W.C. No. 4-539-747Industrial Claim Appeals Office.
November 19, 2003
FINAL ORDER
The claimant, in her capacity as Personal Representative for the Estate of Maxine Cooper (decedent), and the respondent separately seek review of an order of Administrative Law Judge Harr (ALJ) which denied the claimant’s request for permanent partial disability (PPD) benefits and failed to order the repayment of PPD benefits previously paid to the decedent. We modify the order denying the overpayment recovery, and otherwise affirm.
The matter was adjudicated on the following stipulated facts. The decedent suffered an admitted work-related injury in March 2002. On August 30, 2002, the respondent filed an uncontested Final Admission of Liability which admitted liability for PPD benefits in the amount of $26,831.54. On September 4, 2002, the respondent issued a periodic PPD payment of $1,064.70. Pursuant to the decedent’s request for a $10,000 lump sum payment, the respondent then issued a check in the amount of $9,981.05 on September 12, 2002.
The decedent died on September 14, 2002 of causes unrelated to the industrial injury. At the time of her death, the decedent had no dependents as defined by the Workers’ Compensation Act (Act).
The claimant negotiated the September 4 and September 12 PPD checks on behalf of the decedent’s estate. The claimant then requested an order requiring the respondent to pay the balance of the PPD award to the estate.
Relying on Dick v. Industrial Commission, 197 Colo. 71, 589 P.2d 950
(1979), overruled on other grounds in Huey v. J.C. Trucking, Inc., 837 P.2d 1218, 1221 (Colo. 1992), the ALJ determined the Act does not provide for the payment of PPD benefits to the legal representative of an injured worker’s estate. Therefore, the ALJ denied and dismissed the claim for the remainder of the PPD award.
I.
On appeal, the claimant contends the balance of the PPD award was vested at the time of the decedent’s death and argues there is no statutory authority that the award was forfeited upon the decedent’s death. The claimant also argues that under § 15-12-709, the decedent’s estate has the same powers to possess the decedent’s property as the decedent. Therefore, the claimant contends the ALJ erroneously refused to order the respondent to pay the balance of the PPD award to the decedent’s estate. We disagree.
Initially, we note that under the rule of independence, an injured worker’s right to disability benefits is a separate and distinct claim to an award of death benefits. Metro Glass Glazing, Inc. v. Orona, 868 P.2d 1178 (Colo.App. 1994); State Compensation Insurance Fund v. Industrial Commission, 724 P.2d 679 (Colo.App. 1986). Further, the survival statute, which provides that all causes of action may be brought, notwithstanding the death of the person in favor of whom such action has accrued, is inapplicable to claims filed under the Act. Huey v. J.C. Trucking, Inc., supra; Dick v. Industrial Commission, supra.
Moreover, the term “claimant” does not include the claimant’s estate for purposes of workers’ compensation death benefits. BCW Enterprises LTD. v. Edelen, 964 P.2d 533 (Colo.App. 1997). Thus, the decedent’s entitlement to PPD benefits does not automatically translate into an entitlement to death benefits except as specifically outlined by the Act.
Here, it is undisputed the decedent’s death was not the proximate result of the industrial injury and the claimant had not been awarded permanent total disability benefits. Thus, the claim is governed by §8-42-116(1)(b), C.R.S. 2003, which provides:
“If death occurs to an injured employee, other than as a proximate result of any injury, before disability indemnity ceases and the deceased leaves persons wholly dependent upon the deceased for support,”
the death benefit “shall consist of the unpaid and unaccrued portion of the permanent partial disability benefit where the employee would have received had he lived.” (Emphasis added).
The rules of statutory construction require that a statute be given the underlying legislative intent. Lobato v. Industrial Claim Appeals Office, ___ P.3d ___ (Colo.App. No. 02CA1145, June 5, 2003); Singleton v. Kenya Corporation, 961 P.2d 571 (Colo.App. 1998). Words and phrases must be given their commonly accepted and understood meanings. Therefore, if we can give effect to the ordinary meaning of the words adopted by the General Assembly, the statute should be construed as written, because it is presumed the General Assembly meant what it clearly said. Singleton v. Kenya Corporation, supra.
