Opinion
W.C. No. 4-263-037
August 9, 1996.
The respondents seek review of an order of Administrative Law Judge Erickson (ALJ) which awarded death benefits, and imposed penalties for the respondents' failure timely to admit or deny liability. We set aside the order, and remand the matter to the ALJ for entry of a new order.
Marvin Thielsen (decedent) worked for Rockwell International Company (Rockwell) between 1955 and 1984, at which time he took a service retirement. In 1988 the decedent was diagnosed with chronic beryllium disease. The respondents admitted liability for the disease and paid medical benefits. On July 10, 1995 the decedent died, leaving Deanna Thielsen (claimant) as his only dependent.
From conflicting medical evidence the ALJ determined that the beryllium disease was a significant and proximate cause of the decedent's death. In so doing, the ALJ credited the testimony of Dr. Jabour who stated that the decedent's death was the result of four major causes 1) pancreatitis causing diabetes; 2) chronic obstructive pulmonary disease (COPD) and berylliosis; 3) heart disease, and 4) anemia. Dr. Jabour also stated that beryllium was a major factor in causing the decedent's lung disease. Further, the ALJ was persuaded by Dr. Jabour's testimony that the "Prednisone" treatment of the berylliosis complicated and aggravated the decedent's diabetes and heart conditions. Consequently, the ALJ determined that the "trigger" of the decedent's death was the beryllium disease because it caused the decedent to die sooner than he otherwise would have.
The ALJ also determined that the decedent's average weekly wage at the time of the injury was $532.40. Therefore, the ALJ awarded death benefits at a rate of $354.93 per week, or $50.70 per day less applicable offsets. Further, the ALJ imposed a penalty equal to one day's compensation for each of the 28 days that the respondents failed timely to admit or deny liability for death benefits.
I.
On appeal the respondents first contend that there is not substantial evidence in the record to support the ALJ's finding of a causal relationship between the decedent's death and his occupational disease. In support the respondents rely upon Dr. Newman's opinion that the claimant suffered from a "very mild beryllium disease," as well as the evidence that at least some of the medical problems which contributed to the decedent's death were unrelated to the beryllium disease.
As correctly stated by the ALJ, the claimant was not required to prove that the occupational disease was the sole cause of her husband's death. Instead, the claimant was required to prove that the occupational disease was a "significant" causative factor, which triggered the death. See Subsequent Injury Fund v. State Compensation Insurance Authority, 768 P.2d 751 (Colo.App. 1988) ; Seifried v. Industrial Commission, 736 P.2d 1262 (Colo.App. 1986).
Notwithstanding the respondents' arguments, the ALJ's pertinent findings are amply supported by Dr. Jabour's testimony. (Jabour Depo. pp. 10, 11, 13, 15, 17, 19, 23-24, 28). Furthermore, as expressly noted by the ALJ Dr. Jabour's testimony is buttressed by Dr. Newman's report that the Prednisone adversely affected the decedent's other medical problems. Therefore, we must uphold the ALJ's findings, and it is immaterial that the record contains some medical evidence which, if credited, might support a contrary result. Section 8-43-301(8), C.R.S. (1995 Cum. Supp.); F.R. Orr Construction v. Rinta, 717 P.2d 965 (Colo.App. 1985).
Furthermore, the ALJ's findings support his determination that the occupational disease was the proximate cause of the decedent's death. See 1 Larson, Workmen's Compensation Law, § 12.26 (1995) ("To hasten death is to cause it."). Consequently, we may not disturb the ALJ's determination that the claimant is entitled to an award of death benefits. Section 8-41-301(1)(c), C.R.S. (1995 Cum. Supp.).
II.
The respondents next contend that the ALJ misapplied the law in calculating the amount of death benefits based upon the decedent's average weekly wage in 1984. Because the ALJ misapplied the law, we set aside the award and remand the matter to the ALJ for a redetermination of the amount of death benefits due the claimant.
Here, the ALJ interpreted Richards v. Richards Richards, 664 P.2d 254 (Colo.App. 1983), as holding that "the amount of death benefits payable to dependents is determined by the law in effect at the time of death, regardless of when the injury occurred." Because the decedent died in July 1995, the ALJ reasoned that § 8-42-102(2), C.R.S. (1995 Cum. Supp.) governs the claim for death benefits. Section 8-42-102(2) provides that the average weekly wage shall be computed based on the deceased employee's rate of remuneration "at the time of the injury." Consequently, the ALJ concluded that the claimant's death benefits must be based upon the decedent's rate of remuneration on the last day the decedent worked for Rockwell in 1984.
