dissenting.
Because I would affirm the decision of the trial court, I respectfully dissent. Zachery v. Royal Indem. Co., 80 Ga. App. 659 (56 SE2d 812), leads me to the conclusion that the widow’s estate was not entitled to compensation because the widow died after she filed a claim and before the hearing. In Zachery, a deceased employee’s mother filed a claim for death benefits under the workmen’s compensation law. The employee’s widow failed to file a claim. The board awarded compensation to the mother and the employer/insurer appealed to the superior court which reversed the judgment of the board. This court ruled that the mother was entitled to receive the benefits, opining: “[W]hile the fact of dependency is determined as of the time of the accident, the fact of eligibility must be determined as of the date of hearing. For instance, both a mother and a widow may be dependent on the date of the accident. Both may file claims. In such circumstances, the widow at the time of the hearing is the one eligible for compensation. However, should the widow have died or remarried after she filed a claim and before such hearing, then and in that event the mother would be eligible for the compensation.” Zachery v. Royal Indem. Co., 80 Ga. App. 659, 662, supra.
The rule set forth in Zachery is clear: Eligibility for benefits must *373be determined as of the date of the workers’ compensation hearing. In my opinion, such a rule is consistent with the underlying remedial purpose of the workers’ compensation law.
Decided July 9, 1985. H. P. Arnall, H. A. Stephens, Nicholas E. Bakatsas, for appellants. Michael J. Bowers, Attorney General, Rita J. Llop, Senior Attorney, for appellee.The workers’ compensation system constitutes “a scheme of social protection which goes no further in nature, amount, or duration, than the necessities of that protection require.” 1 Larson, Law of Workmen’s Compensation, § 2.60. Thus, a workers’ compensation death benefit, unlike tort compensation, is not a property right which survives in favor of heirs, it is an award designed to protect the employee’s dependents from financial insecurity. See OCGA § 34-9-265 (b). It follows that a dependent should not be eligible to receive dependency benefits if she dies or remarries before the hearing. Zachery v. Royal Indem. Co., 80 Ga. App. 659, supra.
With respect to the Subsequent Injury Trust Fund, OCGA § 34-9-358 (a) provides, in pertinent part: “Each insurer or self-insurer who in a compensable fatal case finds no dependents qualifying to receive dependency benefits shall pay into this fund one-half of the benefits which would have been payable to a dependent or dependents if one or more existed, or $10,000, whichever is less.” Although the employee’s widow may have been a dependent at the time of the accident, I would nevertheless rule that she was not eligible, i.e., she did not “qualify” to receive dependency benefits because she died prior to the hearing. Zachery v. Royal Indem. Co., 80 Ga. App. 659, supra; OCGA § 34-9-358 (a). I would hold, therefore, that where, as here, an employee’s widow files a claim for death benefits which is controverted by the employer/insurer and the widow dies before the claim is settled or a hearing is held, the widow is not a dependent “qualifying to receive dependency benefits” within the meaning of OCGA § 34-9-358 (a) and one-half of the benefits which would have been payable to the widow, or $10,000, whichever is less, should be paid to the Subsequent Injury Trust Fund.
I am authorized to state that Chief Judge Banke joins in this dissent.