon the claimant's own testimony, and hence reversible. Ocean Accident & Guarantee Corp. v. Council, 35 Ga. App. 632, 134 S.E. 331 (1926).

Workers' compensation law (see now O.C.G.A. § 34-9-1 et seq.) includes spouse in category "next of kin." Gulf States Ceramic v. Fenster, 228 Ga. 400, 185 S.E.2d 801 (1971).

Marriage after accident too late.

- Department (now board) properly construed the workers' compensation law (see now O.C.G.A. § 34-9-1 et seq.) in awarding the entire compensation to eight-year-old child of deceased employee and in excluding spouse, who did not marry employee until after the accident. Atkinson v. Atkinson, 47 Ga. App. 345, 170 S.E. 527 (1933).

Timely filing condition precedent to widow's claim.

- Whether widow is entitled to award depends not only upon status and dependency, but upon enforcement of the right in the manner provided by law, and includes as a condition precedent the filing of a claim within one year of the death, pursuant to former Code 1933, § 114-305 (see now O.C.G.A. § 34-9-82); unless the widow does this, the widow's claim is forever barred. Zachery v. Royal Indem. Co., 80 Ga. App. 659, 56 S.E.2d 812 (1949), overruled on other grounds, Freeman Decorating Co. v. Subsequent Injury Trust Fund, 175 Ga. App. 369, 333 S.E.2d 204 (1985).

Remarriage of a widow terminates their right to compensation. Hartford Accident & Indem. Co. v. Fuller, 102 Ga. App. 384, 116 S.E.2d 628 (1960).

Compensation for spouse's death not payable to widow's estate.

- The Workers' compensation law (see now O.C.G.A. § 34-9-1 et seq.) contemplated that compensation awarded hereunder shall be awarded to dependents only, and when compensation, payable in weekly installments, has been awarded to a widow on account of the death of their spouse, and the widow dies before all the installments awarded them have become due and payable, installments becoming due and payable after their death are not payable to their estate. U.S. Fid. & Guar. Co. v. Hairston, 37 Ga. App. 234, 139 S.E. 685 (1927), cert. denied, 37 Ga. App. 834 (1928).

Editor's notes.

- Cases cited below referring to dependency after 18 years of age were decided prior to the 1985 amendments to § 34-9-13. Note also that the 1988 amendment substituted "born out of wedlock" for "illegitimate" in paragraph (a)(1).

Conclusive presumption for minor children.

- Child under 18 years of age was conclusively presumed to be wholly dependent on parent, and was therefore entitled to compensation for the homicide of the parent in accordance with the workers' compensation law (see now O.C.G.A. § 34-9-1 et seq.). Travelers Ins. Co. v. Williamson, 35 Ga. App. 214, 132 S.E. 265, cert. denied, 35 Ga. App. 808 (1926).

Spouse and minor children (including stepchildren) are conclusively presumed to be the next of kin wholly dependent for support upon deceased employee. St. Paul Fire & Marine Ins. Co. v. Miniweather, 119 Ga. App. 617, 168 S.E.2d 341 (1969).

O.C.G.A. § 34-9-13 does not unconstitutionally create a conclusive presumption of the dependence of children. Spalding County Comm'rs v. Tarver, 167 Ga. App. 661, 307 S.E.2d 58 (1983).

Five parent and child relationships contemplated.

- It was the intent of the legislature that the conclusive presumption for a child's dependency upon a deceased employee-parent would arise when one of five relationships of parent and child exists: (1) natural children; (2) stepchildren; (3) adopted children; (4) posthumous children; and (5) acknowledged illegitimate children. New Amsterdam Cas. Co. v. Freeland, 216 Ga. 491, 117 S.E.2d 538 (1960), for comment, see 23 Ga. B. J. 563 (1961).

Phrase "acknowledged illegitimate children" not unconstitutional.

- Phrase "acknowledged illegitimate children", as found in paragraph (a)(1) of O.C.G.A. § 34-9-13, is not unconstitutionally vague. Spalding County Comm'rs v. Tarver, 167 Ga. App. 661, 307 S.E.2d 58 (1983).

