W.C. No. 4-758-351.Industrial Claim Appeals Office.
December 8, 2010.
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Friend (ALJ) dated July 26, 2010, that ordered the insurer to pay certain partial dependents benefits. We affirm.
The worker, Juan Ruiz a/k/a Jose Antonio Morales Figuerora, was fatally injured in an industrial accident when a block wall collapsed on him. A primary issue for hearing was calculation of the appropriate amount of death benefits to be paid to the decedent’s parents as partial dependents. The parties stipulated that the claimant’s temporary total disability (TTD) rate was $516.86. The ALJ found that the decedent provided 91 percent of the total income of his parents. Ninety one percent of the TTD rate of the decedent is $470.34. Therefore, the ALJ found that the dependents were entitled to 91 percent of his disability benefits, or $470.34 per week. The ALJ further found that the respondents had established by a preponderance of the evidence that the decedent willfully violated a safety rule, and that the violation resulted in the accident. The ALJ allowed the insurer to reduce the benefits payable to the dependents by fifty percent. However, because the issue of safety rule is not under appeal and because its inclusion needlessly complicates the discussion of the correct amount of partial dependent benefits due, we exclude the effect of the safety rule from consideration in the rest of our order.
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The respondents bring this appeal contending that the ALJ incorrectly determined that the dependents should receive 91 percent of the decedent’s TTD rate. Section 8-42-119 C.R.S. deals with the compensation to be paid to partial dependents. In relevant part § 8-42-119 provides as follows:
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 director has power and discretion to determine the proper elements to be considered as income of said dependents in each particular case.
I.
The respondents first contend that some of the benefits directed to be paid to the dependents will in fact be given to the youngest child of the dependents. Therefore, citing, Vaughn v. Industrial Commission, 79 Colo. 257, 245 P. 712 (1926), the respondents argue that the payment to the identified dependents is merely a “pass through” to a non-dependent in violation of the Workers’ Compensation Act (Act). It is true that in Vaughn the court stated that only dependents can receive compensation. However, that was in the context of the court’s determining that a wife, voluntarily living apart from husband was not dependent on him, and so not entitled to compensation. In our view the respondents’ reliance on Vaughn is misplaced because it has nothing to do with how partial dependents dispose of benefits awarded them under the Act.
We apply the ordinary rules of statutory construction. The purpose of statutory construction is to affect the legislative intent. Because the best indicator of legislative intent is the language of the statute, words and phrases in a statute should be given their plain and ordinary meanings. Weld County School District RE-12 v. Bymer, 955 P.2d 550 (Colo. 1998). We do not read § 8-42-119 as containing any restriction on what the dependents may do with the money awarded to them under the Act.
II.
The respondents, next citing Spoo v. Spoo 145 Colo. 268, 358 P.2d 870 Colo. 1961, contend that the ALJ failed to properly calculate the correct amount of benefits to be paid to the dependents. The respondents argue that under Spoo ALJs are given apportionment power which should be used to maintain the “status quo” of dependents. The respondents argue that the ALJ erred in awarding benefits beyond those necessary to keep the dependents at status quo.
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Spoo involved the division of death benefits between a widow and minor children, who were living with their mother who had been divorced from the decedent. In our view Spoo is not relevant to the present case. Rather, the present case involves a determination, under § 8-42-119, of the average amount of the wages regularly contributed by the deceased to partial dependents for a reasonable time immediately prior to the injury and what that contribution bore to the total income of the dependents during the same time.
The ALJ found that during the decedent’s two months of employment prior to his death he had contributed $2,788.00 to the dependents in seven payments. The ALJ determined that this amount had a value of $29,301.88 pesos. These specific findings do not appear to be challenged. In any event substantial evidence in the record supports such determination and so is binding on us. Exhibit 3 at 5; Feguearo Depo at 7. Section 8-43-301(8), C.R.S. The ALJ also found that the dependent’s income during that period was $32,120.08 pesos. This amount is not challenged. We note that 29,301.88 divided by 32,120.08 yields approximately 91 percent.
The respondents argue that the decedent supplied only 84.5 percent of the dependents’ income rather than the 91 percent calculated by the ALJ. The respondents argue that the dependents received seven payments totaling $2,788.00 and one of the dependents testified that the decedent made payments every two weeks. As we understand the respondents’ argument, they contend that rather than looking at the time in question as two months, the ALJ should have considered the time period as being 14 weeks. Utilizing 14 weeks instead of two months the contribution would be 84.5 percent. We are not persuaded that the ALJ erred.
Here the undisputed facts are that the decedent began employment on March 1, 2008 and died on April 30, 2008. The ALJ determined that under § 8-42-119 this two month period of employment was a reasonable time immediately prior to the injury that could be used in considering what the average amount of wages regularly contributed by the deceased bore to the total income of the dependents. In our view, this is a reasonable inference to be drawn from the record. That the calculation could have been done differently affords us no basis upon which to grant appellate relief.
