Opinion
W.C. No. 4-511-128.
August 21, 2003.
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Mattoon (ALJ), which determined that Daniel J. Wright, Jr. (decedent) died of injuries arising out of his employment. The respondents also challenge the ALJ's determination that the claimant, decedent's mother, was a dependent and entitled to death benefits at the "maximum allowable statutory rate." We affirm.
On July 21, 2001, the claimant, who was 14 years of age, was employed by respondent Bill's Tool Rental. As one of the duties of his employment, the decedent operated an electrical hoist designed to lift equipment into and out of vehicles. The hoist was a "T-shaped" device, with an electric lifting unit located at one end of the horizontal bar. This lifting unit operated a chain with a metal hook attached to the end of the chain.
On July 21, the decedent was found unconscious with the hoist chain wrapped around his neck. The decedent's feet were touching the ground and his knees were suspended approximately 6 inches above the ground. The decedent was taken to the hospital, where he died on July 27 from the effects of the strangulation injury.
At the time of the incident, the decedent was residing with his stepfather (the claimant's ex-husband). In June 2001, the claimant was diagnosed with cancer and the decedent was fully aware of this diagnosis. Although residing with the stepfather, the decedent regularly visited his mother and occasionally gave her $10 or $20 dollars from his paycheck to help with household expenses. Sometimes the decedent took his two half-siblings out for fast food dinners and assisted the claimant with household chores. Finally, the decedent promised to move in with the claimant and assist her during her illness.
The respondents contested compensability of the decedent's death. At the hearing, the respondents withdrew the defense of suicide and advanced the theory that the decedent's injuries resulted from "horseplay." However, the ALJ concluded "insufficient evidence was presented to demonstrate" the decedent deviated from the duties of his employment. Specifically, the ALJ found the decedent was a "serious and hard-working" employee who was "not prone to horseplay."
Conversely, the ALJ found that use of the hoist was "part of the [decedent's] job responsibilities." Further, just prior to the injury, coworkers observed the decedent "appropriately" using the hoist to unload equipment from a customers's truck. Under the circumstances, and despite finding that it is "unknown how or why the chain got around" the decedent's neck, the ALJ concluded the injury arose out of the decedent's employment.
The ALJ further determined that the claimant was dependent on the decedent. In support of this determination the ALJ cited the money which the decedent gave to the claimant, and the meals which the decedent bought for his siblings. The ALJ also relied on the household services performed by the decedent and the "expectation of further support" based on the decedent's promise to move in with his mother. Consequently, the ALJ ordered the death benefits paid at the "maximum allowable statutory rate."
I.
On review, the respondents contend the findings of fact do not support the ALJ's conclusion that decedent's injuries arose out of employment. The respondents argue that because the ALJ found, "no one knows how the chain got around" the decedent's neck, the claimant failed to prove that the injury arose out of the employment. We disagree.
Here, the respondents do not dispute that the decedent's death occurred "in the course of" his employment. However, they reason that the "arising out of" element is absent because the claimant failed to establish that the decedent's death bore a sufficient relationship to the decedent's work-related functions. In support, the respondents rely on "unexplained fall" cases including Finn v. Industrial Commission, 165 Colo. 106, 437 P.2d 542 (1968), and Industrial Commission v. London Lancashire Indemnity Co., 135 Colo. 372, 311 P.2d 705 (1957).
An injury arises out of employment if it originates in work-related responsibilities so as to be considered part of the service to the employer under the contract of employment. This issue is one of fact to be determined based on an examination of the totality of the circumstances. Lori's Family Dining, Inc. v. Industrial Claim Appeals Office, 907 P.2d 715 (Colo.App. 1995). The claimant bears the burden of proof by a preponderance of the evidence, and in resolving the issue, the facts may not be interpreted liberally in favor of one party or the other. Section 8-43-201, C.R.S. 2002; City of Boulder v. Streeb, 706 P.2d 786 (Colo. 1985).
