The question posed by this appeal is whether the dependent of a deceased employee who was receiving benefits for permanent disability is entitled to receive payments under the Workers’ Compensation Act as a survivor. We hold that she is not entitled to such benefits.
The decision in this case depends on the interpretation of several sections of the Workers’ Compensation Act. G.S. 97-31(17) was amended effective 1 July 1979 to add the part in brackets.
The loss of both hands, or both arms, or both feet, or both legs, or both eyes, or any two thereof, shall constitute total and permanent disability, to be compensated according to the provisions of G.S. 97-29. [The employee shall have a vested right in a minimum amount of compensation for the total number of weeks of benefits provided under this section for each member involved. When an employee dies from any cause other than the injury for which he is entitled to compensation, payment of the minimum amount of compensation shall be payable as provided in G.S. 97-37.]
The Industrial Commission, relying on Booker v. Medical Center, 297 N.C. 458, 256 S.E. 2d 189 (1979), held that because the right of the plaintiff did not arise until after the amendment to the statute the amendment applied to her claim. We do not believe this was correct. The claim of the plaintiff in Booker was pursuant to G.S. 97-38. G.S. 97-38 creates a claim for dependents of persons who die as the result of a compensable accident. Our Supreme Court held that since the claim for the dependent in that case did not arise until the death of the employee the claim was governed by the statute in effect at the time of the employee’s death. In this case G.S. 97-31(17) does not create a claim for a dependent. The plaintiffs claim is based on Austin Costner’s *123claim. She is entitled to that part of his claim which had vested at his death. Austin Costner’s injury occurred before the amendment to the statute and his claim was governed by the law in effect at that time. See Wood v. Stevens & Co., 297 N.C. 636, 256 S.E. 2d 692 (1979). Because the plaintiffs claim is based on Austin Costner’s claim, it is governed by the law in effect at the time of Austin Costner’s injury.
The appellees argue that the amendment to G.S. 97-31(17) is merely a compilation of the existing case law and that prior to the adoption of the amendment she had a right to the payment of the compensation which would have been due her deceased husband. She bases this argument on McCulloh v. Catawba College, 266 N.C. 513, 146 S.E. 2d 467 (1966); Butts v. Montague Bros., 204 N.C. 389, 168 S.E. 2d 215 (1933); and Wilhite v. Veneer Co., 303 N.C. 281, 278 S.E. 2d 234 (1981). Each of these cases involved a claim by a survivor to benefits of the decedent that had vested prior to death. It was held in each case that a survivor of a deceased employee is entitled to the benefits to which the employee was entitled at the time of his death. In this case Austin F. Costner was entitled under G.S. 97-31(17) to compensation for total and permanent disability according to G.S. 97-29. G.S. 97-29 provided that the benefits would last during Mr. Costner’s total disability. It did not provide that the benefits would survive his death. He had no vested benefit which would pass to his survivor.
We reverse and remand to the Industrial Commission for an order consistent with this opinion.
Reversed and remanded.
Judge WHICHARD concurs.
Judge Johnson dissents.