Opinion
W.C. No. 4-254-201
February 3, 1997
ORDER OF REMAND
The respondents seek review of an order of Administrative Law Judge Friend (ALJ) which awarded the claimant maximum death benefits, subject to an offset for social security disability benefits (SSDI). We set aside the award and remand for the entry of a new order.
The claimant and the decedent were brothers. The claimant is developmentally disabled, and unemployed. The decedent was killed in an industrial accident on May 31, 1995. The claimant subsequently filed a claim for death benefits.
At the time of the decedent's industrial accident, the claimant and the decedent lived together and shared household expenses. Pursuant to the parties' stipulation, the ALJ found that the claimant's share of the household expenses equaled $456 per month. (Tr. p. 65; Finding of Fact 5). It is also undisputed that the claimant received SSDI benefits of $336 per month, which was applied to his share of the household expenses.
In determining the claimant's entitlement to death benefits, the ALJ is required to make two separate factual determinations. See § 8-41-503 (1), C.R.S. (1996 Cum. Supp.). First, the ALJ must determine whether the claimant was an "actual dependent" of the deceased worker. Section 8-41-502, C.R.S. (1996 Cum. Supp.), provides that the brother of a deceased worker may be an "actual dependent" if the brother proves that he was "wholly or partially supported" by the deceased worker at the time of the worker's death, and for a reasonable time prior thereto. The brother must also prove that he is "incapable of or actually disabled from earning" his own living. On this issue, the exact amount of financial support provided by the deceased worker is not dispositive of whether the brother was an "actual dependent." See Tilley v. Bill's Sinclair, 34 Colo. App. 141, 524 P.2d 314 (Colo.App. 1974).
Where the brother establishes that he was an "actual dependent," the ALJ must also determine the extent of the dependency. A "wholly dependent" claimant is entitled to death benefits based upon sixty-six and two-thirds percent of the deceased worker's average weekly wage as provided by § 8-42-114, C.R.S. (1996 Cum. Supp.). "Partial dependents" are limited to death benefits calculated under § 8-42-119, C.R.S. (1996 Cum. Supp.), which, in relevant part provides that:
"Partial dependents shall be entitled to receive only that portion of the benefits provided for those wholly dependent which the average amount of the wages regularly contributed by the deceased to such partial dependents at and for a reasonable time immediately prior to the injury bore to the total income of the dependents during the same time."
The ALJ found that the claimant's developmental disability permanently precludes him from working and earning his own living. The ALJ further determined that the claimant was financially dependent on the decedent, and that the claimant could not support himself on the social security income "alone." Accordingly, the ALJ found that the claimant was an "actual dependent" of the decedent at the time of the industrial accident. Expressly relying upon In re the Death of Corbin, 724 P.2d 677 (Colo.App. 1986), the ALJ further determined that due to the claimant's "total disability, and dependency upon the deceased," the claimant should be awarded maximum death benefits, less an offset for the claimant's receipt of SSDI benefits.
On review, the respondents contend that the ALJ found the claimant to be "partially dependent," not "wholly dependent" on the decedent. Therefore, the respondents argue that the ALJ erred in failing to calculate the claimant's death benefits based upon the formula set forth in § 8-42-119.
Conversely, the claimant contends that the ALJ found him to be "partially supported," by the decedent but "totally dependent" on the decedent. Consequently, the claimant argues that the ALJ properly awarded benefits under § 8-42-114. The claimant also asserts that the ALJ's order is supported by the court's conclusions in the cases of In re the Death of Corbin, supra, and Empire Zinc Co. v. Industrial Commission, 102 Colo. 26, 77 P.2d 130 (1937). We disagree with the claimant.
The ALJ found that the claimant was unable to support himself due to his "total disability," but that he was only "partially supported" by the decedent. (Conclusions of Law 1). In this regard, the ALJ noted that the claimant was receiving "three-quarters of his income from the United States government." (Transcript p. 60). See CAN-USA Construction, Inc. v. Gerber, 767 P.2d 765 (Colo.App. 1988), rev'd on other grounds at 783 P.2d 269 (1989) (the ALJ's oral findings may be considered to interpret the written findings). These findings support the conclusion that the claimant was only partially dependent on the decedent.
We recognize that § 8-42-119 gives the ALJ "discretion" to determine the "proper elements to be considered" in calculating the claimant's "total income." For example, in Empire Zinc Co. v. Industrial Commission, supra, the sister of a deceased worker was determined to be "wholly dependent" on her deceased brother, even though she was employed and made a "scant" living.
