This is a review of proceedings had before the Industrial Commission, under the Workmen's Compensation Act.
Walter Brooks, an alien, while regularly employed by the American Fuel Company, at Sego, Utah, was killed by accident arising out of his employment on June 4, 1922. At the time of his death, his wife, Ellen Brooks, and his minor son, William Brooks, both aliens, were living with him at Sego, Utah, and were wholly dependent upon him for support. Liability for compensation at the maximum rate of $16 per week was admitted and paid for the period of 156 weeks, when the employer declined to make any further payments upon the ground that the dependents, shortly after the death of the employee, and on September 7, 1922, had departed from the United States and ever since had been residents of England. The matter was brought before the Industrial Commission and a hearing was had. After the hearing, the commission found the facts as above stated, and decided that, notwithstanding their removal to England, the dependents were entitled to compensation for the full period of time provided by law, as in the case of resident or citizen dependents. An order and award were accordingly made for the payment of compensation, at the rate mentioned, for an additional period of 156 weeks, or 312 weeks in all.
The objection to the award is based upon Comp. Laws Utah 1917, § 3140, as amended by Laws Utah 1921, c. 67, which, after providing in general for the amount of benefits in case of death, continues as follows:
"(8) When any alien dependent of the deceased resides outside of the United States of America or any of its dependencies, or Canada, such dependent shall be paid not to exceed one-half the amount provided herein."
The statute was interpreted by the Industrial Commission as having application only when the alien dependent resides outside of the United States, etc., at the time 1 of the death of the employee, while the plaintiffs contend *Page 336 for the construction that such nonresidence, occurring during any period of the time when compensation is payable, operates to reduce the amount to be paid.
The words of the statute, when given their ordinary signification, plainly permit the plaintiffs' contention, while the other view requires the interpolation of a limitation not contained in the statute itself. Besides, the provision relates to the amount of compensation which the dependent "shall be paid," and not to the amount which shall be awarded. If the residential status of a dependent was intended to be determined, once for all time, as of the date of the death of the deceased employee, it seems that the status, as determined, should have been made applicable to the time the compensation was awarded, rather than to the extended period during which it should be paid.
We know of no persuasive reason why the amount of compensation, as affected by the fact of residence, should be permanently fixed as of the status in that respect at the time of the employee's death; and, when the Legislature has failed to make such an intention apparent, and when there is nothing in the context nor general purpose or policy of the law which requires it, such limitation will not be supplied by judicial construction.
The principal reason for the policy of paying a less amount of compensation to dependents who are alien nonresidents is the well-known fact that the cost of living in most 2 foreign countries is substantially less than in the United States. The policy of the law is defeated rather than promoted by that interpretation which would finally determine the matter according to the residence at the time of the employee's death. The period of payment in death cases extends over a considerable time — in most cases, for six years. It seems more in consonance with the spirit and purpose of the statute to accommodate the payments to such change as may occur during that period in the residence of alien dependents, rather than to compel payments based upon residence *Page 337 at any previous arbitrary time, when the fact of residence at the time of payment is different.
No positive judicial precedent upon the precise question has been called to our attention. However, in Lubanski v. D., L. W.R.R. Co., 81 Pa. Super. 538, some support may be found for the conclusions we have reached. There a similar application of a like statute was made by the Workmen's Compensation Board, and the amount of a previous award reduced on account of the intervening removal of dependents to a foreign country. On appeal, the award was assailed for other reasons, and affirmed. The court assumed, but did not decide, that the change of residence was a change of status.
The the reasons stated, we conclude that the Industrial Commission was without power to make the award in question, and the same is hereby annulled.
GIDEON, C.J., and THURMAN and FRICK, JJ., concur.