Opinion
W.C. No. 4-537-010.
January 19, 2005.
FINAL ORDER
The Subsequent Injury Fund (SIF) seeks review of orders of Administrative Law Judge Gartland (ALJ Gartland) and Administrative Law Judge Martinez (ALJ Martinez), which granted the claimants' request for workers' compensation death benefits. We affirm.
In 1993, the decedent became permanently and totally disabled as a result of an occupational disease which impaired his respiratory function. The decedent died on March 21, 2002, due to respiratory failure secondary to an acute myocardial infarction. The decedent was survived by his wife, Carol C. Trudeau (Carol) and a great-grandchild, Donovan N. Trudeau (Donovan).
In a prior order, dated February 12, 2003, ALJ Gartland found the decedent's severe, long standing pulmonary disease contributed to the decedent's death. However, ALJ Gartland determined the claimants were required to prove the lung disease did "more than contribute" to the decedent's death to establish their entitlement to death benefits. Therefore, ALJ Gartland denied the claim for death benefits. The claimants appealed.
On review, we held ALJ Gartland's finding that the occupational disease was "a" cause of the death compelled the legal conclusion the lung disease was a significant causative factor in the decedent's death. Consequently, we reversed the order denying the claim and remanded the matter for a determination of the amount of death benefits to be awarded to the eligible dependents.
On remand ALJ Gartland entered an order dated March 25, 2004, which awarded death benefits to both claimants. The SIF timely appealed the March 25 order.
However, the March 25 order did not apportion the death benefits between the claimants. Therefore, we dismissed without prejudice the appeal from the March 25 order.
On remand ALJ Martinez issued an order dated November 5, 2004, which required that death benefits be paid "in their entirety to Carol Trudeau for her and for the benefit of Donovan Trudeau, a minor child dependent for so long as the [sic] Carol Trudeau remains a legal custodian of Donovan Trudeau or until the child turns 18 years of age. Once the child turns 18 years of age, the child is entitled to one-half of the benefits upon a proper showing per § 8-41-501(1)(c)." The SIF timely appealed the November order.
I.
On review of the November 5 order, the SIF renews its contention that no death benefits are payable because the claimants failed to establish the occupational disease was the proximate cause of the decedent's death. The SIF's arguments do not persuade us to depart from our prior conclusions.
Section 8-41-301(1)(c), C.R.S. 2004, creates the right to death benefits where the worker's death is "proximately caused by an injury or occupational disease." The industrial injury need not be the immediate cause of the death, but only a proximate cause to support an award of death benefits. Johnson v. Industrial Commission, 148 Colo. 561, 366 P.2d 864, 865 (Colo. 1961).
Seifried v. Industrial Commission, 736 P.2d 1262 (Colo.App. 1986), holds that to support an award of permanent and total disability benefits, the industrial injury must be a "significant" causative factor in the claimant's permanent total disability in that it must bear a direct causal relationship between the precipitating event and the resulting disability. Two years later, in Subsequent Injury Fund v. State Compensation Insurance Authority, 768 P.2d 751, 753 (Colo.App. 1988), the court concluded that an occupational disease is the "proximate cause" of a worker's permanent and total disability if the occupational disease is a "necessary pre-condition" or "trigger" to the disability. Ibid at 753.
Expressly relying on Seifried v. Industrial Commission, supra, and Subsequent Injury Fund v. State Compensation Insurance Authority, supra, we concluded in Tibbets v. Union Carbide Corporation, W.C. No. 3-109-015 (December 27, 1995), that an occupational disease must be a significant cause of death or a "precondition or trigger" of the worker's death, to support an award of death benefits. We adhere to our conclusions in Tibbets.
In Tibbets the claimant suffered an admitted occupational lung disease diagnosed as pneumoconiosis. The issue was whether the lung disease was a factor in the decedent's death. Because there was substantial evidence to support an ALJ's finding that the death was "solely" caused by an unrelated cardiac condition, we concluded that the claimant in Tibbets failed to prove the industrial injury was the proximate cause of the death.
