Colorado § 8-41-501 - Persons presumed wholly dependent.

§ 8-41-501. Persons presumed wholly dependent.

(1) For the purposes of articles 40 to 47 of this title, the following described persons shall be presumed to be wholly dependent (however, such presumption may be rebutted by competent evidence):

(a) Widow or widower, unless it is shown that she or he was voluntarily separated and living apart from the spouse at the time of the injury or death or was not dependent in whole or in part on the deceased for support;

(a.5) A person who is designated in a designated beneficiary agreement for purposes of receiving workers' compensation benefits in accordance with the provisions of article 22 of title 15, C.R.S., unless it is shown that the designated beneficiary was voluntarily separated and living apart from the other designated beneficiary at the time of the injury or death or was not dependent in whole or in part on the deceased for support;

(b) Minor children of the deceased under the age of eighteen years, including posthumous or legally adopted children;

(c) Minor children of the deceased who are eighteen years or over and under the age of twenty-one years if it is shown that:

(I) At the time of the decedent's death they were actually dependent upon the deceased for support; and

(II) Either at the time of the decedent's death or at the time they attained the age of eighteen years they were engaged in courses of study as full-time students at any accredited school. The period of presumed dependency of such persons shall continue until they attain the age of twenty-one years or until they cease to be engaged in courses of study as full-time students at an accredited school, whichever occurs first.

Source: L. 90: Entire article R&RE, p. 484, § 1, effective July 1. L. 91: Entire section amended, p. 1350, § 1, effective May 29. L. 2009: (1) amended, (HB 09-1260), ch. 107, p. 439, § 2, effective July 1.

Editor's note: This section is similar to former § 8-50-101 as it existed prior to 1990.

ANNOTATION

I. General Consideration.

II. Widow or Widower as Dependent.

III. Minor Child as Dependent.

I. GENERAL CONSIDERATION.

Law reviews. For comment on McBride v. Indus. Comm'n appearing below, see 8 Rocky Mt. L. Rev. 292 (1936).

Annotator's note. Since § 8-41-501 is similar to § 8-50-101 as it existed prior to the 1990 repeal and reenactment of the "Workers' Compensation Act of Colorado", articles 40 to 47 of this title, relevant cases construing that provision have been included in the annotations to this section.

The workmen's compensation act is to be liberally construed in order to effectuate its beneficent purposes. McBride v. Indus. Comm'n, 97 Colo. 166, 49 P.2d 386 (1935).

No specific provision prescribes an equal apportionment among dependents. It does not follow from the language of former section, "conclusively presumed to be wholly dependent", when read in conjunction with § 8-50-115, that all such dependents must, as a matter of law, be treated on an equal basis. To so conclude would be to ignore the express provisions of § 8-50-115. Spoo v. Spoo, 145 Colo. 268, 358 P.2d 870 (1961).

The question of dependency of a widow and minor children is purely a question of law. United States Nat'l Bank v. Indus. Comm'n, 128 Colo. 417, 262 P.2d 731 (1953).

Dependency rests upon an obligation of support and not upon the question as to whether that obligation is being discharged. Latting v. Broadmoor Hotel, 105 Colo. 386, 98 P.2d 857 (1940).

"Wholly dependent" means dependent on no one else. London Guarantee & Accident Co. v. Indus. Comm'n, 78 Colo. 478, 242 P. 680 (1925).

Applied in Travelers Ins. Co. v. Indus. Comm'n, 646 P.2d 399 (Colo. App. 1981); Frontier Airlines v. Indus. Comm'n, 654 P.2d 1333 (Colo. App. 1982).

II. WIDOW OR WIDOWER AS DEPENDENT.

State law of marriage applied to establish marital relationship. In compensation proceedings where a claimant must establish a marital relationship to the deceased, the domestic relations law of the state where the marriage was contracted is controlling. Williams v. Fireman's Fund Ins. Co., 670 P.2d 453 (Colo. App. 1983).

This section applies where the wife makes a claim for compensation on account of the death of her husband, and not where she makes a claim for compensation on account of the death of a child. Employers' Mut. Ins. Co. v. Indus. Comm'n, 82 Colo. 281, 260 P. 106 (1927).

The dependency of a wife is determined as a matter of law where there is a showing that she was living with her husband at the time of his death and was dependent on him for support. McBride v. Indus. Comm'n, 97 Colo. 166, 49 P.2d 386 (1935), citing London Guarantee & Accident Co. v. Indus. Comm'n, 78 Colo. 478, 242 P. 680 (1925); Vaughn v. Indus. Comm'n, 79 Colo. 257, 245 P. 712 (1926).

