Opinion
W.C. No. 4-711-855.
December 23, 2008.
ORDER OF REMAND
The respondents seek review of an order of Administrative Law Judge Cannici (ALJ) dated July 21, 2008 that ordered the respondents to pay the decedent's remaining impairment benefits to the claimant as his surviving spouse. We set the order aside and remand for entry of a new order.
The ALJ's pertinent findings of fact are as follows. On May 1, 2002, the claimant and the decedent became common law spouses. The decedent sustained an admitted industrial injury on December 28, 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 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 based on the medical impairment rating.
The ALJ concluded that the claimant's right to death benefits and the extent of her dependency became fixed when the decedent sustained his industrial injury. Therefore, according to the ALJ, the parties' subsequent move to separate residences at the time of the decedent's death was irrelevant to a determination of dependency. The ALJ found that at the time of the decedent's industrial injury the claimant was not voluntarily separated from the decedent and was partially dependent upon him for support. Thus, the ALJ determined that the respondents had failed to overcome the statutory presumption that the claimant was wholly dependent on the decedent. The ALJ ordered the respondent to pay to the claimant the remaining impairment benefits under the final admission of liability as the decedent's surviving spouse.
The respondents assert that the ALJ misapplied the statutory provisions relevant to this matter. Section 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 support of their contention that the ALJ misconstrued these provisions, the respondents refer to an early decision of the Colorado Supreme Court.
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, there arguably 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. However 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) found that 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. We conclude that the ALJ erred by not considering the status of the claimant's dependency at the time of the decedent's death.
We must set aside an ALJ's order if the ALJ applied an incorrect legal standard in assessing the evidence. Section 8-43-301(8), C.R.S. 2008. Because of the courts' construction of the statutory language contained in predecessors of § 8-41-501 and § 8-41-503 (1) as harmonized in McBride v. Industrial Commission, supra, the ALJ erred in his determination that the claimant's status as a dependent at the time of the decedent's death was irrelevant. Therefore, we set aside the order and remand the matter for the entry of a new order on the issue of the claimant's dependency status at the time of the decedent's death.
The court in Exeter Drilling v. Industrial Claim Appeals 801 P.2d 20 (Colo.App. 1990), in interpreting the predecessor of § 8-41-501, noted that the statutory presumption of spousal dependency can be rebutted only 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 at the time of death. See Diamond Industries v. Claimants in re Death of Crouse, 41 Colo. App. 541, 589 P.2d 1383 (1978) (widow dependent on decedent in part deemed wholly dependent). We note that a widow may be entitled to benefits where, despite having her own substantial sources of support, the decedent made some contribution to her support. Michalski v. Industrial Claim Appeals Office, 781 P.2d 183 (Colo.App. 1989). Furthermore, living apart at the time of death does not control the determination of whether spouses were voluntarily separated. Instead, the court must examine the intent of the couple. Where they lived apart, but intended to remain married, and no legal proceedings to divorce or separate were pending, a widow may be found to be dependent. Id.
On remand, the ALJ shall 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. In reaching this result, we should not be understood as expressing any opinion concerning the resolution of the factual issues underlying this question. We merely hold that the ALJ's order reflects a misapplication of the law. IT IS THEREFORE ORDERED that the ALJ's order dated July 21, 2008 set aside, and the matter is remanded for entry of a new order consistent with the views expressed herein.
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 O'TOOLE, ESQ., DENVER, CO, (For Claimant).
PINNACOL ASSURANCE, INC., Attn: RENEE CASANOVA LEWIS, ESQ., DENVER, CO, (For Respondents).