dissenting:
While I am appreciative of the logical precision of the syllogism constructed by the majority, I feel constrained to depart from its conclusion for the reason that it ignores an essential element in a dependent’s cause of action. While it is true that such a cause of action is independent and not derivative, nevertheless an integral condition of that cause of action is the existence of an injury to the worker resulting in his death. This is found in the statute itself, which states, “The amount of compensation which shall be paid for an accidental injury to the employee resulting in death is:” (Ill. Rev. Stat. 1983, ch. 48, par. 138.7). Thus, while the cause of action is independent, it is only inchoate until the death occurs. The fact of its independent nature does not ipso facto answer the question of the measure of damages to be applied.
The authorities cited by the principal opinion for its conclusion are not helpful. American Steel Foundries held that a prior settlement agreement by the deceased employee did not bar the widow’s claim for death benefits. Burke was concerned with a limitations question: whether the widow must file within one year of the accident or within one year of the death. General American Life was concerned with questions of intervention. All of these cases reiterate the axiom that the dependent’s cause of action is independent, but none touches the matter of the measure of damages for the plain reason that the same damages applied both before and after the precise questions presented in those cases: abatement, limitations, and intervention.
Nor can I countenance the summary rejection of Stanswsky and Grigsby. Quite to the contrary, I find Stanswsky dispositive. In that case the worker was injured in January 1929. The statute then in force made no provision for the continuation of uncollected benefits to his dependents following his death. The statute was amended, effective July 1, 1929, to provide for such continuation. An award was made to the worker on July 23, 1929, and he died from causes unrelated to the accident on September 3, 1929. His widow sought continuation under the amended statute. The supreme court rejected the claim, saying:
“At the time of the accidental injury in this case the law defined the rights of the employee and circumscribed the limits of the employer’s responsibility. It is clear that such rights to compensation as existed on the date of the injury in January, 1929, could not be enlarged or diminished by an act of the legislature which became effective in July, 1929. *** The law in effect at the time of the injury governs the rights of the parties and not the law effective at the time the award is made or at the death of the injured person.” 344 Ill. 436, 439-40, 176 N.E. 898.
Stanswsky was followed and cited in Wilson-Raymond Constructors Co. v. Industrial Com. (1980), 79 Ill. 2d 45, 51, 402 N.E.2d 584, 587, where the supreme court said, “As a general rule, workmen’s compensation proceedings are governed by the law in effect at the time of the injury.” Accord, Grigsby: “A long line of Illinois decisions has held that the law in effect at the time of the injury determines the rights of the parties.” 76 Ill. 2d 528, 531, 394 N.E.2d 1173.
In none of these cases did the supreme court draw any distinctions, but stated that the rights of the “parties,” i.e., employer, employee, and dependents, all who might benefit from the Act, were determined at the time of injury. Since a dependent’s claim could never arise but for an injury, the governing law at the time of that injury must necessarily control.
As the majority points out, the various jurisdictions have gone their separate ways on this subject, but many of them do so as a result of local statutes. (See 2 A. Larson, Workmen’s Compensation sec. 64.50 (1983).) The Illinois statute is silent on the subject.
I feel that this subject should be explored by the legislature. It is a matter of common knowledge .that spectacular advances in the world of medicine have made possible the prolongation of vital signs almost indefinitely, although the brain waves of the patient remain essentially flat and the patient himself remains in a comatose, or even vegetative, state. Cases factually similar to the one at bar are almost certain to arise in the future, and some public policy should be statutorily enacted to deal with them. Until that time arrives, the holdings of the supreme court in Stanswsky should be followed. If such policy does not come from the legislature, then perhaps the supreme court should review those holdings in the light of present-day medical practices.
I would reverse the trial court and affirm the Commission.