dissenting.
This matter is before the court mainly to determine whether OCGA § 34-9-265 (b) (5) violates the Equal Protection Clauses of the Georgia Constitution and the United States Constitution. Turning briefly to the facts, we see that Jose Morales, age 31, was employed as a construction worker for appellant on September 19, 1990, when he fell 22 stories to his death. He left as dependents a wife and two small children who reside in Mexico. They filed a claim for Workers’ Compensation benefits and were awarded the sum of $1,000 under OCGA § 34-9-265 (b) (5). They appealed that award to the Fulton County Superior Court which found the statute in question to be violative of the Equal Protection Clauses of the Georgia Constitution and the Fourteenth Amendment of the United States Constitution. On this appeal from that decision, a majority of this court, relying in part on the opinion of a lone dissenter of the Florida Supreme Court, has determined that there is no equal protection violation. Finding myself in disagreement with that view as expressed in Divisions 1 and 2 of the majority opinion, I must respectfully dissent.
1. In reaching its decision, the majority first, and in a very artful manner, determined that benefits provided under OCGA § 34-9-265 (b) (5) belong to the dependents and not to the employee’s estate. In support of that approach, the majority opinion analogized the Workers’ Compensation statute to the Wrongful Death Statute, concluding that the legislature intended for death benefits under the Workers’ Compensation statute to vest exclusively in the dependents as they do under the Wrongful Death statute. Having made those determinations, the majority easily dismissed the claim of an equal protection violation because the nonresident-alien dependents no longer have standing to pursue it. However, the analogy to the Wrongful Death statute is fatally flawed. While the right to recover for the death of a family member in a wrongful death action clearly and properly belongs to the survivors, the benefits which flow from the workers’ compensation system are benefits afforded to the worker in exchange for giving up the right to seek redress for injuries suffered on the job. As the Supreme Court of Florida noted, “[o]ne of the primary benefits that an employee works for is the satisfaction and well-being of providing for his or her family.” De Ayala v. Fla. Farm Bureau Cas. Ins. Co., 543 S2d 204, 207 (Fla. 1989). It is painfully ironic that the majority’s analysis of this case results in an employee having bargained *195away a right of action which may have sustained his family after his death in exchange for the right to benefits his family is denied solely because they are not resident in this country.
In considering this matter of standing, we need look no further for guidance than to our sister state of Florida which, in considering the same issue, determined that the dependents were pursuing the rights of the deceased worker and, therefore, that they had standing to challenge the constitutionality of the statutory scheme. In De Ayala v. Fla. Farm Bureau Cas. Ins. Co., supra at 206, the Florida Supreme Court held as follows:
[W]e do not perceive this case as hinging on the constitutional rights of the surviving dependents, but on the constitutional rights of the worker, now deceased. . . . This case concerns whether a worker who happens to have dependents residing out of the country is entitled to the same fruits of his or her labor as any other worker, including the same insurance benefits where the state has required those benefits to be provided. It thus is immaterial that petitioners happen to be nonresident aliens, since they have standing in this context as his beneficiaries.
We should reach the same conclusion here in Georgia because, as was the case in Florida, the benefits in question were generated by the employee’s labor and flowed through him to the intended beneficiaries, his dependents. We should recognize their standing to enforce the rights which Mr. Morales earned by his labor while resident in this country.
2. Having concluded that the nonresident-alien dependents of Mr. Morales have standing to challenge the constitutionality of OCGA § 34-9-265 (b) (5), I now turn to the issue of whether a statutory scheme which provides different benefits to similarly situated persons denies equal protection.
What we have in this controversy are two similarly situated hemispheric neighbors, Canada and Mexico, with dissimilar treatment of their citizens. Resident aliens whose nonresident dependents are Canadian citizens are accorded full rights; resident aliens whose dependents are Mexican citizens are accorded abbreviated rights. Clearly, this is unequal treatment. However, unequal treatment standing alone is not enough to constitute a constitutional violation.
We must determine, therefore, whether this dissimilar treatment rises to the level of constitutional impermissibility. The claim is made that this conduct is violative of the Equal Protection provisions of both the Georgia Constitution and the Fourteenth Amendment of the United States Constitution, which provisions are, as the majority *196points out, substantial equivalents. Again, we would do well to heed the words of the Florida Supreme Court:
In evaluating claims of statutory discrimination, a statute will be regarded as inherently “suspect” and subject to “heightened” judicial scrutiny if it impinges too greatly on fundamental constitutional rights flowing either from the federal or [state constitutions, or if it primarily burdens certain groups that have been the traditional targets of irrational, unfair, and unlawful discrimination. [Cits.]
De Ayala v. Fla. Farm Bureau Cas. Ins. Co., supra at 206. On that issue, the decisions of the U. S. Supreme Court
have established that classifications based on alienage, like those based on nationality or race, are inherently suspect and subject to close judicial scrutiny. Aliens as a class are a prime example of a “discrete and insular” minority [cit.] for whom such heightened judicial solicitude is appropriate.
Graham v. Richardson, 403 U. S. 365, 372 (91 SC 1848, 29 LE2d 534) (1971). The Supreme Court went on in Graham to note that where a suspect classification is involved, there must be a compelling state interest to justify it. No such compelling interest has been articulated or is present in this case. Here we have a deceased employee who, although not a citizen but a resident alien, paid taxes, contributed to the economic growth of this country, and bore the same burdens as other employees; yet his dependents are denied the fruits of his labor, specifically workers’ compensation benefits, because they were not residents of this country at the time of his death. At the same time, Canadians, who are also hemispheric neighbors, are accorded full benefits. I find no justification for that distinction.
Through the statutory scheme approved by the majority in this case, resident alien workers of Mexican citizenship who have nonresident families must wear a badge of inferiority. While we are bound to uphold the laws, we are not bound to do so without giving thought to matters of policy and justice, neither of which would be served by creating a “throw-away” class of workers. Yet, we must recognize that a likely result of the majority’s holding in this case is that employers may with impunity derive considerable savings by skimping on safety precautions because it will be more economical to hire Mexican nationals with nonresident families for the most hazardous jobs, and let them die, than it would be to institute proper safety procedures. Such a result is totally at odds with the intent of the Workers’ Compensation Act.
For the reasons stated above, I must dissent to the majority’s re*197versal of the trial court’s judgment.
Decided May 24, 1993 Reconsideration denied June 18, 1993. Kissiah & Associates, Michael D. Thorpe, W. Martin Miles, for appellants. Coello & Wilder, Bonny Berry Wilder, for appellees. Nelson & Hill, Janet E. Hill, Sujata Gupta Winfield, amicus curiae.I am authorized to state that Justice Sears-Collins joins in this dissent.