Further, where portions of a sentence in a statute are connected by “and” they are to be considered jointly. See Diamond Industries v. Claimants in re Death of Crouse, 41 Colo. App. 541, 589 P.2d 1383
(1978); cf. U.S. West Communications, Inc., v. Industrial Claim Appeals Office, 978 P.2d 154 (Colo.App. 1999). Thus, when conditions are stated in the conjunctive, the statute applies only when all of the enumerated circumstances are present.
Section 8-42-116(1) is written in the conjunctive. Therefore, the plain language of the statute permits an award of death benefits based on the amount of unpaid PPD benefits only if the industrial injury is not the proximate cause of the death and the deceased leaves persons wholly dependent upon the deceased for support. Accordingly, § 8-42-116
compels the conclusion that the General Assembly did intend that unaccrued PPD benefits are forfeited where the injured worker dies without dependents.
Contrary to the claimant’s further contentions, we are unable to locate any other provision in the Act, which creates a substantive right by the decedent’s estate to recover PPD benefits if there are no dependents. Indeed, § 8-42-123, C.R.S. 2003, provides that even if the death is the proximate result of the industrial injury, compensation shall be “limited” to a lump sum payment for burial expenses if the injured worker has no dependents. See Schenfeld v. Shaffer, 29 Colo. App. 425, 487 P.2d 818 (1971) (Act does not provide greater benefits for disabled employee who dies of causes unrelated to work-connected injury than death resulting from work-connected disability).
In addition, the claimant’s reliance on § 8-41-503(1), C.R.S. 2003, as authority that PPD benefits are payable to a decedent’s estate, is misplaced. Section 8-41-501 through § 8-41-503 pertain to the definition of “dependency” and create a process for determining dependency as a matter of fact. We recognize that § 8-41-503(1), states that “death benefits shall be directly payable to the dependents entitled thereto or to such person legally entitled thereto as the director may designate.” However, the statute does not create any substantive right to pay PPD benefits to the injured workers’ estate where there are no dependents. Rather, the statute inherently refers to the payment of death benefits on behalf of dependents to a person designated by the director to maintain such funds for the dependents.
Under § 8-41-501, a dependent is a “person” who relied on the decedent for financial support. See United States National Bank of Denver v. Industrial Commission, 128 Colo. 417, 262 P.2d 731 (Colo. 1953). The injured worker’s estate does not meet that definition, and the claimant’s remaining arguments are not persuasive. Therefore, the ALJ did not err in denying the estate’s claim for PPD benefits.
II.
The respondent contends the ALJ erred in failing to order repayment of the previously paid PPD payments. For its part, the claimant contends the overpayment issue was not properly before the ALJ for adjudication because the respondent did not file a formal petition to reopen the claim. We disagree with the claimant.
Section 8-43-303(1) C.R.S. 2003, allows a claim to be reopened on the grounds of fraud, mistake, or error. As amended in 1997, the statute also allows an ALJ to reopen a claim based on an overpayment.
Nothing in § 8-43-303 mandates the filing of a formal petition to reopen in order to confer jurisdiction on an ALJ to determine whether there has been an overpayment. Rather, the filing of a petition to reopen is a procedural mechanism designed to facilitate the process of adjudicating requests to reopen. See Rule of Procedure X(B), 7 Code Colo. Reg. 1101-3 at 37. While courts have held the procedural rules governing the filing of petitions to reopen may be enforced, they have not held such rules erect jurisdictional barriers to adjudicating reopenings where the rules have not been complied with. See Lewis v. Scientific Supply Co., 897 P.2d 905 (Colo.App. 1995) (in the interest of judicial economy, court treats a motion to withdraw an admission of liability as the “equivalent” of a petition to reopen); Osborne v. Industrial Commission, 725 P.2d 63 (Colo.App. 1986) (ALJ not required to dismiss petition to reopen where the claimant failed to file an accompanying medical report which complied with the requirements of Rule X).
Nevertheless, the statute does require sufficient notice that an ALJ intends to consider the issue of reopening. Under the circumstances present here, we conclude sufficient notice was provided to the claimant that the overpayment issue would be considered.
