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In re Ward, W.C. No

Industrial Claim Appeals Office
Jul 28, 1995
W.C. No. 4-129-484 (Colo. Ind. App. Jul. 28, 1995)

Opinion

W.C. No. 4-129-484

July 28, 1995


FINAL ORDER

The claimant, Audrey Mae Ward seeks review of an order of Administrative Law Judge Rumler (ALJ Rumler), which reopened the claim, and reapportioned workers' compensation death benefits. We reverse.

A brief procedural history is necessary to understand the appellate issues. Randall D. Ward, (decedent) died on April 15, 1992, as a result of an industrial accident. At the time of his death, his dependents were his wife, Audrey Mae Ward (widow), and his children from a prior marriage, Melissa Ward, Randall Ward II, and Matthew Ward (children). In an order dated, March 18, 1994, Administrative Law Judge Friend (ALJ Friend) apportioned 50 percent of the workers' compensation death benefits to the decedent's widow and the remaining 50 percent to the children.

The children appealed ALJ Friend's apportionment. We affirmed ALJ Friend's order, and the Court of Appeals subsequently upheld our order on April 6, 1995.

In the interim, the children filed a Petition to Reopen the claim based upon a "change in condition." The petition was heard by ALJ Rumler in November 1994. On January 19, 1995, ALJ Rumler determined that "the circumstances have changed" since the hearing before ALJ Friend. Specifically, ALJ Rumler found that Melissa Ward lost financial aid for college and the decedent's widow obtained a child support award for her dependent children of a prior marriage. Consequently, ALJ Rumler granted the Petition to Reopen, and reapportioned the death benefits among the claimants equally, commencing December 14, 1994.

On appeal, the decedent's widow contends that ALJ Rumler lacked jurisdiction to reapportion the death benefits. We agree, and therefore, reverse.

There is no dispute that ALJ Friend's order was a "final order" for purposes of appellate review. Brown Root, Inc. v. Industrial Claim Appeals Office, 833 P.2d 780 (Colo.App. 1991). Further, the widow is correct in stating that in accordance with statutory review procedure, the Court of Appeal had exclusive jurisdiction over ALJ Friend's order, at the time ALJ Rumler entered her order. Thus, ALJ Rumler lacked jurisdiction to retroactively modify or vacate ALJ Friend's order. See Muck v. Arapahoe County District Court, 814 P.2d 869 (Colo. 1991); Southeastern Colorado Water Conservancy District v. Cache Creek Mining Trust, 854 P.2d 167 (Colo. 1993).

However, we do not understand ALJ Rumler's order to grant retroactive relief from ALJ Friend's order. To the contrary, ALJ Rumler's order grants prospective relief from the date of her Summary Order.

Further, the Workers' Compensation Act expressly authorizes an ALJ to grant prospective relief from a "final order," under the reopening statutes currently codified at § 8-43-303 C.R.S. (1994 Cum. Supp.). See Padilla v. Industrial Commission, 696 P.2d 273 (Colo. 1985).); Gregorich v. Industrial Commission, 423 P.2d 886 (1948); Brown Root, Inc. v. Industrial Claim Appeals Office, supra. Section § 8-43-303(1) provides that a claim may be reopened "on the ground of an error, a mistake or a change in condition."

The children concede that their request for the reapportionment of the death benefits is governed by the reopening statute. Therefore, it follows that ALJ Rumler's jurisdiction to reapportion future death benefits is dependent upon whether the claim was properly reopened based upon a "change in condition."

As noted by Professor Larson in his treatise on workers' compensation, "as to the decedent himself in death cases, in the nature of things the concept of change of condition can have no applicability" in a death claim. 3 A. Larson, Workmen's Compensation Law § 81.31(f) 1994. Accordingly, the issue is whether § 8-43-303(1) allows the reopening of a death claim based upon a dependent's "change in condition," and specifically, a change in "economic" conditions.

The Colorado courts have repeatedly construed the term "change in condition" to mean a change in the physical condition of the claimant, and thus, have declined to reopen claims based upon a change in the claimant's "economic" condition. See Lucero v. Climax Molybdenum Co., 732 P.2d 642 (Colo. 1987) ; Loucks v. Safeway Stores, 757 P.2d 639 (Colo.App. 1988); George v. Industrial Commission, 720 P.2d 624 (Colo.App. 1986). However, we recognize that these cases involve injured workers who are living at the time of the petition to reopen. Moreover , these cases involve changes in the economic circumstances of the injured worker. See Lucero v. Climax Molybdenum Co., supra, (petition to reopen based upon layoff after permanent disability award); George v. Industrial Commission, supra. (worsening of silicosis which further impaired earning capacity).

Conversely, we know of no Colorado case, and the children cite none, which discusses a "change of condition" in the context of death benefits. However, we conclude that § 8-43-303(1) does not allow an ALJ to reopen a death benefit claim based upon a change in the "economic" condition of a dependent.

