8.4 Importance of Date of Accident in Determining Eligibility and Benefits Payable

• Jurisdiction: Arizona

. An employee’s date of injury or accident and not the date of death determines questions of eligibility and amounts payable.^[64] A spouse married to the deceased employee after the employee’s industrial accident is not eligible for death compensation benefits.^[65] Children are likewise ineligible if conceived after the employee’s accident.^[66] The burial allowance in effect at the time of the employee’s accident is the amount payable, even though the allowance may have been increased before the employee’s death.^[67]

Until 1994 Arizona’s courts held that it was the date of the employee’s injury or accident and not the date of death that determined questions of eligibility and amounts payable. Thus, a spouse who married the deceased employee after the employee’s industrial accident, or a child who was conceived after the accident, was not eligible for death compensation benefits.^[68] In 1994, the supreme court overruled its earlier decisions and held that statutory dependency under A.R.S. §§ 23-1046 and -1064 is determined at the time of death rather than at the time of the accident or injury, so that a spouse who has not abandoned the deceased worker at the time of the workers’ death, or a child who meets the requirements of § 23-1064 (A)(3) at the time of the worker’s death, is presumptively dependent upon the deceased.^[69] The court went on to hold that all dependence determinations under these two statutes “are fixed at the time of death irrespective of any subsequent change in conditions.”^[70] Given this blanket holding, one would assume that the burial allowance in effect at the time of the employee’s death is the amount payable.

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^[64]A.R.S. § 23-1064 (B) (Supp. 1991). Compare A.R.S. § 23-1046 (A)(5) (Supp. 1991).

^[65]Dunn v. Industrial Comm’n, ___ Ariz. ___, 831 P.2d 839 (Ct. App. 1992); Coover v. Industrial Comm’n, 14 Ariz. App. 409, 484 P.2d 21 (1971); Tipton, supra note 35.

^[66]Magma Copper Co. v. Naglich, 60 Ariz. 43, 131 P.2d 357 (1942); Triste v. Industrial Comm’n, 25 Ariz. App. 489, 544 P.2d 706 (1976); Ezell v. Industrial Comm’n, 23 Ariz. App. 448, 533 P.2d 1185 (1975).

^[67]Triste, supra note 65; Ezell, supra note 65; State Compensation Fund v. Stanke, 22 Ariz. App. 74, 523 P.2d 801 (1974); but see Kisco, Inc. v. Industrial Comm’n, 190 Ariz. 389, 949 P.2d 49 (Ct. App. 1997). The employee died in 1996 for reasons related to a job-related heart attack he had suffered in 1970. The court affirmed an award granting the widow the...