Colorado § 8-41-503 - Dependency and extent determined - how.

§ 8-41-503. Dependency and extent determined - how.

(1) Dependents and the extent of their dependency shall be determined as of the date of the injury to the injured employee, and the right to death benefits shall become fixed as of said date irrespective of any subsequent change in conditions except as provided in section 8-41-501 (1)(c). Death benefits shall be directly payable to the dependents entitled thereto or to such person legally entitled thereto as the director may designate.

(2) In case an employee or claimant entitled to compensation dies leaving dependents, any accrued and unpaid portion of the compensation or benefits up to the time of the death of such employee or claimant shall be paid to such dependents as may be ordered by the director and not to the legal representative as such of said decedent. In case the injured employee or claimant leaves no dependents, the director may order the application of any accrued and unpaid benefits up to the time of the death of such employee or claimant paid upon the expenses of the last sickness or funeral of such decedent, the preference in such payment to be to funeral expenses.

(3) In case an injured employee or dependent of a deceased employee entitled to benefits under articles 40 to 47 of this title is declared incompetent or insane, any benefits accrued or to accrue may be paid to the conservator of the estate, if any, or to any dependents, or to the party or institution having custody of the person of such injured employee or dependent of a deceased employee as may be ordered by the director in the director's discretion.

Source: L. 90: Entire article R&RE, p. 484, § 1, effective July 1. L. 91: (1) amended, p. 1351, § 2, effective May 29.

Editor's note: This section is similar to former § 8-50-105 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).

Purpose of section. The purpose of the workmen's compensation act is to cast upon the particular industry the burden resulting from accidental injuries sustained by its employees while performing duties arising out of and in the course of their employment. It is not intended to compensate employees for injuries or illness not due to their employment, or to pay benefits to their dependents when death results from such injuries or illness; or to pay the medical, hospital, funeral, or other expenses incurred by reason of such injuries, illness, or death. In such case, however, it is not unreasonable to pay to such dependents, or, where there are no dependents, to pay on account of such expenses, any unpaid installments of compensation that may have become due and payable to the employee during his lifetime, under a disability award made during his lifetime. That is the purpose of this section. Employers' Mut. Ins. Co. v. Indus. Comm'n, 89 Colo. 475, 3 P.2d 1079 (1931).

The survival statute is applicable to claims filed under the Workers' Compensation Act. The conditions of recovery under the Act were fulfilled on the date that the injury was incurred and are dependent only on whether claimant's claim is timely filed. Claimant's death by unrelated causes prior to final adjudication has no effect on the claim. Estate of Huey v. J.C. Trucking, 837 P.2d 1218 (Colo. 1992).

This section deals with the fact of dependency and not with the amount of compensation to be paid. Colo. Fuel & Iron Co. v. Indus. Comm'n, 93 Colo. 188, 24 P.2d 1117 (1933).

Fact of dependency cannot be based on legal duty to support. Under this section and §§ 8-50-102 and 8-50-104 of this article 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. Colo. Fuel & Iron Co. v. Indus. Comm'n, 90 Colo. 330, 9 P.2d 285 (1932); Subsequent Injury Fund v. Indus. Claim Appeals Office, 131 P.3d 1224 (Colo. App. 2006).

Innocent party in prohibited marriage. While it is true that a marriage entered into prior to the dissolution of a previous marriage is prohibited in Colorado, an innocent party to such a marriage is not deprived of the rights conferred upon a legal spouse. As a putative spouse, upon the other person's death, she acquires the legal spouse's right to workmen's compensation. Williams v. Fireman's Fund Ins. Co., 670 P.2d 453 (Colo. App. 1983).

Mother a partial dependent of deceased employee son at time of his death. Indus. Comm'n v. DiNardi, 103 Colo. 591, 87 P.2d 494 (1939).

This section does not fix all dependencies as of the time of the accident. Section 8-50-102 fixes the condition upon which certain persons are to be considered dependent. It determines their dependency as of the time of employee's death, and does so, regardless of the time of the accident. It then follows that § 8-50-102 is in conflict with this section, if this section is to be construed as fixing all dependencies as of the time of the accident. We do not so construe it. Injury and death are not always coincident. This being true, conditions constituting dependency may change during the intervening period, as is often the case, and it must follow, that the extent of the right to death benefits cannot always be fixed as of the date of the accident. McBride v. Indus. Comm'n, 97 Colo. 166, 49 P.2d 386 (1935).

