Opinion
W.C. Nos. 3-115-280, 4-251-819
July 8, 1997
FINAL ORDER
Respondent Colorado Compensation Insurance Authority (CCIA) seeks review of a final order of Administrative Law Judge Martinez (ALJ), which held it liable for all of the death benefits owed to the claimant. We reverse.
The pertinent facts are not in dispute. The decedent was a uranium miner who became disabled by work-related lung cancer in November 1993. The lung cancer was caused by the decedent's exposure to radon dust. Ultimately, the claimant died on October 24, 1994.
The CCIA, as insurer for the last employer, paid workers' compensation benefits until the claimant's death. However, the CCIA argued that it is not liable for any benefits in excess of $10,000. In support of this argument, the CCIA relied on § 8-46-104, C.R.S. (1996 Cum. Supp.), and § 8-41-304(2), C.R.S. (1996 Cum. Supp.), as they existed prior to the 1993 amendments. 1993 Colo. Sess. Laws, ch. 351 at 2140. However, the ALJ rejected the CCIA's position, concluding that under the rule of independence, the Subsequent Injury Fund (SIF) is exonerated from liability because the death occurred after the elimination of SIF liability by § 8-46-104.
On review, the CCIA contends that the ALJ misinterpreted § 8-46-104, and erred in applying the current version of § 8-41-304(2). We agree.
We have previously addressed this precise issue. In King v. Walt Burnett, W.C. No. 4-260-746 (June 3, 1997), we held that a consistent and harmonious reading of § 8-46-104 and § 8-41-304(2) "leads to the conclusion that the General Assembly intended to establish a bright line rule concerning SIF liability in occupational disease cases." Consequently, we held that the SIF is liable for all benefits, including death benefits in excess of $10,000, so long as the decedent incurred the occupational disease prior to April 1, 1994.
In support of this conclusion, we noted that the current versions of § 8-46-104 and § 8-41-304(2) were enacted contemporaneously. 1993 Colo. Sess. Laws, ch. 351. Section 8-46-104 provides that no cases will be accepted into the SIF "for occupational diseases occurring on or after April 1, 1994." Section 8-41-304(2) was amended to provide that the "last employer is liable for all benefits attributable to disability and death caused by exposure to radioactive materials." In King, we reasoned that § 8-46-104 makes no distinction between closure of the SIF in cases involving disability and those involving death, but does distinguish between claims involving "injuries and diseases." Thus, we concluded that the "linchpin of SIF liability in cases of occupational disease appears to be the date the disease was incurred, not the date of any particular consequence of the disease, including death."
Moreover, we noted that prior to the 1993 amendments § 8-41-304(2) imposed liability on the SIF for all benefits over $10,000 regardless of whether they were disability or death benefits. We concluded that it would be anomalous to now interpret § 8-46-104 and § 8-41-304(2) as providing SIF liability for all disability and medical benefits over $10,000 for diseases incurred before April 1, 1994, but to exonerate the SIF from further liability for death benefits if death occurs after that date.
Finally, we concluded that a proper interpretation of the 1993 amendments indicates that the General Assembly did not intend to apply the "ordinary rules governing the law of death claims," including the "rule of independence." To the contrary, we held that a harmonious reading of these statutes demonstrates that the General Assembly intended to provide for SIF liability for all benefits in excess of $10,000 where the occupational disease was incurred prior to April 1, 1994, and to exclude SIF liability in any case where the disease was incurred after that date.
We see no reason for departing from our conclusion in King, and adopt its reasoning here. Therefore, the ALJ's order must be reversed insofar as it concluded that the CCIA is liable for all benefits, including death benefits, in excess of $10,000.
IT IS THEREFORE ORDERED that the ALJ's order dated January 7, 1997, is reversed insofar as it requires the CCIA to pay death benefits in excess of $10,000. The SIF shall be liable for any benefits including death benefits in excess of $10,000.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Bill WhitacreNOTICE This Order is final unless an action to modify or vacate the 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, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date the Order was mailed, pursuant to §§ 8-43-301(10) and 307, C. R. S. (1996 Cum. Supp.).
Copies of this decision were mailed July 8, 1997 to the following parties:
Minnie Tsosie April Tsosie, P.O. Box 262, Red Valley, NM 86544
Cecil Bunker d/b/a C.W. Bunker Co., P.O. Box 369, Norwood, CO 81423
Colorado Compensation Insurance Authority, Attn: Brandee DeFalco-Galvin, Esq., (Interagency Mail).
Subsequent Injury Fund — (Interagency Mail)
Kendra Oyen, Esq., 744 Horizon Ct., Ste. 360, Grand Junction, CO 81506, (For the CCIA Respondents).
Robert C. Dawes, Esq., 572 E. Third Ave., Durango, CO 81301, (For the Claimant).
Roxane D. Baca, Esq., Office of the Attorney General, Civil Litigation Section, 1525 Sherman St., 5th Flr., Denver, CO 80203, (For SIF).
By: ________________________________