Opinion
W.C. No. 4-220-503
July 17, 1997
FINAL ORDER
The claimant, as widow of the deceased employee, seeks review of a final order of Administrative Law Judge Erickson (ALJ), which denied her claim for death benefits under § 8-42-116(1), C.R.S. (1996 Cum. Supp.). We affirm.
The essential facts are undisputed. The decedent suffered a compensable industrial injury on August 6, 1994. The decedent was burned over approximately thirty-six percent of his body, and sustained injuries to his upper extremities. Prior to reaching maximum medical improvement (MMI) for these injuries, the decedent died of gastric cancer on November 11, 1995. The cancer and resulting death were not proximately caused by the industrial injury.
Thereafter, the claimant filed a claim for death benefits under § 8-42-116. In support of the claim, she produced the report of one of the claimant's physicians, Dr. Powell, who opined that the "decedent's physical condition and limitations at the time of his death, as well as his age, education, and experience, would have prevented him from earning any wages from regular or continuous employment." The claimant also produced the report of Dr. Douglas Hemler, a Level II accredited physician, who opined that decedent had sustained a thirty-six percent whole person impairment under the American Medical Association Guides to the Evaluation of Permanent Impairment, Third Edition (Revised) (AMA Guides). This rating was based on impairment of the claimant's skin, "gate and station," and reduced range of motion in both upper extremities.
However, relying on Borquez v. John Burbank Trucking, 164 Colo. 217, 433 P.2d 767 (1967), the ALJ denied the claim for death benefits. The ALJ held that the claimant was not entitled to death benefits because the decedent died before any "determination" that he was entitled to permanent disability benefits. In so doing, the ALJ explicitly found that the decedent had not reached MMI for the industrial injuries at the time of his death.
On review, the claimant contends that the ALJ erred in his interpretation of § 8-42-116. Relying principally on Estate of Huey v. J.C. Trucking, Inc., 837 P.2d 1218 (Colo. 1992), the claimant argues that § 8-42-116 should not be interpreted to require the decedent to reach MMI in order for death benefits to be awarded to surviving dependents. We uphold the ALJ's order, although we do not agree with him that a "determination" or adjudication of permanent disability is a prerequisite to an award of death benefits. Instead, we conclude that the decedent must have reached MMI prior to death.
Section 8-42-116 provides as follows:
"(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.
In interpreting this provision, we apply the rule that words in a statute should be given their plain and ordinary meanings provided no absurdity results. Snyder Oil Co. v. Embree, 862 P.2d 259 (Colo. 1993). However, to the extent there is any ambiguity, we should interpret the statute so as to give consistent, harmonious and sensible effect to all its parts. Henderson v. RSI, Inc., 824 P.2d 91 (Colo.App. 1991).
Here, both subsection (a) and (b) of § 8-42-116 state that the industrial injury must have "proximately caused" permanent total or permanent partial disability in order for the claimant to receive a death benefit. The word "caused" is phrased in the past tense. Therefore, the plain and ordinary meaning of the statute is that the decedent must have sustained permanent total or permanent partial disability at the time of the death, or no death benefit is payable.
Moreover, as the respondents argue, permanent total disability and permanent partial disability cannot legally exist or "vest" until MMI. This is true because neither the degree or existence of medical impairment, nor an injured employee's ability to earn any wages, can be finally ascertained until the effects of the injury-related medical conditions have become stable and will not improve with further medical treatment. See § 8-40-201(11.5), C.R.S. (1996 Cum. Supp.); Golden Animal Hospital v. Horton, 897 P.2d 833 (Colo. 1995); Nunnally v. Wal-Mart Stores, Inc., ___ P.2d ___ (Colo.App. No. 96CA0509, October 24, 1996); Donald B. Murphy Contractors, Inc. v. Industrial Claim Appeals Office, 916 P.2d 611 (Colo.App. 1995).
It follows that the ALJ correctly applied § 8-42-116 in this case. The claimant does not dispute that the decedent never reached MMI. Therefore, the industrial injury never "proximately caused" permanent total disability or permanent partial disability within the meaning of the statute. Although the claimant presented evidence indicating that the decedent might have become permanently and totally disabled, or would have sustained permanent medical impairment, such questions could not be fully and finally resolved at the time of the decedent's death. Donald B. Murphy Contractors, Inc. v. Industrial Claim Appeals Office, supra.