Here, ALJ Gartland found that the occupational lung disease "contributed" to decedent's death because the lung disease weakened the heart over time and reduced the decedent's chances of surviving the heart attack. Notwithstanding SIF's arguments to the contrary, these findings are supported by substantial evidence in the record and particularly Dr. Kanner's opinions. Dr. Kanner opined the claimant had several risk factors for coronary disease including lesions on his coronary arteries. He added that one of the lesions was "probably the immediate cause of [the decedent's] demise," and the coronary artery disease was the "primary" cause of death. (Depo. p. 37). However, Dr. Kanner also opined that the decedent suffered from a severe lung disease which made him hypoxemic, (low level of oxygen the blood). Dr. Kanner explained that hypoxemia increases pulmonary circulation pressure and strains the heart. (Depo. p. 10). Therefore, although the lung disease did not cause the blockage of the blood vessels which caused the decedent's myocardial infarction, Dr. Kanner opined that the lung disease "aggravated" the heart condition and contributed to the circulatory collapse. (Depo. pp. 15, 16, 32). Specifically, Dr. Kanner opined that the decedent's lung problems "contributed to 15 percent of the low cardiac output and shock that developed after his coronary occlusion." (Depo. p. 35). Dr. Kanner added that "there's a reasonable possibility [the decedent] could've survived this insult to his heart had he not had the pulmonary problem." (Depo. p. 15).
Moreover, the findings of ALJ Gartland compel the legal conclusion that the lung disease was a significant causative factor in the decedent's death. See Schrieber v. Brown Root, Inc., 888 P.2d 274 (Colo.App. 1993) (causation is question of law if reasonable minds can draw only one conclusion from established facts). Therefore, the claimants sustained their burden to prove the decedent's death was work related.
II.
Alternatively, SIF contends Donovan was not dependent on the decedent at the time of the decedent's death. In support, the SIF points out that the decedent was never legally obligated to support Donovan. The SIF also points out that legal responsibility for Donovan was never granted to the decedent and was only granted to the decedent's widow after the decedent's death. Under these circumstances, the SIF contends the Donovan could not be a dependent of the decedent purposes of § 8-41-502. We disagree.
Workers' compensation death benefits are payable to dependents. Actual dependency may be proven for a child over the age of 18, a mother, father, grandmother, grandfather, sister, brother, or grandchild, "who was wholly or partially supported by the deceased employee at the time of death and for a reasonable period of time immediately prior thereto." Section 8-41-502, C.R.S. 2004.
Initially we note that the SIF does not dispute ALJ Gartland's finding that the term "grandchild" encompasses a "great-grandchild." Consequently, we do not consider that issue. Cf. Dietiker v. Industrial Claim Appeals Office, 867 P.2d 171 (Colo.App. 1993) (unadopted step-child not presumed dependent "child").
As argued by the SIF, § 8-41-502 provides that 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 that date. However, the test for determining actual dependence is whether the claimant "was wholly or partially supported by the deceased employee at the time of death and for a reasonable period of time immediately prior thereto." We know of no legal obligation to support a sister, brother, parent or grandfather and the SIF does not assert any such obligation. Accordingly, we conclude the statute does not require proof that the decedent was legally obligated to provide support to the claimant as long as the claimant falls within one of the class of persons who may be determined actual dependents and the decedent was actually providing financial support at the time of death. Consequently, the fact that legal proceedings concerning Donovan's custody were not resolved until after the decedent's death is not dispositive of Donovan's right to death benefits.
Instead the issue is whether the record supports ALJ Gartland's finding that Donovan was supported by the decedent at the time of the decedent's death and for a "reasonable period of time" immediately prior to the decedent's death. See Industrial Commission v. Ahel, 80 Colo. 128, 249 P. 866 (1926) (what constitutes a "reasonable period of time" is a question of fact for resolution by the ALJ). We must uphold that determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2004.
Here the record contains substantial evidence in Carol's testimony to support the ALJ's findings that Donovan began living with the decedent three months before the decedent's death, that Donovan was a minor child with no independent source of income and that Donovan was dependent on the decedent's income for his support. Furthermore, the ALJ could, and did, infer that in view of Carol's pending application for legal custody of Donovan, three months was a reasonable period of time to reflect Donovan's dependence on the decedent.
IT IS THEREFORE ORDERED that the ALJs' orders dated
INDUSTRIAL CLAIM APPEALS PANEL
_________________ David Cain
_________________ Kathy E. Dean
Carole S. Trudeau and Donovan N. Trudeau, Dove Creek, CO, Kathleen A. Pennucci, Subsequent Injury Fund, Division of Workers' Compensation — Interagency Mail Robert C. Dawes, Esq., Durango, CO, (For Claimants).
Jill M.M. Gallet, Esq., Denver, CO, (For Respondent Subsequent Injury Fund).