Because the issue is one of fact, we must uphold the ALJ's determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2002. This standard of review requires us to view the evidence in a light most favorable to the prevailing party, and defer to the ALJ's credibility determinations, resolution of conflicts in the evidence, and plausible inferences drawn from the record. Metro Moving and Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
The respondents' contention notwithstanding, the record contains substantial evidence from which the ALJ could infer that decedent was injured as the result of performing service under the contract of employment. As the ALJ found, manipulation of the hoist was part of the claimant's regular job duties. In fact, the claimant was seen to be using the hoist in a work-related activity shortly before the incident. Moreover, considering the absence of any history of "horseplay"involving the decedent's use of the hoist, the ALJ was unpersuaded that the decedent came into contact with the hoist for reasons unrelated to the performance of his duties.
In our view, the ALJ's determination that decedent's death of arose out of employment constitutes a plausible inference from the record. The mere fact that no witness observed exactly how or why the chain became wrapped around the decedent's neck did not compel the ALJ to conclude that the decedent was not performing work-related functions or was engaged in horseplay. There is no requirement that an industrial injury or death be witnessed for the ALJ to infer that the injury or death arose out of the performance of work-related services. If the law did not permit proof by circumstantial evidence, an "unattended injury or death in many cases would not be compensated." See Employers Mutual Liability Insurance Co. v. Industrial Commission, 145 Colo. 91 357 P.2d 929 (1960).
Further, the "unexplained fall" cases are inapposite. Those cases generally stand for the proposition that Colorado law does not create a presumption that injuries occurring in the course of employment necessarily arise out of the employment. Thus, if a claimant falls at work for reasons which cannot be connected in some way to the conditions of the employment, and the circumstances of employment do not increase the severity of the injury, the injury is not compensable. Industrial Commission v. London Lancashire Indemnity Co., supra; Rice v. Dayton Hudson Corp., 4-386-678 (July 29, 1999). Here, however, the ALJ inferred from circumstantial evidence that the claimant sustained an accident while properly using a piece of work-related equipment. That determination supports the award. Olivas v. Keebler Co., W.C. No. 4-418-316 (October 24, 2001).
II.
The respondents next contend the ALJ erred in determining that the claimant was dependent on the decedent. Specifically, the respondents assert that the decedent did not "support" the claimant within the meaning of § 8-41-502, C.R.S. 2002. The respondents argue the claimant was not reliant on the decedent's financial support, the ALJ erred in considering the support which the decedent might have provided had he returned to his mother's house, and the ALJ erred in considering that decedent's performance of household services. We are not persuaded.
Section 8-41-502 provides that a mother, who is "wholly or partially supported by the deceased employee at the time of death and for a reasonable period of time immediately prior thereto is considered an actual dependent." The statute goes on to provide that dependents "must prove that they were incapable of or actually disabled from earning their own living."
The respondents assert that "support" is measured by a purely monetary standard, and the ALJ's consideration of non-monetary contributions by the decedent was improper. However, we agree with the claimant that this contention is refuted by the Supreme Court's holding in Empire Zinc Co. v. Industrial Commission, 102 Colo. 26, 77 P.2d 130 (1937). The court held the evidence established that a sister was supported by her brother for purposes of establishing dependency, where the decedent had helped his sister financially prior to her graduation from high school in May 1936, and promised to help her through nursing school. Although the claimant was working when the decedent was killed in June 1936, the court stated the following:
The company insists that the admitted dependency theretofore existing had terminated before the death of deceased. This contention would have its appeal, if the failure of deceased to make contributions to claimant during the short period intervening before his death would negative her dependency. But dependency is not always to be so determined; it must rest upon the prevailing facts and conditions of each particular case. The making of financial contributions is certainly physical evidence of the recognition of dependency by the contributor; but the dependency nevertheless could exist, be relied upon by the dependent, and have been acknowledged by deceased without any actual money payment, which could have been prevented by some cause operating against his will. There is evidence to support claimant's contention that deceased had promised to assist her in obtaining training which would fit her to become a nurse. That she relied upon this expectation of help is not controverted. Judging from his acknowledged assumption of the burden during all the time of his employment, it is only fair to presume that deceased had led claimant to expect an depend upon his brotherly bounty for the future, and this, together with the other attending circumstances, made her all that the word implies, a dependent, within the meaning of the statute. The evidence discloses reasonable grounds for such expectancy on her part, and the anticipation by her of a continuation of the already established status of dependency, without a suggestion of its termination, is the true guide in determining whether or not she was in fact a dependent.
