concurring in part and dissenting in part.
I fully agree with the majority opinion that a litigant in a workers’ compensation case has a constitutional guarantee of a direct appeal to another court as a matter of right. Because, under our statutes, the first court to consider workers’ compensation cases is the Court of Appeals, the matter of right appeal is to the Supreme Court.
On the merits of the case I would affirm the Court of Appeals because the grandchildren were not shown by the evidence to be the dependents of the deceased worker.
It is true that the deceased grandmother contributed money in lieu of rent to her son, in whose residence she lived, and some of this money went for support of the grandchildren, but there was no proof that the value of her contribution exceeded the value of the room and board and services she received from her son, and such proof is necessary to establish any relationship of dependency of the son or the grandchildren. Koppers Coal Co. v. Compton, 258 Ky. 844, 149 S.W.2d 543 (1941).
Even if it be conceded that the grandchildren were partial dependents, I believe the-majority erred in computing dependency as of the time of the injury rather than the time of death of the grandmother.
K.R.S. 342.730 provides for income benefits for disability which will be paid to an injured worker. K.R.S. 342.750 provides for income benefits to dependents when the injury causes the death of a worker, and K.R.S. 342.075(2) provides that for other than dependency which is presumed, the relationship of actual dependency shall be determined in accordance with the facts in existence at the time of the accident.
However, K.R.S. 342.730(3) provides for income benefits when death results before the expiration of a benefit period for causes other than the compensable injury to classes of dependents at the time of death.
The grandchildren in this case were within the class of dependents set forth in K.R.S. 342.730(3)(d), and the question is whether their actual dependency should be determined as of the date of the accident or the date of death of the injured worker.
When an injured worker dies from causes other than the work-related injury, it frequently happens that the death occurs a long time after the accident. Persons actually dependent upon that worker and the degree of the dependency may be entirely different at the time of his death than at the time of the accident. It would seem to be, therefore, that when the injury does not cause the death but the worker subsequently dies before exhausting his period of income benefits, his award, pursuant to K.R.S. 342.730(3), should be continued for the benefit of his dependents, and the determination of his dependents and the degree of their dependency should be made as of the time of death rather than the time of the accident.
GANT, J., joins in this opinion.