Professor Larson states, that under the majority view, rights to death benefits "are not lost by a subsequent change in the dependent's financial position, nor by any change short of the events" provided by statute such as remarriage or attainment of a specified age. Workmen's Compensation Law § 64.43. Professor Larson noted that "[W]hile this may produce occasional results inconsistent with the spirit and purpose of compensation protection, the administrative convenience of crystallizing of rights as of some definite date once and for all probably counterbalances this objection." Consequently, the majority of states do not allow a modification of death benefits based upon economic changes such as employment, inheritance, or being supported by another without the benefit of marriage. Worker's Compensation Law § 64.43.

The Colorado Workers' Compensation Act (Act) contains specific statutory language concerning the termination of death benefits in the event of remarriage, age, time or the death of a dependent. Sections 8-42-117 thru 8-42-120 C.R.S. (1994 Cum. Supp.). However, neither the Act nor the Rules of Procedure expressly provide for a reapportionment of death benefits based upon other types of changes. See § 8-42-121 C.R.S. (1994 Cum. Supp.). Consequently, we believe Colorado falls within the majority rule that death benefits are not subject to modification except upon the occurrence of the events expressly enumerated in the statute.

Our conclusion is buttressed by the Supreme Court's reasoning in Lucero v. Climax Molybdenum Co., 732 P.2d at 646, which held that the term "change in condition" excludes economic changes. The Lucero court stated that this construction is consistent with the interpretation given the term by states having similar statutes. The Lucero court also noted that "those few states that permit reopening of awards based on a change of economic circumstances have developed varying formulations of this principle and the limitations upon it."

Admittedly, Lucero did not involve a claim for death benefits. However, the Supreme Court further stated that, had the Colorado General Assembly disapproved of the cases which construed "change in condition" to require proof of a "physical" change, the legislature could have amended the predecessor statute, § 8-53-119 C.R.S. (1982 Cum. Supp.), to allow the reopening of awards on the basis of an "economic" change in condition. Because it is the legislature's duty to write the laws, and the General Assembly did not elect to amend the statute in this manner, the Supreme declined to infer such an intent. Lucero v. Climax Molybdenum Co., 732 P.2d at 646. In so doing, the Supreme Court expressly relied upon the language in Southern Wooden Box Co. v. Smith, 5 Ark App. 14, 19-20, 631 S.W.2d 620, 623 (1982) that:

"if fluctuating economic changes are to be made part of our formula in determining benefits, this is a policy question best left to our Arkansas General Assembly to address."

We conclude similarly that, had the General Assembly intended to allow death benefits to be reopened upon a fluctuation in economic conditions, it could have adopted specific language to achieve that objective. We have no authority to infer such an intent in the absence of express statutory language. See Kraus v. Artcraft Sign Co., 710 P.2d 480 (Colo. 1985); see also City County of Denver v. Industrial Commission, 690 P.2d 199 (Colo. 1984) (where legislature did not extend SIF liability to include prior nonindustrial impairments to further goal of enhancing employment opportunities for disabled workers, court would not do so by judicial legislation).

Accordingly, we conclude that, in the context of § 8-43-303, the term "change in condition" does not include a change in the economic conditions of a death benefit recipient, and the ALJ's order reopening the claim is not supported by the applicable law. Therefore, the ALJ lacked jurisdiction to reapportion the death benefits.

IT IS THEREFORE ORDERED that the order of ALJ Rumler dated January 19, 1995, is reversed. The petition to reopen based upon a change in condition is denied.

INDUSTRIAL CLAIM APPEALS PANEL

____________________________________ David Cain

____________________________________ Kathy E. Dean
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, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date this Order is mailed, pursuant to section 8-43-301(10) and 307, C.R.S. (1994 Cum. Supp.).

Copies of this decision were mailed July 28, 1995 to the following parties:

Audrey Mae Ward, 1258 Kiteley Rd., Longmont, CO 80503

Melissa Ward, Randall Ward II, Matthew Ward, c/o Teresa A. Ward, 2650 First St., Apt. 131 Napa, CA 94558

Apex Heating and Air Conditioning, 500 County Road, Louisville, CO 80224-9305

Carolyn A. Boyd, Esq. and Robert Reeves, Esq., Colorado Compensation Insurance Authority Interagency Mail

Patricia J. Clisham, Esq. and Barbara Schuman Heckler, Esq., 1200 17th St., #1700, Denver, CO 80202 (For the Claimants Melissa Ward, Randall Ward II, and Matthew Ward)

David R. DiGiacomo, Esq., Gerald H. Jaggers, Esq. and Douglas J. Perko, Esq., 5460 Ward Rd., #300 Arvada, CO 80022 (For Claimant Audrey Mae Ward)

BY: _______________________


Summaries of

In re Ward, W.C. No

Industrial Claim Appeals Office
Jul 28, 1995
W.C. No. 4-129-484 (Colo. Ind. App. Jul. 28, 1995)
Case details for

In re Ward, W.C. No

Case Details

Full title:IN THE MATTER OF THE CLAIM OF RANDALL D. WARD, Deceased, AUDREY MAE WARD…

Court:Industrial Claim Appeals Office

Date published: Jul 28, 1995

Citations

W.C. No. 4-129-484 (Colo. Ind. App. Jul. 28, 1995)