Opinion
Nov. 16, 1971
Editorial Note:
This case has been marked 'not for publication' by the court.
Alious Rockett, Francis L. Bury, Denver, for petitioners.
Duke W. Dunbar, Atty. Gen., John P. Moore, Deputy Atty. Gen., Peter L. Dye, Asst. Atty. Gen., Denver, for respondent The Industrial Comm.
PIERCE, Judge.
This a workmen's compensation case arising from a fatal accident occurring in July 1966, while Jeffrey N. Hughes was in the course of his employment. The claimant, Hughes' mother, filed a claim for compensation which was held in abeyance while she pursued an action against a third party for the death of her son. The third-party action was settled and the claimant mother withdrew her claim for benefits under the Workmen's Compensation Act. Thereafter, the Director of the Department of Labor and Employment requested the State Compensation Insurance Fund, the respondent insurer, to file a special admission of liability for payment into the Subsequent Injury Fund under the provisions of C.R.S.1963, 81--12--7(1)(b). This statute provides, in part,
'* * * For every compensable injury resulting in death Wherein there are no persons either wholly or partially dependent upon the deceased, the employer, or his insurance carrier, if any, shall pay to the industrial commission of Colorado the sum of six thousand two hundred and fifty dollars, * * * into the 'subsequent injury fund. " (Emphasis supplied)
The matter was thereafter set for hearing before a referee. The referee found that the claimant was in fact partially dependent upon the deceased and would have been entitled to the 20% Death benefits had she not withdrawn her claim. The referee also ordered the employer's insurance carrier to pay $6,250 into the Subsequent Injury Fund. The Industrial Commission affirmed the determination of the referee and the Commission's order is here on appeal.
The statute referred to was improperly applied to the facts before us. The statute requires payment into the fund only where there are no dependents. The Commission contends, however, that even though the word 'dependent' in the quoted language was not modified by the word 'compensated,' it was the clear intent of the legislature that payment into the found must be conditioned upon nonpayment of death benefits, not merely upon the nonexistence of dependents, paid or unpaid. We disagree.
The language of C.R.S.1963, 81--12--7(1)(b) is plain, clear, and unambiguous that payment is required only when there are no dependents. We find nothing in the wording of this portion of the statute requiring any alternative interpretation or construction beyond its plain meaning. See Industrial Commission v. Lindvay, 94 Colo. 531, 31 P.2d 495.
The order of the Industrial Commission requiring the respondent insurer to pay $6,250 into the Subsequent Injury Fund is hereby set aside.
SILVERSTEIN, C.J., and ENOCH, J., concur.