However, under the "rule of independence," disability benefits awarded to an injured worker and death benefits awarded to the worker's dependents constitute separate and distinct rights. Hoffman v. Industrial Claim Appeals Office, 872 P.2d 1367, 1370 (Colo.App. 1994); citing State Compensation Insurance Authority v. Industrial Commission, 724 P.2d 679 (Colo.App. 1986); Metro Glass Glazing, Inc. v. Orona, 868 P.2d 1178 (Colo.App. 1994). Disability benefits are intended to benefit the injured worker, and death benefits are awarded upon the worker's death for the benefit of his dependents. Richards v. Richards Richards, supra; 2 A. Larson, Workmen's Compensation Laws, § 64.00 (1995). Consequently, in Metro Glass Glazing, Inc. v. Orona, supra, the court held that death benefits could not be offset by Social Security Disability Insurance benefits which terminated upon the death of the deceased employee.
Section 8-42-114 C.R.S. (1995 Cum. Supp.) [formerly § 8-50-103 C.R.S. (1986 Repl. Vol. 3B)], provides that death benefits are to be based upon the "deceased employee's average weekly wages." However, the statute does not prescribe the date or period of time to be used in determining the decedent's average weekly wage. State Compensation Insurance Authority v. Industrial Commission, supra. Applying the "rule of independence," the Court of Appeals interpreted the predecessor to § 8-42-114 to require that death benefits be based on the deceased worker's average weekly wage at the time of death. State Compensation Insurance Authority v. Industrial Commission, supra.
Section 8-42-114 and the predecessor statute also provide that death benefits may not be less than twenty-five percent of the maximum state average weekly wage. Thus, in Richards v. Richards Richards, supra, the court applied the rule of independence to require that the state average weekly wage in effect at the time of the worker's death governs the minimum death benefit rate.
However, as explained by the court in State Compensation Insurance Authority v. Industrial Commission, supra, the Richards holding does not address the circumstances presented here. The following language from State Compensation Insurance Authority v. Industrial Commission, 724 P.2d at 681, concerning the predecessor to § 8-42-102(2), is instructive:
"Section 8-47-101(3) C.R.S. addresses only the relatively common situation in which the employee is killed at the time of the accident, and does not cover the situation at issue here, in which death occurred at a later time, after the employee had returned to work. Accordingly, applying the rule of independence and the rationale of Richards, we hold that, for purposes of determining a dependent's death benefits, the employee's average weekly wage should be calculated as of the date of his death, and not the date of injury."
Relying upon this analysis, the court upheld an award of death benefits based upon the decedent's average weekly wage as of his death in January 1983, and not the decedent's lower wage at the time of the 1980 industrial injury.
Accordingly, we conclude that the ALJ misapplied the holding in Richards, and incorrectly concluded that death benefits are not to be based upon the deceased employee's average weekly wage at the time of death. Due to the ALJ's erroneous application of the law, his findings of fact are insufficient to ascertain whether he erred in awarding death benefits based upon an average weekly wage of $532.40. Therefore, we must remand the matter to the ALJ for a redetermination of the decedent's average weekly wage and the claimant's corresponding rate of death benefits. The ALJ shall issue specific findings of fact which articulate the basis for his determination.
For purposes of our remand we also note that § 8-42-102(3), C.R.S. (1995 Cum. Supp.) affords the ALJ wide discretion in calculating the average weekly wage under circumstances where the injured worker "has been ill" or if, "for any other reason," the methods set forth in subsection 8-42-102(2) will not result in a fair computation of the average weekly wage. See Coates, Reid Waldron v. Vigil, 856 P.2d 850 (Colo. 1993). In this regard, the mere fact that the decedent voluntarily retired from his pre-injury employment does not compel the conclusion that the decedent is entitled to minimum death benefits. Cf. El Paso County Department of Social Services v. Donn, 865 P.2d 877 (Colo.App. 1993) (voluntary retirement did not preclude award of further disability benefits where condition worsened subsequent to retirement and reestablished causal link between injury and wage loss). Consequently, we previously concluded that an ALJ did not abuse his discretion in calculating death benefits based on the decedent's average weekly wage at the date of injury, rather than the date of death, where the decedent was not working at the time of death due to a prolonged illness resulting from the industrial injury. See Foster v. Ralph Foster Sons, W.C. No. 3-101-998, March 16, 1993.
In remanding the matter we recognize the claimant's argument that the provisions of Senate Bill 91-218 (SB 218) currently codified at § 8-42-102(2) and § 8-42-104 C.R.S. (1995 Cum. Supp.) reflect a legislative intent to overrule State Compensation Insurance Authority v. Industrial Commission, supra, and eliminate the "rule of independence" when calculating death benefits. The claimant contends that the substitution of the word "deceased" for the word "killed" in § 8-42-102(2), and the more restrictive language in § 8-42-104, evidences a legislative intent that a decedent's average weekly wage be based on the employee's earnings at the "time of the injury." We are not persuaded.
As stated by the court in State Compensation Insurance Authority v. Industrial Commission, supra, application of the "rule of independence" is derived from the wording of the death benefit statute, and not the predecessor to § 8-42-102. SB 218 did not amend § 8-42-114. Therefore, we decline to infer from the SB 218 amendments to § 8-42-102(2), that the General Assembly intended to eliminate the "rule of independence" in determining the average weekly wage for death benefits.