The claimant argues that this interpretation of the statute creates a logical inconsistency because subsection (a) and (b) permit the payment of "unaccrued" permanent disability benefits. The claimant asserts that the term "unaccrued" necessarily refers to permanent disability benefits which have not vested due to the decedent's attainment of MMI.
However, in our view, the reference to "unaccrued" benefits refers to those permanent disability benefits which the deceased would have received had he continued to live, but which were not yet payable at the time of death. This interpretation is consistent with the position that the decedent must have attained MMI at the time of death so that his entitlement to future benefits is ascertainable by the ALJ.
Contrary to the claimant's argument, we are not persuaded that the Estate of Huey v. J.C. Trucking, Inc., supra, mandates a different result. First, the Huey court was called upon to interpret § 8-41-503(2), C.R.S. (1996 Cum. Supp.), not § 8-42-116(1). The Huey court held that the term "accrued and unpaid" compensation, as used in § 8-41-503(2), does not require an actual adjudication of a decedent's right to compensation in order for surviving dependents to receive "accrued and unpaid" benefits. In that case, the court emphasized that the "fortuity of the claimant's death from unrelated causes before final adjudication of his claim should not prevent the award of medical expenses and temporary total disability" benefits which accrued prior to death. 837 P.2d at 1221.
Here, we do not hold that § 8-42-116 requires an actual "adjudication" of a decedent's right to permanent total or permanent partial disability benefits in order for such benefits to be paid to a surviving dependent. We merely hold that the decedent must have reached MMI so that the existence and extent of such benefits is ascertainable. To hold otherwise would permit varying degrees of speculation concerning the extent of the decedent's permanent disability had he lived. Unlike the situation in Huey, this holding does not condition a dependent's right o benefits on the "vagaries of the workers' compensation adjudication process."
Moreover, we agree with the ALJ that Borquez v. John Burbank Trucking, supra, is the case most directly on point because it specifically addresses the predecessor to § 8-42-116. Although we recognize that Borquez was criticized by the Huey court, we understand that criticism to have been directed at that portion of Borquez which conditions death benefits on the existence of an "award" or adjudication of permanent disability benefits during the decedent's lifetime. However, putting the "award" issue aside, the Borquez court emphasized that § 8-42-116 is not intended to compensate dependents for losses unrelated to the industrial injury, but instead focuses on "unpaid installments of compensation that may become due and payable to the employee during his lifetime."
Here, as in Borquez, no permanent total or permanent partial disability benefits became due and payable to the decedent during his lifetime, or could have been paid. Cf. Nunnally v. Wal-Mart Stores, Inc., supra. Therefore, the claimant, as the decedent's dependent, should not be permitted to utilize § 8-42-116 as grounds for receiving benefits which the decedent himself could not have claimed or been entitled to receive at the time of his death.
IT IS THEREFORE ORDERED that the ALJ's order dated December 17, 1996, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Bill WhitacreNOTICE This Order is final unless an action to modify or vacate the Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, Colorado 80203, by filing a petition to review with the court, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date the Order was mailed, pursuant to §§ 8-43-301(10) and 307, C. R. S. (1996 Cum. Supp.).
Copies of this decision were mailed July 17, 1997 to the following parties:
Diane Singleton, 3315 Sylvester Road, Lot 50, Albany, GA 31705
Kenya Corporation, RR1, Box 39, Cedar Point, KS 66843-9710
Colorado Compensation Insurance Authority, Brandee DeFalco-Galvin, Esq., (Interagency mail).
Bruce Edwards, Esq., 801 Madison Ave., P.O. Box 248, Douglas, GA 31533, (For the Claimant).
Raymond F. Callahan, Esq., 3464 S. Willow St., Denver, CO 80231-4566, (For the Respondents).
William E. Myrick, Esq. David Hollar, Esq., 1045 Lincoln St., Ste. 200, Denver, CO 80203-2734, (For the Claimant).
By: ________________________________