Nevertheless, we reject the claimant's argument that the ALJ implicitly excluded the claimant's SSDI benefits in determining the claimant's "total income," and therefore, found that the claimant was wholly dependent on the decedent. The ALJ found that the claimant's "income" consisted of SSDI benefits in the amount of $336. (Finding of Fact 4). Furthermore, this finding is consistent with the applicable law. See Truitt v. Industrial Commission, 31 Colo. App. 166, 499 P.2d 621, 623 (1972) (social security death benefits received by the minor children of a deceased employee constituted a "substantial and regular income" to the minor children, and therefore, were properly considered as a source of income in determining the amount of workers' compensation death benefits the children were entitled to receive). Therefore, we conclude that the ALJ's findings establish that the claimant is a "partial dependent."
We also reject the ALJ's conclusion that the decision in In re the Death of Corbin, supra, supports a maximum award of death benefits to a dependent who was partially supported by the decedent, and receives partial income in the form of SSDI. As argued by the respondents, Corbin involved a disabled claimant who was financially dependent on her brother. The issue before the court in Corbin was not the extent of the sister's dependency, but whether the claimant was an "actual dependent." The Corbin court held that there was sufficient evidence to support the ALJ's finding that the claimant was "incapable of or actually disabled from earning her own living," at the time of her brother's death, even though the claimant had previously earned wages at a sheltered workshop for handicapped persons.
Moreover, § 8-41-503(1) provides that "dependency" is "determined as of the date of the injury" and that the "right to death benefits shall become fixed as of said date." Unlike the facts in this claim, the claimant in Corbin was not receiving SSDI at the time of her brother's death. In fact, the Corbin claimant had no source of income at the time of her brother's death. Thus, in Corbin, the disabled sister's right to death benefits was fixed at a time when her "income" could not properly be calculated to include SSDI benefits.
Accordingly, Corbin is factually distinguishable from the circumstances presented here. Thus, the fact that the Corbin court upheld the award of maximum death benefits to the sister subject to an offset "for any Social Security disability benefits" she "might subsequently receive, does not persuade us that such a result is proper in the case of a partially-supported dependent who was also receiving SSDI benefits at the time of the decedent's death. In re the Death of Corbin, 724 P.2d at 678.
Similarly, we reject the claimant's argument that the ALJ's order is consistent with Empire Zinc Co. v. Industrial Commission, supra. As in Corbin, the court in Empire Zinc was not asked to consider whether the record supported a determination that the claimant was "wholly dependent" on her brother. Rather, the issue before the court in Empire Zinc was whether the claimant was an "actual dependent" of her deceased brother. Based upon the evidence that the deceased brother had financially supported the claimant through high school and promised to provide financial support while the claimant attended nursing school, the court concluded that decedent created an expectation of support. In light of all other circumstances, the court concluded that this expectation was sufficient to support a finding that the claimant was an actual dependent of her brother at the time of his death. Empire Zinc Co. v. Industrial Commission, 77 P.2d at 132.
Accordingly, we agree with the respondents that the claimant is limited to an award of death benefits in accordance with § 8-42-119. Therefore, we must set aside the ALJ's award of benefits under § 8-42-114.
The ALJ's written order does not contain any specific finding of fact concerning the average amount of the decedent's wages which were used to support the claimant. Therefore, the ALJ findings are insufficient for us to determine as a matter of law, the amount of death benefits the claimant is entitled to receive under § 8-42-119.
In reaching this conclusion, we note the claimant's testimony that, in addition to the payment of household expenses, the decedent also gave him cash to buy cigarettes, pop and other personal items. (Tr. p. 9). We cannot predict how the ALJ would have evaluated the credibility and probative weight of this testimony, had he recognized that the claimant's award must be calculated under § 8-42-119. Therefore, we remand the matter to the ALJ for additional findings of fact, and a new award which is consistent with § 8-42-119.
IT IS THEREFORE ORDERED that the ALJ's order dated March 11, 1996, is set aside and the matter is remanded for the entry of a new order consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Dona Halsey
Copies of this decision were mailed February 3, 1997 to the following parties:
Ronald E. Van Meter, 9440 Hoffman Way, Bldg. A, #101, Thornton, CO 80229
Ronald E. Van Meter, Tammy Weaver, 2305 W. 92nd Ave., #178, Denver, CO 80221
Dale Van Meter, 4525 Raritan, Denver, CO 80221
Colorado Blasting Painting I, P.O. Box 1222, Commerce City, CO 80022-0222
Colorado Compensation Insurance Authority, Attn: Brandee L. DeFalco-Galvin, Esq. (Interagency Mail)
Barrie G. Sullivan, II, Esq., 1325 S. Colo. Blvd., Ste. 405, Denver, CO 80222 (For the Claimant)
Douglas J. Kotarek, Esq., 1700 Broadway, Ste. 1700, Denver, CO 80290-1701 (For the Respondents)
BY: _______________________