Opinion
W.C. No. 4-711-855.
July 1, 2009.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Cannici (ALJ) dated March 30, 2009, that determined the claimant was entitled to receive decedent's permanent partial disability (PPD) benefits as his partially dependent surviving spouse. We affirm the ALJ's March 30, 2009 order.
This matter has been before us previously. The following appear to be undisputed facts. The claimant and the decedent were common law spouses. The decedent sustained an admitted industrial injury in 2006. On the date of the industrial injury, the claimant and decedent lived together in a marital home. The claimant and the decedent continued to reside in the marital home until approximately March 2007 when they obtained separate residences, but continued to share certain expenses. The decedent reached maximum medical improvement on October 11, 2007 and received a permanent medical impairment rating. On October 23, 2007, the decedent died for reasons unrelated to his industrial injury. On October 24, 2007, the respondents filed a final admission of liability (FAL) based on the medical impairment rating.
Originally the ALJ determined that under the plain language of "the right to death benefits shall become fixed as of said date irrespective of any subsequent change in conditions" contained in § 8-41-503 (1) C.R.S. 2008 the claimant's right to death benefits and the extent of her dependency became fixed when the decedent sustained his industrial injury. Therefore the ALJ found that the parties' subsequent move to separate residences in March 2007 was irrelevant to a determination of whether they were voluntarily separated on the date the decedent suffered his industrial injury. The ALJ ordered the respondents to pay the claimant the remaining impairment benefits under the FAL as the decedent's surviving spouse. We set aside the ALJ's order and remanded for determination of whether the claimant's presumptive dependency at the time of the decedent's death was rebutted by a showing that the surviving spouse was voluntarily separated and living apart from the decedent or was not dependent on the decedent for support.
On remand the ALJ found that the claimant was a partial dependent and determined that § 8-42-117(1)(b) C.R.S. 2008 provided the appropriate formula for calculating the amount of unpaid PPD benefits the claimant was entitled to receive. The ALJ found that the claimant contributed approximately 47.8 percent towards the couple's joint income. The claimant was thus entitled to 52.5 percent of the $11, 307.88 in PPD benefits admitted in the FAL. The ALJ ordered the respondents to pay the claimant $5,902.71 as the partially dependent surviving spouse of the decedent.
On appeal, the claimant contends that ALJ committed erred by reducing a surviving spouse's death benefits by granting a portion to a non-dependent insurance company. In our view this contention by the claimant is neither an accurate statement of the issue before the ALJ nor a correct assertion of the action taken by the ALJ.
Here the legislature, not the ALJ, mandated in § 8-42-117(1)(b) that in cases, such as the present case, where death occurs to an injured employee, other than as a proximate result of the injury, before disability indemnity ceases and the deceased leaves persons partially dependent upon the deceased for support, death benefits shall be as follows:
Where the injury caused permanent partial disability, the death benefit shall consist of that proportion of the unpaid and unaccrued portion of the permanent partial disability benefit which the employee would have received if the employee had lived as the amount devoted by the deceased to the support of such persons for the year immediately prior to the injury bears to the total income of the persons during said year.
In our view the issue here is not, as proposed by the claimant, one of apportionment or offset of PPD benefits by the insurer but rather the claimant's entitlement to benefits under the Workers' Compensation Act. The claimant, citing 8-41-501(1) C.R.S. 2008, argues that because the claimant and the decedent were common law spouses at the time of the claimant's injury that the claimant was statutorily presumed to be wholly dependent because they were not living apart on the date of the injury. We disagree.
This appears to be the same position that the claimant argued before and was accepted by the ALJ. However, we previously concluded that the ALJ erred by not considering the status of the claimant's dependency at the time of the decedent's death. We still are of the opinion that the fact that the claimant and the decedent were not living apart on the date of the injury does not conclusively resolve the matter but that an examination of the dependency status at the time of the decedent's death must be considered.
As we noted in our order of remand § 8-41-501(1)(a), C.R.S. 2008 provides that a widow or widower "shall be presumed to be wholly dependent" unless it is shown that she or he "was voluntarily separated and living apart from the spouse at the time of the injury or death or was not dependent in whole or in part on the deceased for support." Section 8-41-503 (1), C.R.S. 2008 provides that "[dependents and the extent of their dependency shall be determined as of the date of the injury to the injured employee, and the right to death benefits shall become fixed as of said date irrespective of any subsequent change in conditions. . . ."
In McBride v. Industrial Commission, 97 Colo. 166, 49 P.2d 386 (1935), the court read the predecessors of §§ 8-41-501 and 8-41-503(1) together and sought to harmonize them by determining that all dependencies are not fixed at the time of the accident:
Injury and death are not always coincident. This being true, conditions constituting dependency may change during the intervening period, as is often the case, and it must follow that the extent of the right to death benefits cannot always be fixed as of the date of the accident. McBride, 97 Colo. at 170, 49 P.2d at 388.
As the court of appeals noted in Ward v. Ward 928 P.2d 739, 741 (Colo.App. 1996), the words "irrespective of any subsequent change in conditions" in § 8-41-503(1) "have been interpreted in the predecessors of this statute to fix dependency status and the amount of benefits at the time of death, not at the time of injury." See also, Richards v. Richards Richards, 664 P.2d 254 (Colo.App. 1983) (amount of death benefits should be calculated as of the date of death, not injury).