This section, designating stepchildren as beneficiaries of death benefits, was not unconstitutional even though there is no moral or legal duty of a stepparent to a stepchild, nor because presumptions in that section may be contrary to fact in a particular case. Flint River Mills v. Henry, 239 Ga. 347, 236 S.E.2d 583 (1977), appeal dismissed, 434 U.S. 1003, 98 S. Ct. 707, 54 L. Ed. 2d 746 (1978).

Provision for stepchildren as enlargement of sphere of conclusive dependency.

- Clause of Ga. L. 1920, p. 167, § 39 providing that the term "child" shall include "stepchild" and that the term "parent" shall include "stepparents" is to be liberally construed as enlarging the sphere of conclusive dependency in favor of such a child, so as to include a right which would not otherwise conclusively exist, and is not to be construed as intended to exclude by unnecessary implication a plainly established claim for the homicide of an actual parent. Travelers' Ins. Co. v. Williamson, 35 Ga. App. 214, 132 S.E. 265, cert. denied, 35 Ga. App. 808 (1926).

Child under 18 is conclusively presumed to be dependent upon the child's father; hence, if the child's mother is divorced and marries another man who becomes the child's stepfather, this section establishes a principle of double dependency, and the stepfather clause does not preclude the child from recovering for the homicide of the child's actual father. Travelers' Ins. Co. v. Williamson, 35 Ga. App. 214, 132 S.E. 265, cert. denied, 35 Ga. App. 808 (1926).

Minor unmarried stepchildren of deceased employee were treated as children under this section and were presumed conclusively dependent upon their stepfather; as such, they are entitled to an award of death benefits. St. Paul Fire & Marine Ins. Co. v. Miniweather, 119 Ga. App. 617, 168 S.E.2d 341 (1969).

"Stepchild" includes an illegitimate child of widow. U.S. Fire Ins. Co. v. City of Atlanta, 135 Ga. App. 390, 217 S.E.2d 647 (1975).

No application of presumption to natural father after adoption by another.

- If undisputed facts show that, at the time of the injury or death of the natural father, relationship of parent and child as between the injured or deceased natural father did not exist by reason of the adoption of the child by another, with whom the child was living and being wholly supported at the time of the injury or death of the natural father, the conclusive presumption of dependency would arise as against the adoptive father and have no application as to the natural father. New Amsterdam Cas. Co. v. Freeland, 216 Ga. 491, 117 S.E.2d 538 (1960), for comment, see 23 Ga. B. J. 563 (1961).

Minor natural child of deceased employee who had been legally adopted by the child's parent's second spouse and wholly supported by the spouse after divorce of the child's parent and decedent was not entitled to recover compensation as a dependent of the deceased employee. Alexander v. Employers Mut. Liab. Ins. Co., 102 Ga. App. 750, 118 S.E.2d 215 (1960).

After final order of adoption creating legal relationship of parent and child between child and adoptive parent, child is not entitled to workers' compensation benefits by reason of the death of the child's natural parent. U.S. Fid. & Guar. Co. v. Dunbar, 112 Ga. App. 102, 143 S.E.2d 663 (1965).

Adoption not yet final.

- If at the time of the injury or death of natural parent there has been no final order of adoption and relationship of parent and child still exists between the natural parent and the child, a conclusive presumption of dependency would arise against the natural parent. U.S. Fid. & Guar. Co. v. Dunbar, 112 Ga. App. 102, 143 S.E.2d 663 (1965).

Rights after parental termination order.

- Even after parental termination order, child possesses the rights afforded under workers' compensation so long as the child retains the status of "child." Menard v. Fairchild, 254 Ga. 275, 328 S.E.2d 721 (1985).

Phrase "posthumous children" includes posthumous acknowledged illegitimate children. American Mut. Liab. Ins. Co. v. Hogan, 91 Ga. App. 891, 87 S.E.2d 661 (1955).

What constitutes acknowledgement dependent on circumstances.

- Posthumous children include posthumous acknowledged illegitimate children; what constitutes acknowledgement on the part of the putative father necessarily depends on the circumstances of each case, as there is no definitive rule to be applied. Patterson v. Liberty Mut. Ins. Co., 110 Ga. App. 23, 137 S.E.2d 549 (1964).

