The question is when the accident and the disability are not synchronous, at which time must there be dependents to authorize the increased allowances under I. C. A., sec.43-1110. The majority opinion holds that I. C. A., sec.43-1102, is not applicable to the determination of this question but applies only to the time of dependency in death cases, yet in no other section in the Workmen's Compensation Act is there a definition of a dependent, and the opinion itself adopts the definition in I. C. A., sec. 43-1102, of dependency as a child or children under 18 years of age who are incapable of self-support or unmarried. If the legislature intended that I. C. A., sec. 43-1102, supra, should make the definition therein contained of a dependent apply to cases of disability under I. C. A., sec. 43-1110, and the opinion so intimates and I think correctly so, it seems to me to be clear that the legislature equally intended I. C. A., sec. 43-1102,supra, should *Page 391 fix the determinative time of dependency. The phrasing of this section is all inclusive:
"Dependents. — The following persons, and they only, shall be deemed dependents and entitled to compensation under the provisions of this act: . . . ." (Italic mine.)
and fixes the date of dependency as follows:
"The relation of dependency must exist at the time of the accident."
The act, at the time it was adopted, its amendments and the decisions of this court, recognize the distinction between accident and injury (I. C. A., sec. 43-1101, and In re Larson,48 Idaho 136, 279 P. 1087), and the stipulation herein differentiates between the accident and the period of disability. The legislature then knew and it appears intended that the definition of dependents in I. C. A., sec. 43-1102, should apply not only in situations where death ensues but of either partial or total disability, and in as strong language as it defines dependency it stated when the dependency should exist to justify compensation. Any other construction would lead to this result: In the case of death if the accident occurred any time within two years before the death and there were dependents at the time of the accident, though not at the time of death, compensation would be paid under sec. 43-1101,supra, taking into consideration such dependents; if, however, at the time of the accident there were dependents, but it resulted only in later disability as herein, when there were no dependents, compensation would not be paid on the basis of dependency. True such construction would prevent recovery of the additional amount if the injured workman acquired dependents after the accident; that, however, is a question of the wisdom of the legislation and not the construction of the statute. Any other construction would lead to two different standards of payment. In other words if we look to sec.43-1102, supra, to determine who are dependents, and we must, because there is no other section defining a dependent, there is just as much reason to look to that section to determinewhen there is dependency which by the section is fixed as of the date of the accident.
I therefore dissent.
Petition for rehearing denied. *Page 392