dissenting:
By the enactment of the new Oklahoma Compensation Act, Chapter 234, 1977 Session Law (effective July 1,1978), the Legislature directed a new era in compensation matters. Among the innovations is a concept of dependency.1
It is inferred by the majority opinion that § 3.1 A(l)c of title 85 may be ignored for under 85 O.S.Supp.1977, § 22 no similar reference to § A(l)c has been enacted. There is, of course, some reference to dependency in § 22 [see § 8(a)] but the reference to dependency is not so sharply identified under § 22 as in § 3.1 A(l)c. Actually the majority holds that “with respect to death benefits we are required to look at the schedule of compensation (85 O.S.Supp. 1977, § 22, 8-11)” and since the last mentioned statute omits or makes little provision for dependents receiving one-half (⅛) or more of the support from a deceased employee, the conclusion is drawn that no benefit is authorized, due or may be paid.
I cannot blind myself to the obvious enlargement and broadening of the “new era” particularly as to classes of persons entitled to enjoy death benefits in the face of a legislative provision as simple and forthright as § 3.1 A(l)c. The mere fact or simply because it is not repeated in the longer administrative § 22 is no reason to ignore the change intended for Workers’ Compensation claims. We are reminded that compensation claims are in derogation *512of the common right of action in the courts.2
It seems safe to opine that common law rules cannot be used to enforce or defeat a claim under Workers’ Compensation Law.3
The revisions in the compenation law which went into effect in July 1978 were sweeping and far-reaching. Section 3.1 of 85 O.S.Supp.1977 scrapped persons denied death benefits because they are not “heirs at law.” Section 3.1(A)(2) defines a “surviving spouse” as “living with or actually dependent upon the employee.” There is likewise provided an alternative or qualification for “surviving spouse:” one “living apart for justifiable cause or by reason of desertion by the employee.” In today’s opinion, the majority conveniently overlooks the definitions and qualifications last set out. Examination of the record and transcript does not show that the lower tribunal considered evidence under today’s definitions.
To me, another factor has not been considered by the majority opinion nor by the trial authority, and this is the provision of § B of 85 O.S.Supp.1978, § 3.1 B, which provides:
“All questions of relationship and dependency (not just relationship alone) shall be determined ... as of the time of death for purposes of income benefits for death.” (Parenthetical phrase supplied; emphasis supplied.)
If § A(2) of 8.1, 85 O.S.Supp.1977,4 requires consideration of dependency, which I believe it does, the fact the employee furnished only some $60.00 to the ceremonial spouse is evidence of a complete failure to show, on behalf of ceremonial spouse, “actual dependency.” Actual dependency is a portion of § 2 to be considered. Section 2 requires the surviving spouse, in order to be eligible for benefits, to be “living with or actually dependent upon the employee.” Needless to say, the ceremonial spouse meets neither test.
Admittedly, there is great variance within the compensation acts of the fifty states. I am nonetheless persuaded that an enlightened, broadening and new approach was intended by the Oklahoma Legislature when in 1977 it enacted a new, basic act. As examples of the modem approach to the dependency versus heirs-at-law dichotomy, see Neureither v. W. Compensation Board, 15 Cal.App.3d 429, 93 Cal.Rptr. 162 (1971); West v. Barton-Marlow, 394 Mich. 334, 230 N.W.2d 545 (1975) and Russell v. Johnson, 220 Ind. 649, 46 N.E.2d 219 (1943). In 1952, the Arizona Supreme Court observed in Hodges v. Industrial Commission, 73 Ariz. 326, 241 P.2d 431, 432 (1952):
“There are no qualifications attached to the question of dependency. There are not requirements of blood or marital relationship set up to guide the Industrial Commission in its determination of the facts of dependency. It is evident, therefore, that the legislature intended anyone who was in fact dependent upon the deceased to be entitled to death benefits under the above quoted section of the code.” (Emphasis theirs.)
The Arizona Court had no trouble in awarding death benefits to the second woman even though she could not qualify as the legal widow.
As the Indiana Court opined in a special concurring opinion, found in Guevara v. Inland Steel, 120 Ind.App. 47, 88 N.E.2d 398, 404 (1948):
“The Workers’ Compensation Act is not a code of morals but is a practical devise for economic protection of employees and those dependent upon them. (Emphasis supplied.)
I would reverse the Workers’ Compensation Court, vacate its judgment and direct that death benefits be paid to Gloria Tatum, spousal dependent, and to depenent minor children, Shy-Easter, Rosbon and Jacqueline Tatum.
. 85 O.S.Supp.1977, § 3.1 A(l)c:
"A. In respect to death benefits under the Worker’s Compensation Act, the following definitions shall apply:
(1) "Actually dependent” means:
a. ...
b. ...
c. any other person dependent in fact upon the employee and refers only to a person who receives one-half (½) or more of his support from the employee;
B. All questions of relationship and dependency shall be determined ... as of the time of death for purposes of income benefits for 'death. Amended by Laws 1977, c. 234, § 7, eff. July 1, 1978.”
. Mashburn v. The City of Grandfield, 142 Okl. 247, 286 P. 789, 791 (1930).
. Brooks v. A.A. Davis and Co., 124 Okl. 140, 254 P. 66, 70 (1927).
."(2) "Surviving spouse" means only the employee’s spouse living with or actually dependent upon the employee at the time of his injury or death, or living apart for justifiable cause or by reason of desertion by the employee;” (Emphasis supplied.)