W.C. No. 4-168-841Industrial Claim Appeals Office.
February 28, 1996
FINAL ORDER
The claimants are the dependents of Anthony Nunnally (deceased). The claimants seek review of an order of Administrative Law Judge Friend (ALJ) which denied their claim for “permanent partial disability benefits.” We affirm.
The deceased sustained a compensable injury in March 1993. In January 1994, he underwent back surgery. However, the decedent committed suicide on May 7, 1994. It was previously determined that the suicide was causally connected to the industrial injury and the dependents are receiving death benefits.
Prior to the decedent’s death, the treating physician had not determined that the decedent was at maximum medical improvement (MMI) from the industrial injury. However, on May 27, 1994, the physician issued a report estimating that the claimant would have experienced a permanent medical impairment of eighteen percent of the whole person had he lived. On August 15, 1994, the physician reported that ten percent of the estimated impairment was attributable to a surgically treated disc, and eight percent to lost range of motion.
Under these circumstances, the ALJ concluded that the claimants are not entitled to any “permanent partial disability benefits” pursuant to § 8-42-107(8), C.R.S. (1995 Cum. Supp.). Instead, the ALJ concluded that the claim is governed by § 8-41-503(2), C.R.S. (1995 Cum. Supp.), which provides that, on the death of a claimant entitled to compensation, the dependents are entitled to receive “any accrued and unpaid portion of the compensation or benefits up to the time of the death of such employee.” The ALJ stated that the term “accrued” means “come into existence as an enforceable claim.” Thus, the ALJ concluded that the decedent’s right to permanent partial disability benefits had not “come into existence” at the time of his death because he had not reached MMI.
On review, the claimants make two related arguments. First, they assert that the ALJ lacked “jurisdiction” to “alter” the treating physician’s opinions concerning MMI and permanent impairment. They further argue that, in any event, the decedent was at MMI when he committed suicide, and therefore, his right to permanent disability benefits vested at that time. We reject these arguments.
The ALJ correctly held that this claim is governed by § 8-41-503(2), which applies in situations where a claimant who is entitled to compensation dies leaving dependents. Conversely, this is not a situation governed by § 8-42-107(8)(b) or (c), C.R.S. (1995 Cum. Supp.), because the authorized treating physician never determined that the claimant was at MMI prior to his death. Thus, the provisions of § 8-42-107(8) were never triggered.
It follows that the ALJ did not “alter” findings of the treating physician concerning MMI or permanent medical impairment. The ALJ merely determined that such findings were irrelevant because the treating physician did not determine that the claimant reached MMI prior to his death. Since no such determination was made by the treating physician, the claimants’ “jurisdictional” argument is without merit.
Moreover, the ALJ’s conclusion that the claimants are not entitled to permanent disability benefits is in accordance with § 8-41-503(2) and applicable case law. Under § 8-41-503(2), surviving dependents of the deceased are entitled to any compensation which the decedent would have received “up to the time of the death.” This is true regardless of whether the right to such benefits has been adjudicated at the time of death. See Estate of Huey v. J. C. Trucking, Inc., 837 P.2d 1218 (Colo. 1992).
Here, there is no evidence that the decedent reached MMI prior to his death, and therefore, that he was entitled to permanent partial disability benefits under § 8-42-107(8)(c). Therefore, there was no accrued compensation to which the dependents became entitled under § 8-41-503(2). The theory that the decedent reached MMI at the time he died does not change the fact that no right to permanent disability benefits had accrued prior to his death.
IT IS THEREFORE ORDERED that the ALJ’s order, dated October 19, 1995, is affirmed.
INDUSTRIAL CLAIM APPEAL PANEL
___________________________________ David Cain
___________________________________ Bill Whitacre
NOTICE
This Order is final unless an action to modify or vacate the Order iscommenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver,Colorado 80203, by filing a petition to review with the court, withservice of a copy of the petition upon the Industrial Claim Appeals Officeand all other parties, within twenty (20) days after the date the Orderwas mailed, pursuant to §§ 8-43-301(10) and 307, C.R.S. (1995 Cum.Supp.).
Copies of this decision were mailed February 28, 1996 to the following parties:
Anthony B. Nunnally, 728 Cherry St., Ft. Collins, CO 80521-1913
Wal-Mart Distribution Center, Attn: Marti Dean, R.N., 7500 E. Crossroads Blvd., Loveland, CO 80538
Wal-Mart Stores, Inc., P.O. Box 116, Bentonville, AR 72712-0116
National Union Fire Ins. of Pittsburgh, P.O. Box 32130, Phoenix, AZ 85018
Claims Management, Inc., Attn: Merry Jones, P.O. Box 1288, Bentonville, AR 72712-1288
Richard K. Blundell, Esq., 800 Eighth Ave., Ste. 202, Greeley, CO 80631 (For the Claimant)
Richard A. Bovarnick, Esq., 5353 W. Dartmouth Ave., Ste. 400, Denver, CO 80227 (For the Respondents)
By: __________________________