In light of Empire Zinc Co., we conclude the evidence is sufficient to support the ALJ's finding that the claimant was at least partially dependent on the decedent. Prior to his death, the decedent made monetary contributions to the welfare of the claimant and maintenance of her household. While these contributions were not large in absolute terms, neither was the ALJ compelled to consider them insignificant in light of the claimant's meager income and the necessity of maintaining a household for three persons. Further, the decedent's actions in assisting the claimant with household activities lend credence to the ALJ's conclusion that the claimant was dependent on the decedent, and expected that dependency to continue and grow in the future.
Moreover, in light of the finding that the claimant was suffering from cancer and undergoing treatment, the decedent's promise to move home and provide additional assistance was properly viewed as creating a reasonable expectation of an already established pattern of dependency. The ALJ was not required to infer, as the respondents argue, that if the decedent had returned home, the claimant would have been forced to support him. The claimant was already receiving assistance for housing expenses and child support. Thus, the addition of the decedent's salary may have resulted in a net addition to the claimant's income.
III.
Finally, the respondents contend, the order is insufficient because it does not contain findings of fact concerning the extent of the claimant's dependency. The respondents assert that such a finding is necessary in order to apply the formula for calculating partial dependency benefits under § 8-42-119, C.R.S. 2002.
However, as the claimant points out, § 8-42-102(4) provides that if the employee is a minor, and benefits "accrue because of the death of such minor, compensation to said minor or death benefits to said minor's dependents shall be paid at the maximum rate of compensation payable under said articles at the time of the determination of such permanency or at such death." The maximum rate of compensation for death benefits is "ninety-one percent of the state average weekly wage." Section 8-42-114, C.R.S. 2002. Accordingly, the ALJ properly ordered death benefits at the maximum rate. Cf. Arkansas Valley Seeds Inc. v. Industrial Claim Appeals Office, 972 P.2d 695 (Colo.App. 1998) (pursuant to § 8-42-102(4), PPD benefits for a minor are to be paid at maximum allowable TTD rate, not the claimant's actual TTD rate). The respondents' brief does not address the effect of § 8-42-102(4), and we see no basis for concluding that the statute is not controlling in this case.
Moreover, at the hearing the respondents admitted that the death benefits are to be paid at the maximum rate. (Tr. P. 112). The respondents may not attempt to controvert the stipulation on appeal. Schlage Lock v. Lahr, 870 P.2d 615 (Colo.App. 1993).
IT IS THEREFORE ORDERED that the ALJ's order dated January 24, 2003, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Dona Halsey
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, Colorado 80203, by filing a Petition to Review with the Court, within twenty (20) days after the date this Order was mailed, pursuant to § 8-43-301(10) and § 8-43-307, C.R.S. 2002. 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 August 21, 2003 by A. Hurtado .
Jana Brandt, c/o Steven U. Mullens, Esq., P. O. Box 2940, Colorado Springs, CO 80901-2940
Bill Lewis, Bill's Tool Rental, 125 S. Chestnut St., Colorado Springs, CO 80905-1608
Patricia Crain, Farmer's Insurance Exchange, Commercial Claims Office, 7535 E. Hampden Ave., #300, Denver, CO 80231-4842
Steven U. Mullens, Esq., P. O. Box 2940, Colorado Springs, CO 80901-2940 (For Claimant)
Douglas L. Stratton, Esq. and Thomas M. Condas, Esq., 2629 Redwing Rd., #330, Ft. Collins, CO 80526-6316 (For Respondents)