Opinion
W.C. No. 4-475-755
April 16, 2003
FINAL ORDER
Robert Tyler (claimant) seeks review of an order of Administrative Law Judge Stuber (ALJ), which determined the claimant was not partially dependent on his daughter Denise Tyler (decedent). The claimant argues the ALJ's findings are contrary to the evidence. We affirm.
The decedent became ill and was hospitalized in February 2000. She died in June 2001. The claimant filed a claim for death benefits alleging he was partially dependent on the decedent.
The claimant was incarcerated from September 1987 through September 2001. The ALJ found that during this period of time the State of Colorado (hereinafter the state) provided for the claimant's basic needs for food, clothing and lodging. In addition, the claimant received a military pension of approximately $200 to $ 300 per month which was credited to a prison account. The claimant used this money to buy additional items of food, clothing, and entertainment equipment.
While the claimant was in prison, the decedent would sometimes augment the military pension funds with contributions of her own. However, the ALJ found the amount of these contributions was unproven.
While the claimant was in prison, the decedent and one or two sisters lived in a house owned by the claimant. During this time the decedent paid one-third to one-half of the monthly mortgage. Further, the ALJ found that in the early-1990's the decedent paid some legal fees which were incurred in an effort to get the claimant freed from prison.
Under these circumstances, the ALJ concluded the claimant failed to prove he was partially dependent on the decedent within the meaning of § 8-41-502, C.R.S. 2002. The ALJ found the claimant was dependent on the state for his basic needs, and the claimant failed to prove the extent to which the decedent augmented the claimant's prison account, or that the claimant had significant expenses beyond the basic needs provided by the state. Further, the ALJ was unpersuaded that the decedent's payment of the mortgage constituted support of the claimant. Instead, the ALJ found the decedent was meeting her own need for shelter, and that the claimant's need was met by the state. Finally, the ALJ determined that payment of the legal bill at some time in the past did not prove the claimant was dependent on the decedent.
On review, the claimant contends the ALJ erred in finding he was not partially dependent on the decedent. The claimant argues that to the extent the decedent contributed to his living expenses in prison he was partially dependent, even though the state may have provided the majority of his support. We find no error.
Section 8-41-502 provides that a father "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 is considered an actual dependent." It is true, as the claimant argues, that proof of partial dependency is not limited to contributions for essential items such as food, clothing, and shelter. In Industrial Commission v. Di Nardi, 103 Colo. 591, 87 P.2d 494, 498 (1939), the court stated the following:
The rule as stated by most of the authorities is that the surviving dependents are entitled to continue to live as they had been living prior to the accident. The basic idea of the statute is compensation. Surviving relatives within the class named in the statute, to whose living decedent contributed, and upon whom they relied partially or wholly for support, are beneficiaries. The statute does not require destitution in order to be dependents. The statute should not be so construed as to encourage extravagance. In order for relatives to be dependents of an unmarried decedent, they must be dependent in fact on his contributions in order to continue to live in comfort according to the manner of living of people in their class and condition in life. [citation omitted].
However, as the ALJ correctly recognized, the claimant carries the burden of proof to establish the extent of dependency, be it whole or partial. See Byrd v. Industrial Commission, 658 P.2d 274 (Colo.App. 1982). The question of whether the claimant met the burden of proof is one of fact for determination by the ALJ. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995). Consequently, 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 proof 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 Storage Co. v. Gussert, supra.
Here, the ALJ recognized the decedent provided some support to the claimant by making contributions to the claimant's prison account. Thus, contrary to the claimant's assertion, the ALJ did not hold that the claimant was prohibited from proving partial dependency simply because the state provided most of the claimant's support. Rather, the ALJ determined the claimant failed to prove the extent of support provided by the decedent such that the ALJ could make a finding that the claimant was partially dependent on the decedent for support. (Conclusions of Law P. 4).
Our review of the record reveals substantial evidence to support the ALJ's finding that the claimant failed to meet the burden of proof. The claimant could not state with any certainty the extent to which the decedent supplemented the prison account. (Tyler Depo. Pp. 21, 34). Similarly, the decedent's sisters were indefinite concerning the decedent's contributions to the account. (Tr. Pp. 36-37; Crawford Depo. P. 15). Thus, there is no basis to interfere with the ALJ's order based on the decedent's contributions to the prison account.
This case is distinguishable from Mile High Masonry v. Industrial Commission, 718 P.2d 257 (Colo.App. 1986), cited by the claimant. In the Mile High Masonry case there was evidence concerning the amount of the decedent's earnings, which were then used to pay his share of the room and board. Thus, in that case, there was an adequate evidentiary basis for determining the extent of support provided by the decedent. Here, the evidence is lacking.
The claimant next contends the ALJ should have found the decedent's payments on the mortgage constituted support of the claimant. However, as the ALJ correctly stated, the ALJ need not have found the mortgage payments constituted "support" of the claimant while the state was sheltering him in prison. Rather, the ALJ plausibly interpreted the mortgage payments as necessary expenses incurred by the claimant to meet her own need for shelter. Although the decedent's payment of the mortgage may have provided a long term benefit to the claimant by maintaining the property while he was in prison, the ALJ need not have found that such payments constituted support of the claimant at the time of the injury. See § 8-41-503(1), C.R.S. 2002 (dependency and the extent of dependency determined on the date of injury); Industrial Commission v. Di Nardi, supra.
Neither did the ALJ err in finding the decedent's contribution to the legal expenses was not proof of dependency. Although there was some conflicting evidence, the record supports the finding the decedent made a one-time payment to a lawyer in the early to mid- 1990's. (Tyler Depo. Pp. 11-12, 17) (Crawford Depo. Pp. 16-17, 21-22). The claimant presented some evidence a payment was made in 1999, but the ALJ implicitly rejected that evidence. (Finding of Fact 8). We may not interfere with the ALJ's resolution of conflicts in the evidence.
To the extent the claimant makes other arguments, we find them to be without merit.
IT IS THEREFORE ORDERED that the ALJ's order dated August 7, 2002, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ David Cain
___________________________________ Kathy E. Dean
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, CO 80203, by filing a petition for review with the Court, within twenty (20) days after the date this Order is 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 Street, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed April 16, 2003 to the following parties:
Robert Tyler, 625 Placid Rd., Colorado Springs, CO 80910
Xpectra, Inc., 6325 Monarch Park Pl., Longmont, CO 80503-7167
Brandee DeFalco Galvin, Esq., Pinnacol Assurance — Interagency Mail (For Respondents)
W. Thomas Beltz, Esq., 729 S. Cascade Ave., Colorado Springs, CO 80903 (For Claimant)
Brad J. Miller, Esq., 600 17th St., #1600N, Denver, CO 80202
By: A. Hurtado