In deciding claim for illegitimate posthumous child, it is immaterial whether or not putative father knew as a matter of positive fact that mother was pregnant, it being sufficient that putative father believed such to be the case when in fact it was, and that, acting on such belief, he acknowledged his parentage of the child. Patterson v. Liberty Mut. Ins. Co., 110 Ga. App. 23, 137 S.E.2d 549 (1964).

Illegitimate grandchild of woman living with employee.

- Four-year-old illegitimate child of illegitimate child of woman with whom deceased employee had lived for 12 years, who had been cared for and supported by deceased employee since the child's birth, was undoubtedly reliant upon the employee's support and had a reasonable expectation of its continuance had the employee lived, and superior court did not err in affirming award of death benefits to such child, who was actually dependent upon the deceased employee, regardless of bigamous relationship between child's grandparent and deceased employee. St. Paul-Mercury Indem. Co. v. Robinson, 88 Ga. App. 217, 76 S.E.2d 512 (1953).

Infant stepgrandchild not a primary dependent.

- Infant stepgrandchild of a deceased employee, although living with and wholly dependent upon the deceased, does not fall within the class of named "primary" dependents, and is not entitled to participate in an award. St. Paul Fire & Marine Ins. Co. v. Miniweather, 119 Ga. App. 617, 168 S.E.2d 341 (1969).

Legislature intended to make named children beneficiaries without regard to their actual dependency on the deceased employee. Flint River Mills v. Henry, 239 Ga. 347, 236 S.E.2d 583 (1977), appeal dismissed, 434 U.S. 1003, 98 S. Ct. 707, 54 L. Ed. 2d 746 (1978). But see New Amsterdam Cas. Co. v. Freeland, 216 Ga. 491, 117 S.E.2d 538 (1960), for comment, see 23 Ga. B. J. 563 (1961).

Status of a child as a dependent beneficiary was fixed at the time provided by this section, and did not change except upon an event expressly provided by that section for terminating compensation. U.S. Fid. & Guar. Co. v. Dunbar, 112 Ga. App. 102, 143 S.E.2d 663 (1965).

Cessation of dependency.

- Children attaining age of 18 ceased to be entitled to death benefits unless physically or mentally incapacitated, and certain classes of dependents would have ceased to be entitled to the death benefits if they ceased to be dependent. Hartford Accident & Indem. Co. v. Fuller, 102 Ga. App. 384, 116 S.E.2d 628 (1960).

Child who has reached 18 years of age was no longer deemed a dependent unless the child was physically or mentally incapable of earning a living. Turner v. U.S. Fid. & Guar. Co., 125 Ga. App. 371, 187 S.E.2d 905 (1972).

Determination as to dependency after age cutoff not required.

- Superior court judge properly affirmed award allowing compensation to minor claimant only until the claimant reached age 18, without providing for a further hearing on dependency as a matter of fact when the claimant reached that age. Turner v. U.S. Fid. & Guar. Co., 125 Ga. App. 371, 187 S.E.2d 905 (1972).

Inapplicability of paragraph (b)(1) to claim for compensation on account of child death.

- While, legally speaking, a married person could only demand support from the person's, this would not prevent dependency upon the person's child as a matter of fact. Glens Falls Indem. Co. v. Jordan, 56 Ga. App. 449, 193 S.E. 96 (1937).

Paragraph (b)(1) of this section was intended to apply when the claimant spouse makes a claim for compensation on account of the death of the employee spouse, not when the claimant spouse makes a claim for compensation on account of the death of the claimant spouse's child; the employee spouse was still living at the time of the death of child, this paragraph had no application. Aetna Cas. & Sur. Co. v. Johnson, 70 Ga. App. 698, 29 S.E.2d 318 (1944).

In a proceeding under the workers' compensation law (see now O.C.G.A. § 34-9-1 et seq.) by a parent to recover for the death of a child, it is incorrect to instruct that if the parent is a married person who has not voluntarily deserted their spouse and is dependent upon their spouse, the married person is conclusively presumed to be wholly dependent upon their spouse, and is thereby precluded from receiving compensation for their child's death. Aetna Cas. & Sur. Co. v. Johnson, 70 Ga. App. 698, 29 S.E.2d 318 (1944).