The respondent endorsed the overpayment issue in its Response to the Application for Hearing and reasserted the issue at the commencement of the hearing on June 5, 2002. (Tr. p. 11). The claimant’s counsel did not allege surprise and did not object to the ALJ’s consideration of the issue. Indeed, counsel for the claimant and the respondent engaged in a lengthy exchange at the hearing about the specific basis for the alleged overpayment. (Tr. pp 12-14). Thus, the reopening issue was tried with the apparent consent of the parties. See Robbolino v. Fischer-White Contractors, 738 P.2d 70 (Colo.App. 1987).
Although the ALJ made no specific findings of fact or conclusions of law on the overpayment issue, the claim was presented on stipulated facts. Consequently, the issue is one of law and it is not necessary to remand the matter to the ALJ for the entry of an order on the issue. See Schreiber v. Brown Root, Inc., 888 P.2d 274 (Colo.App. 1993) (where undisputed facts lead to only one conclusion the issue is a question of law).
Section 8-40-201(15.5), C.R.S. 2003, defines “overpayment” as money received by
“a claimant that exceeds the amount that should have been paid, or which the claimant was not entitled to receive, or which results in duplicate benefits because of offsets that reduce disability or death benefits payable under said articles. For an overpayment to result, it is not necessary that the overpayment exist at the time the claimant received disability or death benefits under said articles.”
Here, the parties stipulated that the decedent was entitled to periodic payments from August 19, 2002 to September 14, 2002, which equals 3.86 weeks. (Tr. p. 9). Because we have concluded that the unaccrued PPD award was forfeited upon the decedent’s death, we hold that the claimant is only entitled to retain the value of PPD benefits the decedent was entitled to receive before her death.
The respondent’s Final Admission of Liability admitted liability for PPD benefits based on 14 percent whole person impairment for an aggregate award of $27,785.72. However, the respondent asserted an overpayment of temporary disability benefits in the amount of $954.18, which was subtracted from the aggregate award resulting in an admitted balance of $26,831.54. The respondent then admitted liability for periodic payments at the rate of $354.90 per week commencing August 19, 2002 and continuing through January 24, 2004. (See Claimant’s Hearing Exhibit 1; Respondent’s Hearing Exhibit B). At the rate of $354.90 per week, the decedent was entitled to $1369.91 between August 19, 2002 and her date of death. (3.86 x $354.90). The respondent made a periodic payment of $1,064.70 on September 4, 2003, leaving a balance due of $305.20.
Pursuant to § 8-42-107(8)(d), C.R.S. 2003, the respondent also made a lump sum payment in the amount of $9981.05. Therefore, the respondent overpaid benefits in the amount of $9,675.85 ($9981.05 -$305.20). Cf.
§ 8-42-103(1)(d)(IV), C.R.S. 200 ; University of Denver v. Industrial Commission, 138 Colo. 505, 335 P.2d 292 (1959); Schenfeld v. Shaffer, supra, (decided under predecessor statute, maximum death benefits must be offset by amount of lump sum payment). Therefore, the respondent is entitled to recover an overpayment of $9,675.85, and the ALJ’s order shall be modified accordingly.
IT IS THEREFORE ORDERED that the ALJ’s order dated July 2, 2003, is modified to provide that the respondent may recover overpaid permanent partial disability benefits in the amount of $9,6575.85. As modified, the ALJ’s order is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ Kathy E. Dean
______________________________ Dona Halsey
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. 2003. 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, Tower 3, Suite 350, Denver, CO 80202.
Copies of this order were mailed to the parties at the addresses shown below on November 19, 2003 by A. Pendroy.
Sylvia Cooper, 4362 Ceylon St., Denver, CO 80249
Debbie Dunst, Safeway, Inc., P.O. Box 5927 T.A., Denver, CO 80217
Debbie Dunst, Safeway, Inc., 6900 S. Yosemite, Englewood, CO 80112
Neil D. O’Toole, Esq., 226 W. 12th Ave., Denver, CO 80204-3625 (For Claimant)
Douglas A. Thomas, Esq., 5600 S. Quebec St., #130-D, Greenwood Village, CO 80111 (For Respondent)