Opinion
No. 76-598
Decided April 28, 1977. Rehearing denied May 19, 1977. Certiorari denied August 15, 1977.
Employer and its workmen's compensation insurer sought review of Industrial Commission's refusal to suspend benefit payments to widow of deceased employee after her remarriage and after settlement of her wrongful death action against third-party tortfeasor.
Order Set Aside
1. WORKERS' COMPENSATION — Wrongful Death Settlement — Children's Share — Entitlement — Established by Stipulation — Suspension of Insurer's Payments — Denial Improper. Since, by stipulation, children of deceased employee were entitled to share in settlement obtained by wife of decedent in wrongful death action against third-party tortfeasor, Industrial Commission order denying workmen's compensation insurer's motion to suspend payment of further benefits was improper and must be set aside.
2. WRONGFUL DEATH — Wife — Obtained Settlement — Children — Entitled to Share — Matter of Law. Where wife of deceased employee obtained wrongful death settlement from third party tortfeasor, the children of the deceased employee were entitled as a matter of law to share in that settlement.
3. WORKERS' COMPENSATION — Wrongful Death Settlement — Children's Share — Established — Not Paid — Order Suspending of Insurer's Payments — Not Premature. Since children's entitlement to share of settlement obtained in wrongful death action against third- party tortfeasor had been established by court decree, and since, although the settlement had not been paid, the order incorporating the settlement provided for its deposit in an interest-bearing deposit pending determination of the proper allocation between wife of decedent and the children, Industrial Commission order suspending workmen's compensation insurer's payments would not have been premature.
4. Recovery from Third-Party — Termination of Benefits — Wrongful Death Settlement — Children's Share — Exceed Benefits — Order of Termination — Should Enter. Although not expressly provided for in the statute, workmen's compensation claimant's recovery from a third-party tortfeasor can result in termination of further payment of workmen's compensation benefits, and where the children's share of wrongful death settlement exceeded the workmen's compensation benefits awarded, an order permanently suspending compensation should be entered.
5. Wrongful Death Settlement — Exceed Benefits Awarded — Insurer — Entitled to Recover — Benefits Paid. Where wrongful death settlement exceeded benefits awarded workmen's compensation claimants, workmen's compensation insurer is entitled to recover the benefits it has previously paid those claimants.
Review of Order of the Industrial Commission of the State of Colorado
Sheldon, Bayer, McLean Glasman, P.C., Richard H. Glasman, for petitioners.
J. D. MacFarlane, Attorney General, Jean E. Dubofsky, Deputy Attorney General, Edward G. Donovan, Assistant Attorney General, John Kezer, Assistant Attorney General, for respondent Industrial Commission of the State of Colorado.
Frickey, Cairns Wylder, P.C., Earl S. Wylder, for claimants-respondents.
Petitioners, an employer and its workmen's compensation insurer, seek review of an order of the Industrial Commission denying their motion to suspend permanently support payments to the dependents of Eddie Joe Gillit, deceased. We set aside the order, and remand for further proceedings.
Eddie Joe Gillit was killed when the company truck he was driving collided with a vehicle driven by a third-party. His wife, Barbara Ann Gillit, filed an election to seek workmen's compensation benefits for herself and for decedent's two minor children. The Industrial Commission awarded compensation benefits for funeral and medical expenses, and for support. Some support payments were made. Subsequently, Barbara Ann Gillit remarried and a wrongful death action brought by her against the third-party was settled for $55,000. The petitioners then sought permanent suspension of support payments, but initially they made no request for repayment of benefits previously paid.
The referee entered an order denying the motion. He further ordered that because of Barbara Ann Gillit's remarriage, the remaining benefits be used solely for the support of the children. See § 8-50-106, C.R.S. 1973. The referee's principal rationale was that no showing had been made regarding the minor childrens' entitlement to share in the proceeds of the wrongful death settlement. The referee also questioned whether Barbara Ann Gillit's election was binding on her children.
The insurer then filed a petition for review with the Industrial Commission. In this petition, petitioners sought recovery through subrogation of all previously paid benefits in addition to suspension of compensation payments. This request was based on § 8-52-108(1), C.R.S. 1973, which provides that, upon claimant's election to seek workmen's compensation benefits, the insurer is subrogated to the claimant's rights against third-party tortfeasors to the extent of benefits paid. The insurer argues that the wrongful death settlement inured, as a matter of law, to the minor dependents, see § 13-21-201(2), C.R.S. 1973, and therefore, that the insurer was entitled to recover out of the settlement the amount of benefits previously paid. See, e.g., Kirkham v. Hickerson Bros. Truck Co., 29 Colo. App. 303, 485 P.2d 513 (1971).
The Industrial Commission affirmed the referee's order denying the motion to suspend, thereby also denying recovery of prior payments. The insurer's petition for review of this order was accompanied by a copy of a court order establishing the entitlement of the children to fifty percent of the wrongful death recovery. Despite this evidence of entitlement, the Industrial Commission entered its final order affirming the referee's order.
[1] This order must be set aside. Stipulations which appear in the record sufficiently establish the entitlement of the children to share proportionately in the wrongful death settlement. Although this sum has not yet been paid to the claimants, the order incorporating the settlement provided for deposit of the sums into an interest-bearing account pending determination of the proper allocation between Mrs. Gillit and the insurer. The children would be entitled to share in the settlement as a matter of law. Clint v. Stolworthy, 144 Colo. 597, 357 P.2d 649 (1960). However, inasmuch as the childrens' entitlement had been established by court decree, it was not necessary in this case for the Commission to construe the wrongful death statute in order to support suspension of compensation payments. Hence, appellees' contention that suspension would be premature is without merit.
[2-4) Appellees also contend, however, that termination of compensation benefits upon a claimant's recovery from third-party tortfeasors is not expressly provided for by § 8-50-106, C.R.S. 1973. However, this statute does not explicitly provide that termination cannot occur for reasons other than those enumerated, see Claimants in re the Death of Hampton v. Director of the Division of Labor, 31 Colo. App. 141, 500 P.2d 1186 (1972), and the propriety of termination under the present circumstances is implicit in § 8-52-108, C.R.S. 1973. The absence of such a limitation in § 8-50-106, C.R.S. 1973, is significant. See Central Surety Insurance Corp. v. Industrial Commission, 94 Colo. 341, 30 P.2d 253 (1934). Thus, a claimant's recovery from a third-party tortfeasor can also result in termination, and, where the childrens' share of the settlement exceeds compensation benefits awarded, an order permanently suspending compensation payments should therefore be entered on remand.
[5] The insurer also seeks recovery of payments previously paid. Entitlement to such recovery is established. See Kirkham v. Hickerson Bros. Truck Co., supra. However, except for payment of $1,000 for funeral expenses, there is no evidence in the record regarding the precise amount of such disbursements. Since the reimbursement to which the insurer is entitled cannot be established by the record before us, we remand to the Industrial Commission in order that evidence of such disbursements may be received, and an order entered thereon.
Order set aside and cause remanded for further proceedings not inconsistent with this opinion.
JUDGE BERMAN and JUDGE STERNBERG concur.