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DEPENDENTS OF PETER JOHN NOSSER, JR., DECEASED v. NATCHEZ JITNEY JUNGLE

AUGUST 05, 1987

DEPENDENTS OF PETER JOHN NOSSER, JR., DECEASED
v.
NATCHEZ JITNEY JUNGLE, INC. AND THE TRAVELERS INSURANCE CO.



BEFORE WALKER, C.J., AND ANDERSON AND GRIFFIN, JJ.,

ANDERSON, JUSTICE, FOR THE COURT:

This appeal originates out of the Circuit Court of Adams County and from a denial of appellants' claim for worker's compensation benefits in the death of John Nosser, Jr., (hereinafter Nosser), son/brother of appellants.

The deceased worker left no wife or children and appellants have stipulated that they were not dependents of the decedent as defined by the Mississippi Worker's Compensation Act [MWCA]. The only issue here is the appellants' challenge to the constitutionality of that statute [Mississippi Code Annotated 71-3-25 (Supp. 1986);

 MWCA 9] limiting payment to dependents and thereby in this case denying compensation to the heirs at law of the decedent.

 We find this challenge to be without merit.

 FACTS

 The appellants are the parents and brothers and sisters of Peter John Nosser, Jr., deceased.

 On September 4, 1982, Nosser was employed as assistant manager for Natchez Jitney Jungle, Inc. On this date, there was a robbery at the store and Nosser and another employee, Joseph John Nosser, were killed while in the course and scope of their employment.

 At the time of his death, Nosser was unmarried and had no children or any others dependent upon him for support. The employer/carrier paid $1,000 towards Nosser's funeral expenses and $500 to the second injury fund.

 The record also indicates that the other victim of the robbery Joseph John Nosser left a wife and two children. Total compensation was made to those dependents in the approximate amount of $35,400.

 Appellants filed a petition to controvert on June 6, 1984, alleging that the decedent was not survived by any dependents, but that they were his heirs at law and wrongful death beneficiaries and therefore entitled to compensation. The administrative law judge determined that appellants were not dependents and therefore had no statutory right to recover. The commission, after review, affirmed the finding of the administrative judge, as did the circuit court of Adams County.

 I.

 Appellants argue that non-dependent survivors/heirs-at-law of a deceased worker suffer discrimination because MCA 71-3-25 precludes payment of compensation to non-dependents and any action in tort is barred by the exclusive remedy provision of the act. Appellants therefore question the constitutionality of 71-3-25 making only dependents eligible for compensation. That statute denotes the status and rate of pay to persons entitled to compensation under the act, making no provisions for those not dependent on the decedent.

 This particular provision of the act has not been challenged before in this state. However, a number of our sister states have addressed the question and it is seemingly the majority view that ...


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