Thus, a wife living with her husband as such is conclusively presumed to be wholly dependent upon him for her support. Employer's Mut. Ins. Co. v. Indus. Comm'n, 82 Colo. 281, 260 P. 106 (1927). See McBride v. Indus. Comm'n, 97 Colo. 166, 49 P.2d 386 (1935).

Presumptive dependency overcome by finding of nonsupport by deceased. Widow is "wholly" dependent under this section regardless of whether she receives all or only part of her support from the deceased, and the presumption afforded by the statute is overcome only by a finding that the widow receives no support from the deceased. Diamond Indus. v. Claimants in Death of Crouse, 41 Colo. App. 541, 589 P.2d 1383 (1978); Michalski v. Indus. Claim Appeals Office, 781 P.2d 183 (Colo. App. 1989).

Presumptive dependency overcome only by showing that the surviving spouse was voluntarily separated and living apart from the decedent or was not dependent on the decedent for support at the time of death. Exeter Drilling v. Colo. Indus. Claim, 801 P.2d 20 (Colo. App. 1990).

The party desiring to overcome the presumption has the burden of bringing forward the necessary proof. Colo. Fuel & Iron Co. v. Indus. Comm'n, 93 Colo. 188, 24 P.2d 1117 (1933).

But the presumption is overthrown only by the appearance of three specific elements. A wife is conclusively presumed, under the language of this section, to be wholly dependent, unless it shall be made to appear that she was (1) voluntarily separated and (2) living apart from her husband at the time of his death, and (3) was not dependent in whole or in part on him for support. This section is in the conjunctive, and all three of these elements must be made to appear before the conclusive presumption of dependency of the wife can be overthrown. Vaughn v. Indus. Comm'n, 79 Colo. 257, 245 P. 712 (1926); Latting v. Broadmoor Hotel, 105 Colo. 386, 98 P.2d 857 (1940); Empire Zinc Co. v. Indus. Comm'n, 71 Colo. 251, 206 P. 158 (1952).

Statutory presumption of dependency in subsection (1)(a) can be rebutted only by a showing that all three elements — voluntary separation, living apart, not dependent for support — exist in a particular case. Tilley v. Bill's Sinclair, 34 Colo. App. 141, 524 P.2d 314 (1974).

And mere prolonged separation does not overcome presumption. Although a separation is an unusually protracted one, the question of dependency does not turn on time or distance, but upon the nature and character of the absence and the intention of the parties respecting it. Intent is an important element in determining the nature of the absence. Empire Zinc Co. v. Indus. Comm'n, 71 Colo. 251, 206 P. 158 (1922); Latting v. Broadmoor Hotel, 105 Colo. 386, 98 P.2d 857 (1940).

An act of adultery on the part of the wife constitutes a voluntary separation from the husband. Indus. Comm'n v. Fanganiello, 72 Colo. 140, 209 P. 803 (1922).

Voluntary separation a question of fact. Whether a wife is voluntarily separated and living apart from her husband, within the meaning of this section, is a question of fact. Gold Mines Consol. v. Simmons, 107 Colo. 359, 112 P.2d 555 (1941).

Voluntary separation established by the fact that the couple was living apart and that the claimant filed a petition for dissolution of marriage prior to his wife's death. City of Aurora v. Corr, 689 P.2d 659 (Colo. App. 1984).

Estrangement and divorce of the parties may not be controlling in determining whether there was a voluntary separation under this section, but does have a bearing in construing the evidence. Gold Mines Consol. v. Simmons, 107 Colo. 359, 112 P.2d 555 (1941).

Where the parties to a divorce resume living together both before and after the formal entry of a divorce decree and hold themselves out to their family and neighbors as being husband and wife, the wife will be considered a widow under this section. Employers' Mut. Liab. Ins. Co. v. Indus. Comm'n, 145 Colo. 91, 357 P.2d 929 (1960).

Wife of employee married after injury held to be a dependent. Where an employee married more than a year after receiving accidental injuries in the course of his employment resulting in his death subsequently, it is held that the wife was a dependent within the meaning of this section. McBride v. Indus. Comm'n, 97 Colo. 166, 49 P.2d 386 (1935); State Comp. Ins. Fund v. Hartman, 99 Colo. 324, 64 P.2d 122 (1936).