Moreover, § 8-42-114 and former § 8-50-103 both refer to the decedent as the "deceased employee." This leads us to believe that the substitution of the term "deceased employee" for the term "killed employee" in § 8-42-102(2) reflects a legislative intent to make § 8-42-102(2) consistent with the death benefit statute, and the rule of independence rather than modify the death benefit statute as suggested by the claimant.
In fact, as noted in State Compensation Insurance Authority v. Industrial Commission, supra, the predecessor statute to § 8-42-102(2) focused on the calculation of the average weekly wage where the worker was immediately killed by the industrial injury, and the rule of independence applies where the death occurs much later. Accordingly, we fail to see how the substitution of the word "deceased" for the word "killed" in § 8-42-102(2) suggests an intend to abandon the rule of independence in death benefit claims.
The claimant's further arguments concerning the amendments to § 8-42-104 are also misplaced. As amended, § 8-42-104 requires that benefits awarded for a second or later injury be based upon the "average weekly wage" at the time of the later injury, and not "the "earning capacity" at the time of the later injury. See Platte Valley Lumber, Inc. v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. No. 93CE0008, February 10, 1994). The purpose of the SB 218 amendments was to ensure that, where the employee suffers successive industrial injuries, the compensation rate for the later injury is not based upon the earning capacity prior to the later injury.
This claim does not involve successive injuries, but rather, one injury and a claim for death benefits. Therefore, we are not persuaded that the SB amendments to § 8-42-104 compel a conclusion that the rule of independence is no longer applicable.
III.
The respondents also contest the ALJ's imposition of penalties at a rate of "one day's compensation" for 28 days in the total amount of $1,419.60. In particular, the respondents contend that they appeared before the ALJ on January 23, 1996, and agreed to submit the disputed issues to the ALJ for adjudication based upon the documentary record, stipulated facts and written position statements. The respondents contend that the claimant "abandoned" or waived the penalty issue by failing to address it in her position statement. We reject this argument.
The defense of "waiver" is itself waived if not raised. Lewis v. Scientific Supply Co., 897 P.2d 905 (Colo.App. 1995); Robbolino v. Fischer-White Contractors, 738 P.2d 70 (Colo.App. 1987) (failure to object was waiver of objection to litigation of issue). The respondents' position statement does not indicate that the waiver argument was raised before the ALJ. Furthermore, the respondents have not provided a transcript of the January 23 hearing. Thus, we seriously doubt that the respondents' argument is properly before us on appeal. See Colorado Compensation Ins. Authority v. Industrial Claim Appeals Office, 884 P.2d 1131 (Colo.App. 1994) (issue may not be raised for the first time on appeal).
Even if the waiver argument were properly before us, we would not be persuaded. The respondents' position statement explicitly argues that the ALJ should not grant the claimant's request for penalties. It follows that the respondents assumed that the claimant had not abandoned her request for penalties. Under these circumstances, we are not persuaded that the claimant's failure to address the penalty issue in her position statement indicates an intentional and voluntary waiver of the claim for penalties. See Johnson v. Industrial Commission, 761 P.2d 1140 (Colo. 1988).
However, because we set aside the award of death benefits, we must necessarily set aside the ALJ's determination that the claimant's "daily rate" of benefits equals $50.70 per day, and that "one day's compensation" for 28 days equals $1,419.60.
On remand the ALJ shall issue a new order concerning penalties which is consistent with his redetermination of the decedent's average weekly wage. Consequently, it is premature to consider the respondents' arguments that the ALJ's findings are insufficient to ascertain the basis for his imposition of penalties at a rate of $50.70 per day.
IT IS THEREFORE ORDERED that the ALJ's order dated March 12, 1996, is set aside, and the matter is remanded to the ALJ for entry of a new order consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
Copies of this decision were mailed August 9, 1996 to the following parties:
Deana Thielsen, 5416 West 66th, Arvada, CO 80003
Dow Chemical/Rockwell International, Workers' Compensation, 2020 W. H. Dow Center, Midland, MI 48674
Kaiser Hill Co., Attn: Al Jerman, P.O. Box 464, Golden, CO 80402-0464
Travelers Ins. Co., Attn: Karen Gilmore, P.O. Box 17360, Denver, CO 80217-0360
Scott Busser, Esq., 300 S. Jackson St., #570, Denver, CO 80209 (For the Respondents)
Joseph M. Goldhammer, Esq., 1563 Gaylord St., Denver, CO 80206 (For the Claimant)
Office of Attorney General, Subsequent Injury Fund, 1525 Sherman St., 5th Flr., Denver, CO 80203
Specials Funds Unit, Attn: Barbara Carter (Interagency Mail)
BY: _______________________