Colorado § 8-41-502 - Other dependents - temporary dependency.

§ 8-41-502. Other dependents - temporary dependency.

Except as otherwise provided in section 8-41-501 (1)(c), a child eighteen years of age or over and a mother, father, grandmother, grandfather, sister, brother, or grandchild who was wholly or partially supported by the deceased employee at the time of death and for a reasonable period of time immediately prior thereto is considered an actual dependent. To be entitled to compensation, such dependents, except as provided in section 8-41-501 (1)(c), must prove that they were incapable of or actually disabled from earning their own living. If said incapacity or disability is temporary only, compensation shall be paid only during the period of such temporary incapacity or disability.

Source: L. 90: Entire article R&RE, p. 484, § 1, effective July 1.

Editor's note: This section is similar to former § 8-50-102 as it existed prior to 1990.

ANNOTATION

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

This section fixes the condition upon which certain persons are to be considered dependent. McBride v. Indus. Comm'n, 97 Colo. 166, 49 P.2d 386 (1935).

And each case depends on its facts. Failure of an employee, after contributing to the support of his sister, to so contribute for a short time prior to his death, caused by accident, would not negative her dependency. Dependency must rest upon the prevailing facts and conditions of each particular case. Empire Zinc Co. v. Indus. Comm'n, 102 Colo. 26, 77 P.2d 130 (1938); Regal Coal Co. v. Jackvich, 105 Colo. 479, 99 P.2d 196 (1940).

Under this section the question of dependency is to be determined as a matter of fact and cannot be based upon an existing legal duty to provide support. Tilley v. Bill's Sinclair, 34 Colo. App. 141, 524 P.2d 314 (1974).

No presumption as to dependency. Claimant in a workmen's compensation case, being a sister of deceased employee, there was no presumption of dependency, and the burden was upon her to establish such dependency as would bring her within the provisions of the workmen's compensation act. Empire Zinc Co. v. Indus. Comm'n, 102 Colo. 26, 77 P.2d 130 (1938).

Financial contributions by an employee to the support of a sister is evidence of recognition of her dependency upon him. Empire Zinc Co. v. Indus. Comm'n, 102 Colo. 26, 77 P.2d 130 (1938).

But dependency can exist without any actual money payment where that payment might have been prevented by some cause operating against the will of the employee. Empire Zinc Co. v. Indus. Comm'n, 102 Colo. 26, 77 P.2d 130 (1938).

Mother not precluded from recovery because living with husband. The fact that a mother, at the time of the death of her employee son, was living with her husband who was able and bound to support her, does not preclude an award to her as a partial dependent of the deceased son and the same rule applies to brothers under 18 years of age and who claim compensation for the death of their brother. Employers' Mut. Ins. Co. v. Indus. Comm'n, 82 Colo. 281, 260 P. 106 (1927); Indus. Comm'n v. DiNardi, 103 Colo. 591, 87 P.2d 494 (1939).

And partially dependent minor not required to show his inability to earn his own living. Under this section a minor, partially dependent upon a brother who has sustained an accident arising out of and in the course of his employment, is not required to establish he was unable to earn his own living during the period involved in order to be entitled to compensation as a dependent. Indus. Comm'n v. DiNardi, 103 Colo. 591, 87 P.2d 494 (1939).

Entire or partial support is necessary for recovery as a dependent. The father of an employee to be dependent under this section must have been wholly or partially supported by the son at the time of his death and for a reasonable period of time immediately prior thereto. Indus. Comm'n v. Ahel, 80 Colo. 128, 249 P. 866 (1926).

The question of what is "a reasonable period of time" is one of fact which will not ordinarily be disturbed on review. Indus. Comm'n v. Ahel, 80 Colo. 128, 249 P. 866 (1926).

Findings on conflicting evidence will not be disturbed on review. Passini v. Indus. Comm'n, 64 Colo. 349, 171 P. 369 (1918); Indus. Comm'n v. Johnson, 66 Colo. 292, 181 P. 977 (1919); McPhee & McGinnity Co. v. Indus. Comm'n, 67 Colo. 86, 185 P. 268 (1919); Youngquist v. Indus. Comm'n 67 Colo. 187, 184 P. 381 (1919); Crawford v. Indus. Comm'n, 72 Colo. 581, 212 P. 828 (1923).

Thus, no review of finding on evidence that father was not incapable. The ground upon which the claimant was denied the compensation was that the father was not shown to be "incapable of or actually disabled from earning his own living", as provided in this section. The district court had no power and the supreme court has no power to review this finding upon the evidence. Picardi v. Indus. Comm'n, 70 Colo. 266, 199 P. 420 (1921).

The word "incapable" as employed in this section has a common and generally accepted meaning. Colo. Fuel & Iron Corp. v. Indus. Comm'n, 152 Colo. 256, 381 P.2d 267 (1963).

And no definition of the word "incapable" would justify the conclusion as a matter of law that a person over the age of 18 years is incapable of earning his living because he has voluntarily removed himself from the labor market and elected to go to college. Colo. Fuel & Iron Corp. v. Indus. Comm'n, 152 Colo. 256, 381 P.2d 267 (1963).

Applied in Byrd v. Indus. Comm'n, 658 P.2d 274 (Colo. App. 1982).