Decedent's legal obligation to support wife establishes dependency. If a widow of a deceased workman demonstrates a need for support, then, under subsection (1)(a), the decedent's legal obligation to support his wife, whether or not that duty is being discharged, is sufficient to establish dependency. Tilley v. Bill's Sinclair, 34 Colo. App. 141, 524 P.2d 314 (1974); Black Mt. Spruce, Inc. v. Johnson, 670 P.2d 1241 (Colo. App. 1983).

Innocent claimant held to be spouse. An innocent claimant who would qualify as a spouse but for decedent's failure before his death to reduce an interlocutory decree dissolving a prior marriage to final judgment is entitled to spousal benefits. Williams v. Fireman's Fund Ins. Co., 670 P.2d 453 (Colo. App. 1983).

Common-law marriage entitles wife to benefits of section. Clayton Coal Co. v. Indus. Comm'n, 93 Colo. 145, 25 P.2d 170 (1933); Rocky Mt. Fuel Co. v. Reed, 110 Colo. 88, 130 P.2d 1049 (1942).

Evidence insufficient to establish common-law marriage. Zuzich v. Leyden Lignite Co., 120 Colo. 21, 206 P.2d 883 (1949); Employers' Mut. Liab. Ins. Co. v. Indus. Comm'n, 124 Colo. 68, 234 P.2d 901 (1951).

Finding on dependency will not be disturbed on review if supported by evidence. Indus. Comm'n v. Elkas, 73 Colo. 475, 216 P. 521 (1923); New Jersey Fid. & Plate Glass Ins. Co. v. Richey, 85 Colo. 376, 275 P. 937 (1929); Pub. Serv. Co. v. Indus. Comm'n, 89 Colo. 440, 3 P.2d 799 (1931); Indus. Comm'n v. Coop. Oil Co. 93 Colo. 192, 24 P.2d 753 (1933); Clarke v. Clarke, 95 Colo. 409, 36 P.2d 461 (1934).

III. MINOR CHILD AS DEPENDENT.

Children of deceased worker are entitled to death benefits as full-time students even though they were not 18 at the time of death. Western Gas v. Indus. Claim App. Office, 797 P.2d 823 (Colo. App. 1990).

The statutory presumption that a child is wholly dependent upon parent is based upon the legal obligation of a parent to support a child. Truitt v. Indus. Comm'n, 31 Colo. App. 166, 499 P.2d 621 (1972).

But adoption of decedent's children by decedent's parents terminates a decedent's obligation of support, and the statutory presumption that a child is wholly dependent upon a parent is not applicable. Truitt v. Indus. Comm'n, 31 Colo. App. 166, 499 P.2d 621 (1972).

Furthermore, this section does not hold that minor children must be wholly dependent upon only one of the parents. United States Nat'l Bank v. Indus. Comm'n, 128 Colo. 417, 262 P.2d 731 (1953).

More specifically, this section does not confine the conclusive presumption of dependency wholly on the father. In determining who is conclusively presumed to be wholly dependent it says, "Minor children of the deceased". United States Nat'l Bank v. Indus. Comm'n, 128 Colo. 417, 262 P.2d 731 (1953).

And where the provision is that the minor children are wholly dependent on the deceased, it means a deceased mother equally as much as a deceased father, and especially where the statute does not specifically provide that the minor children are wholly dependent on the father alone. United States Nat'l Bank v. Indus. Comm'n, 128 Colo. 417, 262 P.2d 731 (1953).

So that under this section, an employer, being within the terms of the statute, is required to insure its employees, including the mother of claimants, and therefore the insurer cannot escape liability to answer to her minor children for her death. United States Nat'l Bank v. Indus. Comm'n, 128 Colo. 417, 262 P.2d 731 (1953).

The insurer's liability is fixed as distinguished from measured liability to be determined upon questions of fact concerning the relationship of dependents. These fixed statutory payments are what may be regarded as the appropriate responsibility of an employer, and not what it actually takes to support a child. An employer cannot successfully argue about the responsibility under this conclusive presumption. The fixed liability and the fixed payments are not a substitute for the actual parents' support of their children. Prior to the enactment of workmen's compensation laws, an employer was subjected to actions for damages in such cases commensurate with the loss of the parents' support. United States Nat'l Bank v. Indus. Comm'n, 128 Colo. 417, 262 P.2d 731 (1953).

Stepchildren not legally adopted are precluded from being dependents for purposes of an award of death benefits. Tri-State Commodities, Inc. v. Stewart, 689 P.2d 712 (Colo. App. 1984).

A minor under 18 years of age cannot conclusively be presumed to be a dependent of a brother under the terms of this section. Central Sur. & Ins. Corp. v. Indus. Comm'n, 94 Colo. 341, 30 P.2d 253 (1934).