And the wording of this section presupposes a question to be determined. That question is "who" and "the extent". Sections 8-50-101 and 8-50-102 leave no question to be determined. Dependency and extent are fixed as a matter of law. "For all purposes of the act" the general assembly said the wife is conclusively presumed to be wholly dependent on the husband if living with him at the time of his injury or his death. Had the general assembly intended to exclude a post-injury wife, words were just as available then as now, to so specifically state. McBride v. Indus. Comm'n, 97 Colo. 166, 49 P.2d 386 (1935).

Amount of death benefits should be fixed as of the date of death, not the date of injury. Richards v. Richards & Richards, 664 P.2d 254 (Colo. App. 1983).

The final clause in the first sentence of subsection (1) refers not to the amount of death benefits to be paid, rather it refers to a dependent's right to death benefits which is fixed as of the date of the injury regardless of any subsequent change in that dependent's status. Richards v. Richards & Richards, 664 P.2d 254 (Colo. App. 1983).

Payment of balance of partial disability award after death of employee. If, at the time of the employee's death, there was an unpaid balance of the temporary partial disability award made prior thereto, that had become due and payable to the employee in his lifetime, such balance was "accrued and unpaid" within the meaning of this section, and was applicable to payment upon the expenses of the last sickness or funeral. Employers' Mut. Ins. Co. v. Indus. Comm'n, 89 Colo. 475, 3 P.2d 1079 (1931).

Authority to discharge expenses is permissive. This section is merely a grant of authority to discharge expenses of last sickness and funeral from accrued and unpaid benefits instead of paying the total to the personal representative. Moreover, the word is "may" not "shall", hence, that authority is apparently permissive not mandatory. Moffat Coal Co. v. Hilliard, 117 Colo. 556, 190 P.2d 907 (1948).

Employee's estate may collect accrued payments. Were an insurance company had been paying compensation to employee for disability, and said employee returns to his native country of Greece, residing there until its occupation by an enemy during which time he died, even though payments were authorized to be suspended during occupation, the deceased employee's estate may now collect accrued payments. Moffat Coal Co. v. Hilliard, 117 Colo. 556, 190 P.2d 907 (1948).

"Irrespective of any subsequent change in conditions" refers only to dependents. McBride v. Indus. Comm'n, 97 Colo. 166, 49 P.2d 386 (1935).

But a child is entitled to compensation even though adopted since father's death. Employers' Mut. Ins. Co. v. Indus. Comm'n, 70 Colo. 229, 199 P. 483 (1921).

Phrase "irrespective of any subsequent change in conditions" is evidence of the general assembly's intent that death benefit awards, once fixed, should not be reopened because of later changes in a beneficiary's economic condition. Ward v. Ward, 928 P.2d 739 (Colo. App. 1996).

The word "accrued" in this section is used in the sense of due and payable. Employers' Mut. Ins. Co. v. Indus. Comm'n, 89 Colo. 475, 3 P.2d 1079 (1931).

"Accrue" means "to come into existence as an enforceable claim: vest as a right." Permanent partial disability benefits do not come into existence as an enforceable claim or vest as a right until maximum medical improvement is reached. Dependents of Nunnally v. Wal-Mart Stores, Inc., 943 P.2d 26 (Colo. App. 1996).

The term "accrued" as used in subsection (2) means "to come into existence as an enforceable claim: vest as a right." Singleton v. Kenya Corp., 961 P.2d 571 (Colo. App. 1998).

"Accrued and unpaid", as used in subsection (2), means "due and payable". Therefore, workers' compensation benefits that accrued prior to claimant's death but were not awarded by an administrative law judge until after his death could not be awarded to his estate. Estate of Huey v. J.C. Trucking Co., 824 P.2d 89 (Colo. App. 1991).

And the work "benefits" means compensation. As used in this section the word "benefits" is construed to mean compensation. "Compensation" is awarded to an employee; "benefits" are awarded to his dependents. Employers' Mut. Ins. Co. v. Indus. Comm'n, 89 Colo. 475, 3 P.2d 1079 (1931).

Applied in Frontier Airlines v. Indus. Comm'n, 654 P.2d 1333 (Colo. App. 1982); Byrd v. Indus. Comm'n, 658 P.2d 274 (Colo. App. 1982); Dziewior v. Michigan Gen. Corp., 672 P.2d 1026 (Colo. App. 1983).