Colorado § 8-42-116 - When death not proximate result - benefits.

§ 8-42-116. When death not proximate result - benefits.

(1) If death occurs to an injured employee, other than as a proximate result of any injury, before disability indemnity ceases and the deceased leaves persons wholly dependent upon the deceased for support, death benefits shall be as follows:

(a) Where the injury proximately caused permanent total disability, the death benefit shall consist of the unpaid and unaccrued portion of the permanent total disability benefit which the employee would have received had the employee lived until receiving compensation at the employee's regular rate for a period of six years.

(b) Where the injury proximately caused permanent partial disability, the death benefit shall consist of the unpaid and unaccrued portion of the permanent partial disability benefit which the employee would have received had he lived.

Source: L. 90: Entire article R&RE, p. 496, § 1, effective July 1.

Editor's note: This section is similar to former § 8-50-112 as it existed prior to 1990.

ANNOTATION

Annotator's note. Since § 8-42-116 is similar to § 8-50-112 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.

A computation of death benefits without regard to statutory maximums and credits would result in a larger death benefit award to a disabled employee who dies of causes unrelated to a work-connected injury than the benefit conferred on an employee whose death results from his work-connected, disabling injury. Such results contravene the mandate of statutory construction which we must follow requiring us to read together all portions of the workmen's compensation act and to harmonize them if possible. Schenfeld v. Shaffer, 29 Colo. App. 425, 487 P.2d 818 (1971).

Thus, a literal application of subsection (1)(b) yields a computed amount which is only a preliminary figure, subject to further modification by virtue of the statutory maximum limitation and which is reducible by the mandatory credits imposed by § 8-50-103 if all such credits have not been previously deducted. From this amount § 8-50-103 directs that there shall be deducted any sums paid to the employee prior to his death as compensation for his disability under the provisions of the workmen's compensation act. Schenfeld v. Shaffer, 29 Colo. App. 425, 487 P.2d 818 (1971).

This section does not prohibit the posthumous proof that an industrial injury caused a deceased employee to suffer a permanent disability when the employee dies of unrelated causes before reaching maximum medical improvement. Singleton v. Kenya Corp., 961 P.2d 571 (Colo. App. 1998).

For purposes of this section, there is no distinction between permanent disability benefits and permanent medical impairment benefits and, therefore, no right of compensation based upon the statute's reference to permanent disability benefits without any accompanying mention of permanent medical impairment benefits. Cooper v. Indus. Claim Appeals Office, 109 P.3d 1056 (Colo. App. 2005).

This section does not apply where the widow is a nonresident of the United States. Colo. Fuel & Iron Co. v. Indus. Comm'n, 93 Colo. 188, 24 P.2d 1117 (1933).

Where decedent's death was not proximately related to the injury for which decedent was receiving permanent disability payments, the duration of benefit payments receivable by decedent's dependent is limited to six years from the date decedent began receiving payments. Winters v. Indus. Claim Appeals Office, 819 P.2d 542 (Colo. App. 1991).

When an industrial injury is not the proximate cause of the death, an award of death benefits that is based on the amount of unpaid permanent disability benefits can be made only where there are dependents; therefore, the estate of the deceased is not entitled to benefits. Cooper v. Indus. Claim Appeals Office, 109 P.3d 1056 (Colo. App. 2005).

The amount of the death benefit payable under this section is not subject to an offset for social security disability insurance payments that terminate upon the disabled worker's death. The applicable "regular rate" is the rate of total permanent disability benefits without regard for the SSDI offset. Metro Glass & Glazing, Inc. v. Orona, 868 P.2d 1178 (Colo. App. 1994).

A lump sum permanent disability payment made to an employee prior to the death of the employee that becomes part of the decedent's estate is not an overpayment and does not have to be repaid. Cooper v. Indus. Claim Appeals Office, 109 P.3d 1056 (Colo. App. 2005).

Applied in Employers' Mut. Ins. Co. v. Indus. Comm'n, 89 Colo. 475, 3 P.2d 1079 (1931).