Criteria for determining whether minor child contributes to parent's support.

- Whether or not minor child living with parent, who is working and receiving a wage, contributes to parent's support and thereby renders parent partially dependent on the minor for support is determinable according to the facts and circumstances of the particular case, from the amount contributed by the child, the frequency of the contribution, the continuity of the contribution, whether in cash or in supplies, the necessities of the parent, the amount of the earnings of the parent, the necessity of the child's contribution, and the legal or moral obligation to contribute to the parent's support. Burel v. Liberty Mut. Ins. Co., 56 Ga. App. 716, 193 S.E. 791 (1937).

Dependency arising from services rendered by child.

- Dependency, as contemplated in the workers' compensation law (see now O.C.G.A. § 34-9-1 et seq.), does not arise solely by reason of employment of the employee and contribution by the employee from the employee's wages to the support of claimant, but may arise otherwise, as out of services rendered to claimant by employee who is claimant's child, in work about the home. Maryland Cas. Co. v. Bartlett, 37 Ga. App. 777, 142 S.E. 189 (1928).

Total dependency on child not precluded by gratuitous contributions of others.

- When evidence tended to show that parent was wholly dependent upon deceased child, the employee, but that two of the parent's other children gratuitously contributed board to their second parent, it could not be said that these gratuitous contributions of board prevented an award of total dependency. Ocean Accident & Guarantee Corp. v. Jones, 56 Ga. App. 820, 194 S.E. 75 (1937).

Cost of minor employee's support should not be deducted from the employee's contribution to family income. Commercial Union Ins. Co. v. Brock, 134 Ga. App. 903, 216 S.E.2d 700 (1975).

Cost of maintenance of deceased employee.

- Cost of maintenance of a minor child who contributed to the support of their parent's family, so that the parent was their partial dependent, should not be considered in determining the amount of compensation to which dependent parent was entitled under the workers' compensation law (see now O.C.G.A. § 34-9-1 et seq.) for son's death. Macon Dairies, Inc. v. Duhart, 69 Ga. App. 91, 24 S.E.2d 732 (1943).

Expenditures in maintaining property considered in determining dependency.

- When claimant parents owned property, some of which was encumbered, and a substantial portion of the income from the property was necessary to maintain the property and to pay off encumbrances and taxes, these expenditures could be considered in determining whether claimants were dependent upon the monthly contributions of deceased unmarried child to maintain their ordinary standard of living. London Guar. & Accident Co. v. Bernstein, 74 Ga. App. 692, 41 S.E.2d 810 (1947).

Award to parent dependent on minor child.

- When it appears that parent is in fact dependent upon minor child, award of compensation to parent for death of the child is not invalid as being for parent and the use of the parent and their spouse and another minor child. Maryland Cas. Co. v. Bartlett, 37 Ga. App. 777, 142 S.E. 189 (1928).

Finding of dependency of parent on minor child not demanded by facts.

- When parent receives a wage which may be sufficient to support the parent and their family in their station in life, and is not in need of the earnings of any one of their children for their support or the support of the family, although one of the minor children may, at infrequent and indeterminable intervals, have contributed money and groceries in indeterminable amounts towards the support of the family, and may pay a fixed sum periodically to the parent in payment of board, there being no legal obligation resting on the child to support the parent, but on the other hand the parent being under a legal obligation to support the child, the inference is not demanded as a matter of law that the parent is to any degree dependent on the child's earnings for the parent's support or the support of the parent's family. Burel v. Liberty Mut. Ins. Co., 56 Ga. App. 716, 193 S.E. 791 (1937).

Failure to apportion parents' benefits held not error.

- When contributions have been made by deceased employee to mother and father as a family group, and the award is made to the father for the use and benefit of them both, and there is no objection to the award on the part of the mother, the insurer is not injured, nor is the intention of the workers' compensation law (see now O.C.G.A. § 34-9-1 et seq.) violated by a failure to actually divide the death benefit by making two awards, one in favor of each parent, in an amount to be determined by the relative extent of their dependency. Glens Falls Indem. Co. v. Jordan, 56 Ga. App. 449, 193 S.E. 96 (1937).