As we understand the respondents’ final argument they contend that under the ALJ’s calculation the dependents here would receive $470.34 per week. The respondents then assert once again that the $2,788 contributed by the decedent must be viewed as having occurred over 14 weeks period which would mean the decedent provided income of only a total of $199.14 a week. The respondents then concluded that this leads to the absurd result of the dependents receiving twice as much per week in benefits than they actually received from the decedent.
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We again reject the argument that the period in question must be viewed as a 14 week period rather then the approximate two months that the claimant worked for the employer. Next we note that § 8-42-119 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 the total income of the dependents during the same time. Here the ALJ, with record support found that the average amount of wages contributed by the deceased to the total income of the dependents was 91 percent. When this 91 percent is applied to the TTD rate of $516.86 it yields the figure of $470.34. We note that the TTD rate was stipulated to be $516.86.
The $470.34 weekly dependent benefit awarded by the ALJ equals a monthly benefit of $2,038.14. Comparing the $2,788 the dependents received from the decedent over two months, or a monthly contribution of $1,394, we realize that the monthly dependent benefits will exceed the amount the dependents actually received from the decedent.
The fact that the benefit granted the dependents here exceeds the money sent to them by the decedent results from the use of 91 percent of the TTD rate rather than 91 percent of the money actually sent. In our view the percentage must be applied to the TTD rate rather then the actual money sent. If dependents’ benefits are divorced from the TTD rate, then in cases where the weekly amount contributed by the decedent to the dependents exceeded the TTD rate, the dependent benefits could exceed the TTD rate. We do not believe this was the intent of the General Assembly.
Again, the best indicator of legislative intent is the plain and ordinary meaning to be given the language of the statute. Weld County School District RE-12 v. Bymer, supra. Section 8-42-119 directs that partial dependents receive that portion of benefits contributed by the deceased compared to the total income of the dependents as provided to those “wholly dependent.” The amount of benefits provided to “wholly dependent” claimants is the TTD rate. Section 8-42-114 C.R.S; see also § 8-42-115 C.R.S. The maximum rate of compensation for death benefits is “ninety-one percent of the state average weekly wage.” Section 8-42-114, C.R.S.; See Brandt v. Bill’s Tool Rental, W. C. No. 4-511-128 (August 21, 2003). We further note that if this had been a case where the claimant was wholly dependent, the claimant would receive the entire $516.86 in a fatal case regardless of what the income of those dependents was. Section 8-42-114 C.R.S;
Reading section § 8-42-119 (partial dependents) with § 8-42-114 (wholly dependent) we understand them to direct calculation of benefits owed to partial dependents to be made by first determining that portion of benefits contributed by the deceased compared to the total income of the dependents and apply that percentage to the
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TTD rate. Therefore, we see no reversible error in an award of benefits based on the use of the percentage contributed to the decedent’s income applied to the TTD rate even if that form of calculation would in some cases result in dependent’s receiving more in benefits then they actually have received from the decedent. To interpret the statute as requiring the percentage to be applied to the actual amount sent to the partial dependents, would in some cases result in partial dependents being awarded larger dependent benefits than wholly dependent individuals would be entitled to receive. We parenthetically note that this calculation is without the reduction for safety rule which we think is not relevant to the issue of whether partial dependents can receive in benefits more than the actual amount given to them by the decedent.
IT IS THEREFORE ORDERED that the ALJ’s order dated July 26, 2010 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ Curt Krikscium
______________________________ Thomas Schrant
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ESA, INC., 116 GATEWAY DR, P O BOX 1370, NORTH SIOUX CITY, SD, 57049-1370 (Employer).
COMMERCE INDUSTRY INS., Attn: MARK LEWIS, C/O: AIG DOMESTIC CLAIMS, P O BOX 25971, SHAWNEE MISSION, KS, 66225 (Insurer).
CASTENADA LAW OFFICE, Attn: J J FRASIER, ESQ., 1120 LINCOLN STREET, SUITE 703, DENVER, CO, 80203 (For Claimant).
SENTER, GOLDFARB RICE, LLC, Attn: WILLIAM M. STERCK, ESQ., 1700 BROADWAY, SUITE 1700, DENVER, CO, 80290 (For Respondents).
ESA, INC., Attn: DAVE JOHNSON, 10731 MOCKING BIRD DRIVE, OMAHA, NE, 68127 (Other Party).
CONTINENTAL WESTERN GROUP, Attn: MYRON PETERSON, C.P.C.U, C/O: CASUALTY CLAIMS SPECIALIST, P O BOX 6416, LINCOLN, NE, 68506 (Other Party 2).
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