Colorado § 8-42-119 - Partial dependents - compensation.

§ 8-42-119. Partial dependents - compensation.

Partial dependents shall be entitled to receive only that portion of the benefits provided for those wholly dependent which the average amount of the wages regularly contributed by the deceased to such partial dependents at and for a reasonable time immediately prior to the injury bore to the total income of the dependents during the same time. The director has power and discretion to determine the proper elements to be considered as income of said dependents in each particular case. Where there are persons both wholly dependent and partially dependent, only those wholly dependent shall be entitled to compensation.

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

Editor's note: This section is similar to former § 8-50-104 as it existed prior to 1990.

ANNOTATION

Annotator's note. Since § 8-42-119 is similar to § 8-50-104 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.

Employer and the state compensation insurance fund were without standing to raise the constitutionality of this section as violative of the equal protection clause of the fourteenth amendment, as such challenges may only be leveled by members of the group whose rights are impaired by the contested legislation. Am. Metal Climax, Inc. v. Claimant of Butler, 188 Colo. 116, 532 P.2d 951 (1975).

Minor children presumed "wholly" dependent. Under the clear statutory language of this section, minor children are presumed "wholly" dependent, and the presumption may be overcome only by evidence showing that the children received no support from the deceased. Knight v. Dept. of Natural Res., 689 P.2d 733 (Colo. App. 1984).

Partially dependent claimants are not entitled to receive compensation during the time that a wholly dependent claimant is entitled thereto. Central Sur. & Ins. Corp. v. Indus. Comm'n, 94 Colo. 341, 30 P.2d 253 (1934).

But where payment of compensation to those wholly dependent upon an employee is discontinued for statutory reasons, partial dependents are entitled to receive compensation to the extent of the determined percentage of the balance only, due under the original award. Central Sur. & Ins. Corp. v. Indus. Comm'n, 94 Colo. 341, 30 P.2d 253 (1934).

Presumed whole dependency has no priority over actual whole dependency. Central Sur. & Ins. Corp. v. Indus. Comm'n, 94 Colo. 341, 30 P.2d 253 (1934); L.B. Cole Produce Co. v. Indus. Comm'n, 123 Colo. 278, 228 P.2d 808 (1951).

Evidence supporting findings of whole dependency on son. In a proceeding for compensation where claimant alleged that decedent, her son, had never married, finding that claimant was wholly dependent on son and that he was killed in course of employment and not in violation of a safety rule were supported by competent evidence. L.B. Cole Produce Co. v. Indus. Comm'n, 123 Colo. 278, 228 P.2d 808 (1951).

Social security payments used in determining amount of benefits due. Where social security payments constitute substantial and regular income to claimants, such payments are properly considered as source of income in determining amount of benefits due claimants under statute. Truitt v. Indus. Comm'n, 31 Colo. App. 166, 499 P.2d 621 (1972).

Under this section the question of dependency is to be determined as a matter of fact, and cannot be based on an existing legal duty to provide support. Colo. Fuel & Iron Co. v. Indus. Comm'n, 90 Colo. 330, 9 P.2d 285 (1932).

But error to dismiss claim despite no detailed findings of fact. If the findings are sufficient to support award on the question of partial dependency, it is error for the trial court to dismiss the claim on the ground that the action was without and in excess of statutory powers, notwithstanding no detailed findings of fact as to partial dependency were made. Indus. Comm'n v. Calumet Fuel Co., 108 Colo. 133, 114 P.2d 297 (1941).

Applied in Employers' Mut. Ins. Co. v. Indus. Comm'n, 82 Colo. 281, 260 P. 106 (1927); Diamond Indus. v. Claimants in Death of Crouse, 41 Colo. App. 541, 589 P.2d 1383 (1978).