No. 81-481 IN THE SUPREME COURT OF THE STATE OF MONTANA 1982

HILDA MARIE IVERSON, Claimant and Appellant,

VS. ARGONAUT INSURANCE COMPANY, Defendant and Respondent.

Appeal from: Workers' Compensation Court Hon. Timothy Reardon, Judge presiding. Counsel of Record: For Appellant: JamesA. Curnrning, Columbia Falls,Montana For Respondent: Garlington,Lohn and Robinson,Missoula,Montana

Submitted on briefs: March 25, 1982 Decided: June 9, I982Mr. JusticeFred J. Weber delivered the Opinion of the Court.

Hilda Iverson became entitled to benefits under Montana Workers' Compensation Lawwhen her husband was killed in an industrial accident. Upon her remarriage, Argonaut Insurance Company (Argonaut) terminated her benefit payments. She filed a petition for resumption of payments in the Workers' CompensationCourt. The court found againstMrs. Iverson. From that judgment she appeals. We affirm. The issuepresented is: Whether the lump sumpayment provided for in 92-704.1(4), R.c.M. 1947 (nowprovided for in 39-71-721(5),MCA), which became effective on July 1, 1973, can be applied to a widow whose husband was killed in an industrial accident before the effectivedate and she remarries after the effective date.On March 22, 1973,Hilda Iversonwas married to Gordon J. Iverson. On that date he was killed in an industrial accident. His employer was insured for industrial accidents by Argonaut. Subsequent to the date of his death,Argonaut commenced making death benefit payments to Mrs. Iverson of $40.00 per week. On November 7, 1977,Mrs. Iversonmarried Virgil Dennison. Argonaut terminated payments to her onAugust 15, 1978,and has made no payments to her since that date. The total benefits paid to Mrs. Iversonby Argonaut after November 

### 7, 1977,was the sum of $207.45. On the date of Gordon Iverson'sdeath, the statute in effectwas 92-502,R.C.M. 1947,which provided:"If any beneficiaries ormajor orminor dependents of a deceased employee die, or if the widow or widower remarry, the right of suchbeneficiary or major orminor dependent or suchwidow or widower to compensation under this act shall cease." Two weeks before Gordon Iverson was killed, the legislature enacted a new statute which became effective July 1, 1973. The new statute, 92-704.1, R.C.M. 1947,provided: "Death benefits shall be paid to a widow or widower for life or until remarriage, and in the event of remarriage two (2)years' benefits shall be paid in a lump sum to the widow or widower." This Court has previously held that workers' compensation benefits to an injured worker are determined by the statutes in effect at the time of the injury. 2A. Larson,The Law of Workmen's Compensation 864.50; 

### N. Grosfield, Montana Workers' Compensation Manual at 31 (1979); Simonsv. 

### C. G. Bennett Lumber Company (1965), 146Mont. 129, 133, 404 P.2d 505, 507. Although this Court has not expressly ruled that benefits to beneficiaries other than the injured employee

are determined at the date of injury, the general rule is stated at 82A.L.R. 1244, 1245 (1933): "Asregards the rights of relatives or dependants of a deceased employee to compensation, it is generally held that their rights are controlledby the law as it existed at the time of the injury to the employee,rather than the law as it existed athis death or at the time of the award, the theory being that the workmen's compensation act does not create new rights of action in the relatives or dependants of an employee on his death,but that his rightmerely survives for their benefit." In Yurkovichv. Indus. Acc. Bd. (1957), 132Mont. 77, 86, 314 P.2d 866, 872, a worker was injured on January 19, 1955. On July 1, 1955, a new statute became effective increasing the benefit schedule. The District Court applied the new payment schedule. This Court found no evidence that

### the legislature intended a retroactive application of the

new schedule and required the DistrictCourt to apply the law in effect at the time of the injury. Section 1-2-109,MCA, 

### provides: "No law contained in any of the statutes of Montana is retroactiveunless expressly

so declared." There is no indication that the legislature intended the lump sum payment upon remarriage to apply retroactively. We hold that benefits to beneficiaries under workers' compensation claims are determined by the statutes in effect at the date the worker was injured. Mrs. Iverson's right to benefits were correctly determined by the statutes in effect when her husband was injured. Affirmed.