As in McBride, the present case involves a situation where the injury and death of the worker was not coincident. Further, again as in McBride, it has been found by the ALJ that there was a change in spousal dependency between the time of the accident and the time of the death of the worker. In McBride, the worker married after his injury and despite the statutory language of "the right to death benefits shall become fixed as of said date irrespective of any subsequent change in conditions," the court found that the post-injury spouse qualified for death benefits. Here, the worker and his common law spouse obtained separate residences after his injury. Therefore the remand was necessary to determine whether the claimant's presumptive dependency at the time of the decedent's death was rebutted by a showing that the surviving spouse was voluntarily separated and living apart from the decedent or was not dependent on the decedent for support.
The claimant's reliance on Exeter Drilling v. Industrial Claim Appeals 801 P.2d 20 (Colo.App. 1990) is misplaced. The claimant cites Exeter for the proposition that the presumptive dependency of a spouse may be overcome only by a showing that the surviving spouse was not dependent in any way on the decedent at the time of his injury. We agree that the court in Exeter in interpreting the predecessor of § 8-41-501, noted that the statutory presumption of spousal dependency could be rebutted by a showing that the spouse was not dependent on the decedent for support at the time of death. However, the court in Exeter went on to state that the statutory presumption of spousal dependency could also be rebutted by a showing that the surviving spouse was voluntarily separated and living apart from the decedent. Here that is what the ALJ found occurred. The ALJ found that the respondents had overcome the presumption that the claimant was wholly dependent on the decedent by finding that the claimant and the decedent intended to be voluntarily separated at the time of decedent's death.
Because the issue of whether the surviving spouse was voluntarily separated and living apart from the decedent is factual in nature, we must uphold the ALJ's determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2008. This standard of review requires us to consider 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. Wilson v. Industrial Claim Appeals Office, 81 P.3d 1117 (Colo.App. 2003).
Here the ALJ made the following pertinent findings of fact with record support. On the date of the December 28, 2006 injury the claimant and the decedent lived together. Tr. at 5, 11. During 2006 the claimant and decedent reported joint income of $62,761 on their federal income tax return. Tr. at 11; Exhibit 4. The claimant testified that she earned approximately $30,000 of the total income. Tr. at 19. The claimant and the decedent continued to reside in the marital home until approximately March 2007. Tr. at 16. The claimant explained that she and the decedent obtained separate residences, but continued to share expenses. Tr. at 16. The claimant and the decedent intended to be voluntarily separated at the time of the decedent's death. Tr. at 16. The claimant testified that she voluntarily separated from the decedent because he became difficult to live with after his industrial injury. Tr. at 17. The claimant characterized her arrangement with the decedent as a "trial separation." Tr. at 24. The claimant reached maximum medical improvement on October 11, 2007 and received a 24 percent left lower extremity impairment rating for his industrial injury. Tr. at 5; Exhibit 8. On October 23, 2007 the decedent died for reasons unrelated to his industrial injury. Tr. at 6-7. The FAL provided that the decedent was entitled to receive $11,307.88 in PPD benefits as a result of his impairment. Tr. at 5; Exhibit 8.
In our view, the record evidence above cited supports the following conclusions made by the ALJ. Because the claimant and decedent were voluntarily separated and living apart at the time of decedent's death, the ALJ concluded that the respondents had produced competent evidence to overcome the presumption that the claimant was wholly dependent on the decedent. The ALJ determined that because the decedent suffered his industrial injury in 2006 the parties' 2006 federal income tax return provided an appropriate measure of the claimant's dependency. The ALJ found that the decedent contributed approximately 52.2 percent towards the couple's joint income in 2006. Therefore, the ALJ concluded that pursuant to § 8-42-117(1)(b) the claimant is entitled to 52.2 percent or $5,902.71 of the $11,307.88 in PPD benefits admitted to in the respondents' admission.
The claimant cites testimony from the claimant that she had not discussed formal divorce from the decedent and that the decedent helped with the bills and argues that the ALJ's finding that presumption of dependency was overcome is not supported by substantial evidence. However, the court of appeals has noted that in this context the scope of our review is "exceedingly narrow." Metro Moving Storage Co. v. Gussert, 914 P.2d 411, 415 (Colo.App. 1995). The existence of evidence which, if credited, might support a determination contrary to that reached by the ALJ does not afford us grounds to grant appellate relief. Colorado Fuel and Iron Corp. v. Industrial Commission, 152 Colo. 25, 380 P.2d. 28 (1963). We perceive no basis upon which to set aside the ALJ's order.
IT IS THEREFORE ORDERED that the ALJ's order dated March 30, 2009 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
_______________________ John D. Baird
_______________________ Thomas Schrant
STEPHEN NILSEN (DECEASED), Attn: LINDA TETER, THORNTON, CO, (Claimant).
LEGACY TRUCKING, INC., COMMERCE CITY, CO, (Employer).
PINNACOL ASSURANCE, Attn: HARVEY D FLEWELLING, ESQ., DENVER, CO, (Insurer).
O'TOOLE SBARBARO PC, Attn: NEIL D OTOOLE, ESQ., DENVER, CO, (For Claimant).
PINNACOL ASSURANCE, INC., Attn: RENEE CASANOVA LEWIS, ESQ., DENVER, CO, (For Respondents).