Opinion
W.C. No. 4-275-525
November 24, 2003
FINAL ORDER
Lisa and Johnny Drummond petition for review of a Corrected Order of Administrative Law Judge Friend (ALJ) which reapportioned death benefits. Thomas and Jody Drummond appeal the order insofar as the ALJ found that his reapportionment would be fair if there are subsequent changes in the claimants' status. We dismiss the petition review by Thomas and Jody Drummond without prejudice and otherwise affirm the ALJ's order.
The deceased died in 1995 from injuries arising out of his employment. The decedent was survived by 5 wholly dependent persons, including his wife, Lisa Drummond, and two children of that marriage named Johnny and Connor Drummond. The deceased was also survived by two children from a previous marriage named Jody and Thomas Drummond.
In a previous order ALJ Rumler apportioned the applicable death benefits as follows. Twelve percent to Jody Drummond, 12 percent to Thomas Drummond, 25 percent to Connor Drummond, 25 percent to Johnny Drummond and 26 percent to Lisa Drummond. In support, ALJ Rumler found that Thomas and Jody received Social Security benefits in an amount greater than court ordered child support from the deceased. ALJ Rumler also found that the children of the surviving spouse were more dependent on the deceased at the time of his death, due in part to the special medical needs of Connor Drummond. No appeal was taken from that order.
The minor child, Connor Drummond died in August 1999. The family of Lisa Drummond then petitioned to reopen the claim for redistribution of Connor Drummond's death benefits. On March 11, 2003, Thomas Drummond reached age 18 years.
The ALJ found that as of his 18th birthday, Thomas Drummond had completed the requirements for a high school diploma and was in transition between high school and college. The ALJ further found that Thomas intended to enroll as a full-time student at an accredited school in the fall of 2003. Under these circumstances, the ALJ determined Thomas continued to qualify as a wholly dependent person of the deceased. (Finding of Fact 11).
Insofar as pertinent, the ALJ ordered that effective January 1, 2003, the death benefits should be increased in the same proportion as ALJ Rumler's apportionment. Therefore, the ALJ reapportioned the death benefit award as follows: 35 percent to Lisa Drummond, 33 percent to Johnny Drummond, 16 percent to Thomas Drummond and 16 percent to Jody Drummond. Further, the ALJ ordered that the reduction of benefits due on account of the lump sum award previously paid to Lisa Drummond and her children, be divided equally between the members of the Lisa Drummond family.
I.
Lisa and Johnny Drummond contend the ALJ misapplied the law in failing to terminate death benefits to Thomas Drummond effective March 12, 2003. We disagree.
Section 8-42-120 C.R.S. 2003, provides in pertinent part that death benefits shall terminate upon "when a child or brother or sister of the deceased reaches the age of eighteen years, except as otherwise provided in sections 8-41-501(1)(b) and (1)(c) and 8-41-502."
Section 8-41-501(1)(c), C.R.S. 2003, states that persons considered wholly dependent on the deceased include, children of the deceased between age 18 and 21 if it 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."
As argued by these petitioners, a dependent's unemployment or dependency on the surviving parent is not grounds for an extension of benefits under § 8-41-501(1)(c). Therefore, the ALJ's findings that Thomas Drummond was unemployed and living with his mother does not support the extension of benefits. (Conclusion of Law 14).
However, we reject the petitioners' contention that § 8-41-501(1)(c) is not applicable unless the child is actually attending an accredited school as a "full-time" student at the time of the order. In Western Gas Processing Company v. Industrial Claim Appeals Office, 797 P.2d 823 (Colo.App. 1990), the court upheld an order which granted a prospective request to extend death benefits to two wholly dependent minor children under the age of eighteen years in the event the children should engage in courses of study as full-time students between the ages of 18 and 21. In so doing, the court rejected an argument that the General Assembly intended to deny dependent benefits to wholly dependent children who were under the age of 18 at the time of the decedent's death but intended to attend school after age 18. Indeed, the court held that a contrary interpretation would undermine the purpose of the Act which is to relieve the adverse economic effects cause by work-related injuries. Ibid at 825.
Here, the ALJ found that Thomas Drummond was a part-time high school student when he attained the age of 18 and had completed the requirements for graduation ahead of his classmates but had not yet received his high school diploma. The ALJ also noted that realistically a "full-time" student is not a continuous 12 month occupation because most students take time off in the summer.
The hearing transcript concerning the educational plans of Thomas Drummond contains several inaudible sections. (Tr. p. 19). However, it is undisputed the Hearing Exhibits of Lisa and Johnny Drummond were part of the evidentiary record before the ALJ. ( See Lisa and Johnny Drummond Opening Brief, page 4, paragraph 3). Hearing Exhibit 16 states that Thomas Drummond intends to attend classes at the Aims Community College in Greeley or the WyoTech in Wyoming State University to complete a two-year automotive technology program. Based upon this evidence the ALJ reasonably inferred that Thomas Drummond planned to be a full-time student at an accredited school commencing the first fall quarter after he graduated from high school.
In contrast, the petitioners' analysis would penalize Thomas Drummond for completing his high school graduation requirements early and the consequent gap in time between his 18th birthday and his eligibility for enrollment at a post-secondary educational program. We are persuaded by the holding in Western Gas Processing Company, v. Industrial Claim Appeals Office, supra, that the petitioners' argument creates a hyper technical obstacle to the receipt of death benefits which is inconsistent with the legislative purpose of the Act. Therefore, we reject the petitioners' construction.
