#### KENNECOTT COPPER CORPORATION, Plaintiff, v. The INDUSTRIAL COMMISSION of Utah and Irene W. Peay, widow of Justin W. Peay, Deceased, Defendants.

No. 13676.

Supreme Court of Utah.

Nov. 26, 1974.

James B. Lee and Erie V. Boorman of Parsons, Behle & Latimer, Salt Lake City, for plaintiff.

Vernon B. Romney, Atty. Gen., Frank V. Nelson, Asst. Atty. Gen., for Industrial Commission.

Andrew R. Hurley, Salt Lake City, for Irene W. Peay.

TUCKETT, Justice:

This is an original proceeding in this court to review an award of the Industrial Commission to Irene W. Peay for the burial expenses of her late husband.

Justin W. Peay worked at the Arthur Plant of the Kennecott Corporation from March 1930 until June 30, 1956. On June 21, 1956, the Industrial Commission made and entered an order of total permanent disability of Justin W. Peay due to third degree silicosis with inactive tuberculosis and the plaintiff was ordered to pay weekly compensation beginning July 1, 1956, for a period of five years but not to exceed the sum of $12,100, the maximum provided for by the statute. Plaintiff continued to make the payments until the sum of $12,100 was paid and thereafter Peay continued to receive compensation payments from the Combined Injury Benefit Fund until he died at the age of 84, .on January 11, 1973. On February 22, 1974, the Commission entered an order requiring the plaintiff to pay the sum of $450 to Irene W. Peay for burial expenses for her late husband, Justin W. Peay. Plaintiff is here seeking a review of that order.

It is the plaintiff’s contention here that the award of burial expenses is barred by the provisions of Section 35-2-13 (a) (3), Utah Code Annotated 1953, which reads as follows:

> No compensation shall be paid in case of silicosis unless during the fifteen years immediately preceding the disablement, the injured employee shall have been exposed to harmful quantities of silicon dioxide (SÍO2) dust for a total period of not less than five years in this state and unless total disability results within (a) three years in case of silicosis not complicated by active tuberculosis, or (b) five years in case of silicosis compli*466cated by active tuberculosis, from the last day upon which the employee actually worked for the employer against whom compensation 1⁄8 claimed.

Section 35-2-12 (b) defines the word “compensation” as the payments and benefits provided for in this act.

The award of burial expenses was made by the Commission pursuant to the provisions of Section 35-2-15(10), Utah Code Annotated 1953, as amended, which reads in part as follows:

> The benefits to which a disabled employee or his dependents shall be entitled under this act . . . are to be limited as follows:

> * * * * 1⁄8 *

> (10) In case death results from such occupational disease the employer shall pay not to exceed $1,000 burial expenses.

The defendants contend that the award of burial expenses is not limited by the restrictions of Section 35-2-13 (a) (3). The defendants rely on the case of Kennecott Copper Corporation v. Anderson1 which arose under the Workmen’s Compensation Statute wherein this court ruled that the statute imposing a six year limitation on compensation did not bar an award for medical and hospital expenses after the six year period. It appears that the decision in that case, as well as the dissent of Mr. Justice Ellett in the case of The United States Smelting, Refining and Mining Company v. Nielsen,2 was based in a large degree upon the provisions of Section 35 — 1— 78 which give the Commission continuing powers and jurisdiction to make modifications and changes with respect to former findings, or orders with respect thereto, as in its opinion may be justified. The Occupational Disease Act does not include a similar provision.

We conclude that the award for burial expenses is barred by the provisions of Section 35-2-13, Utah Code Annotated 1953, and the same is hereby set aside. No costs awarded.

CALLISTER, C. J., and HENRIOD, and CROCKETT, JJ., concur.

1

. 30 Utah 2d 102, 514 P.2d 217.

2

. 19 Utah 2d 239, 430 P.2d 162.

ELLETT, Justice

(dissenting), -

I dissent.

In 1956 Justin W. Peay was completely and permanently disabled because of silicosis, which developed while he was an employee of Kennecott Copper Corporation. He was awarded maximum compensation under the occupational disease statutes 1 of this state. He died in 1973 at the age of 84, almost 17 years after he last worked for Kennecott.

. Kennecott maintains it's own compensation insurance program, and the Industrial Commission ordered it to pay to Irene W. Peay, the widow of Justin W. Peay, the sum of $450 as burial expenses.

The plaintiff contends that no award can be made toward burial expenses because death did not occur within five years from the last day which the deceased worked at his job.

The statute which Kennecott asserts is a bar to the award in Section 35-2-13 (a) (3), which is set forth in the main opinion.

This part of the statute merely states the conditions which must have existed in order to entitle an *employee*to receive compensation during his lifetime. It has no application to death benefits, and there is no contention made that Justin W. Peay did not qualify for and receive the maximum statutory compensation award.

Subsection (b) (3) of the cited statute provides for death benefits to *dependents*under certain circumstances, to wit: Subsection (b) (3) (a) awards death benefits when the employee is totally and permanently disabled and where compensation has been paid or awarded. There is no time limitation in such a case. Subsection (b) (3) (b) permits an award to be made to *467dependents where death results within five years from the last work but does not require that an award be made to the employee nor that he be totally and permanently disabled.

The section which does control here is Section 35-2-15(e) enacted by Chapter 77, Laws of Utah 1971, which was the statute in force and effect when Justin W. Peay died. It reads: “In case death results from such occupational disease the employer shall pay not to excees $1,000 burial expenses.”

I think the Industrial Commission acted within its lawful powers when it awarded burial expenses in the sum of $450. I would affirm the award as made.

1

. Title 35, Chapter 2, U.C.A.1953 as amended.