Partially dependent mother excluded from compensation by child under 18.

- Unmarried child of deceased employee, under the age of 18, was conclusively presumed to be wholly dependent upon the deceased, and was entitled to the full death benefits until the child reached the age of 18, to the exclusion of employee's parent, when there was a finding by the board, supported by evidence, that employee's parent was only partially dependent upon the deceased. Mays v. Glens Falls Indem. Co., 77 Ga. App. 332, 48 S.E.2d 550 (1948).

Entitlement of parent to benefits when spouse waives right thereto.

- When employer and insurance carrier are subject to the workers' compensation law (see now O.C.G.A. § 34-9-1 et seq.), and deceased employee leaves surviving him a spouse who is conclusively presumed to be totally dependent upon the employee and eligible for death benefits under the law, but the spouse waives the right to such benefits by refusing to file a claim therefor within the period of limitations, and when a proper claim is filed within the period by the parent of the deceased employee, who was totally dependent upon the employee for support, employer and insurance carrier cannot avoid their liability for the payment of death benefits by merely showing that there is a widow in life. Zachery v. Royal Indem. Co., 80 Ga. App. 659, 56 S.E.2d 812 (1949).

Am. Jur. 2d.

- 82 Am. Jur. 2d, Workers' Compensation, §§ 151, 160, 161 et seq., 181, 391.

C.J.S.

- 99 C.J.S., Workers' Compensation, § 289 et seq. 100A C.J.S., Workers' Compensation, §§ 1032, 1044.

ALR.

- Workmen's compensation: effect of divorce on right of spouse or child to compensation, 8 A.L.R. 1113; 13 A.L.R. 729.

"Dependency" within Workmen's Compensation Act, 13 A.L.R. 686; 30 A.L.R. 1253; 35 A.L.R. 1066; 39 A.L.R. 313; 53 A.L.R. 218; 53 A.L.R. 1066; 62 A.L.R. 160; 86 A.L.R. 865; 100 A.L.R. 1090.

Workmen's compensation: effect of divorce on right of spouse or child to compensation, 13 A.L.R. 729.

Constitutionality of provision of Workmen's Compensation Act for contribution to general fund in absence of dependents of deceased workman, 20 A.L.R. 1001; 35 A.L.R. 1061.

Workmen's compensation: injury while riding to or from work in employer's conveyance as arising out of, or in the course of employment, 24 A.L.R. 1233; 62 A.L.R. 1438; 145 A.L.R. 1033.

Survival of right to compensation under Workmen's Compensation Acts upon the death of the person entitled to the award, 29 A.L.R. 1426; 51 A.L.R. 1446; 87 A.L.R. 864; 95 A.L.R. 254.

Change of status as regards relationship or dependents after injury as affecting compensation to employee under Workmen's Compensation Act, 73 A.L.R. 1016.

Bigamous character of marriage as affecting right of one party thereto to compensation for death of other under Workmen's Compensation Act, 80 A.L.R. 1428.

Right of woman who marries injured workman to compensation as his widow or surviving wife under Workmen's Compensation Act, 98 A.L.R. 993.

Workmen's compensation: release or waiver of claim by employee as affecting right of dependents in event of his death as result of injury, 101 A.L.R. 1410.

Rights and remedies of persons in deferred or secondary class of beneficiaries of death benefits under Workmen's Compensation Acts as affected by acts or omissions of one in primary class of beneficiaries, 105 A.L.R. 1232.

Workmen's compensation: power or duty of commission to direct payment to another of balance remaining unpaid upon award at termination of right of person to whom it was originally made, 108 A.L.R. 158.

Right of one who is excluded or ignored by bureau's award of compensation to another to appeal therefrom, 128 A.L.R. 1490.

Children of one with whom deceased workman was living in illicit relations as dependents within Workmen's Compensation Act, 154 A.L.R. 698.

Remarriage tables, 25 A.L.R.2d 1464.

Workmen's compensation: posthumous children and children born after accident as dependents, 18 A.L.R.3d 900.

Discrimination on basis of illegitimacy as denial of constitutional rights, 38 A.L.R.3d 613.

Legal status of posthumously conceived child of decedent, 17 A.L.R.6th 593.