Furthermore, the ALJ's findings support the order of ongoing death benefits to Thomas Drummond. However, we note the ALJ preserved the petitioners' right to petition to reopen the claim to recover benefits paid to Thomas Drummond in the event Thomas does not enroll in an accredited post-secondary educational program. Therefore, we do not consider the petitioners' contention that the ALJ's order barred their recovery of overpaid benefits should Thomas no longer be a student.
II.
Lisa and Johnny Drummond also contest the ALJ's order which apportioned Connor Drummond's share of the lump sum award reduction, while apportioning part of Connor Drummond's death benefits to Jody Drummond and Thomas Drummond. We perceive no basis to disturb the ALJ's order.
Section 8-42-121, C.R.S. 2003, allows the ALJ to apportion death benefits between dependents in a manner which he deems "just and equitable." The statute does not require that all persons presumed to be wholly dependent under § 8-41-501, be treated on an equal basis. Spoo v. Spoo, 141 Colo. 268, 358 P.2d 870 (Colo. 1971). Rather, a just and equitable distribution will depend upon the facts of each case, and the ALJ may consider the "actual dependence" of the claimants as well as the relative incomes and circumstances of the claimants. Spoo v. Spoo, 145 Colo. 268, 358 P.2d 870 (1961).
These petitioners cite no authority and we are unable to find any statutory authority for their contention that all offsets against death benefits must be apportioned in the same ratio as the apportionment of death benefits. Rather, the existence of applicable offsets is one factor to be considered in determining an equitable distribution of benefits. See Spoo v. Spoo, supra.
The standard for review of an ALJ's apportionment of death benefits is abuse of discretion. Spoo v. Spoo, supra. Consequently, we may not interfere with the ALJ's order unless it is beyond the bounds of reason, as where it is unsupported by the evidence or contrary to law. Rosenberg v. Board of Education of School District No. 1, 710 P.2d 1095 (Colo. 1985).
The ALJ found that the Lisa Drummond family was awarded a lump sum payment of death benefits in the amount of $28,545.60, and as a consequence, the family's periodic death benefit was reduced by $25.31 per week. Neither Jody nor Thomas Drummond requested a lump sum payment. Because the Lisa Drummond family realized the benefit of the lump sum award, we cannot say the ALJ abused his discretion in ordering that the surviving members of the Lisa Drummond family should bear the remaining reduction of benefits attributable to Connor Drummond's proportional share of the lump sum award.
III.
For their part, Jody and Thomas Drummond contest the ALJ's finding that the apportionment of death benefits he ordered effective January 1, 2003, "will fairly and equitably" redistribute benefits "in the future, as individuals are no longer eligible for benefits." (Conclusion of Law 12). These petitioners contend the ALJ's determination is an abuse of discretion insofar the ALJ purported to speculate on an equitable redistribution of benefits due to future changes. We conclude this portion of the ALJ's order is not currently subject to review.
Section 8-43-301(2), C.R.S. 2003, provides that a party dissatisfied with an order "which requires any party to pay a penalty or benefits or denies a claimant a benefit or penalty," may file a petition to review. Orders which do not require the payment of benefits or penalties, or deny the claimant benefits or penalties are interlocutory and not subject to review. Natkin Co. v. Eubanks, 775 P.2d 88 (Colo.App. 1989).
The ALJ's factual determination in Conclusion of Law 12 does not award or deny any specific benefit or penalty within the meaning of § 8-42-301(2). Therefore, the contested portion of the ALJ's order is interlocutory and not currently reviewable. Director of Division of Labor v. Smith, 725 P.2d 1161 (Colo.App. 1986).
IT IS THEREFORE ORDERED that the ALJ's Corrected Order dated June 20, 2003, is affirmed.
IT IS FURTHER ORDERED that the petition of Thomas and Jody Drummond for review of the June 20 order is dismissed without prejudice.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ Kathy E. Dean
______________________________ Robert M. Socolofsky
NOTICE
This Order is final unless an action to modify or vacate this Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO 80203, by filing a petition for review with the Court, within twenty (20) days after the date this Order is mailed, pursuant to § 8-43-301(10) and § 8-43-307, C.R.S. 2003. The appealing party must serve a copy of the petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe, Tower 3, Suite 350, Denver, CO 80202.
Copies of this order were mailed to the parties at the addresses shown below on November 24, 2003 by A. Hurtado.
Lisa and Johnny Drummond, 6508 Nova Dr., Littleton, CO 80123
Thomas and Jody Drummond, 2917 W. 12th St., Greeley, CO 80631
City of Littleton, 2255 W. Berry Ave., Littleton, CO 80165
Legal Department, Pinnacol Assurance — Interagency Mail
Joseph M. Goldhammer, Esq., 1563 Gaylord St., Denver, CO 80206 (For Claimants Lisa and Johnny Drummond)
Regina M. Walsh Adams, Esq., 7251 W. 20th St., #G-1, Greeley, CO 80634 (For Claimants Thomas and Jody Drummond)
Merrily S. Archer, Esq., 1625 Broadway, #2300, Denver, CO 80202 (For Respondents)