Opinion
W.C. No. 4-129-484
February 8, 2001
FINAL ORDER
The claimant, Audrey Ward, seeks review of an order of Administrative Law Judge Jones (ALJ), which reapportioned workers' compensation death benefits. We affirm.
Randall D. Ward (decedent) died on April 15, 1992, as a result of an industrial accident. At the time of his death, his dependents included his wife, Audrey Ward, and his children from a prior marriage, Melissa Ward, Randall Ward II, and Matthew Ward. The respondents admitted liability for death benefits in the amount of $395.71 per week, less social security offsets. In an order dated March 18, 1994, ALJ Friend apportioned 50 percent of the workers' compensation death benefits to Audrey Ward 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.
When Melisa Ward turned 21 the remaining children stipulated to divide her share of the death benefits equally between Randall Ward II and Matthew Ward. Effective August 1999, Randall Ward II became ineligible for death benefits, at which time Audrey Ward requested the reapportionment of his share of the death benefits.
In the order under review, ALJ Jones recognized that Audrey Ward has experienced some severe financial circumstances and that she is currently not working due to an injury. However, the ALJ found that Audrey Ward has been employed, at least part-time, in the last few years, and that she has the ability to work and earn money.
The ALJ found that the mother of Matthew Ward is unable work as a result of a stroke in November 1996, and that her only source of income is social security disability benefits. The ALJ also found that Matthew Ward has special educational, psychiatric, medical, dental, and optical needs which cannot be met through his mother's income. Under these circumstances, the ALJ reapportioned the death benefits equally between Matthew Ward and Audrey Ward.
On appeal, Audrey Ward contends that the reapportionment is neither just nor equitable, that it is an abuse of discretion, and is unsupported by the facts and the applicable law. In support, Audrey Ward contends that the equal apportionment is unfair where the combined household income of Matthew Ward and his mother is three times her household income. Audrey Ward also contends there is no evidence to support the finding that she is employable. These arguments do not persuade us there is any reversible error in the ALJ's order.
Under § 8-42-121 C.R.S. 2000, an ALJ has discretion to apportion workers' compensation death benefits in such manner as she deems "just and equitable." Spoo v. Spoo 145 Colo. 268, 358 P.2d 870 (Colo. 1961). Obviously, the equities of a particular distribution will turn on the unique facts of the case. In determining a just and equitable apportionment, the ALJ may consider the actual dependence of the claimants, as well as their relative incomes, circumstances, and foreseeable economic changes in those circumstances. Spoo v. Spoo, supra; Ward v. Ward, 928 P.2d 739 (Colo.App. 1996).
Here, there is substantial evidence in the record to support the ALJ's pertinent findings of fact, and those findings reflect consideration of proper factors in determining the actual dependence of the claimants. The ALJ explicitly recognized that "all parties are struggling financially." ( See Conclusions of Law). Under these circumstances, her apportionment of death benefits equally between the claimants does not exceed the bounds of reason. See Louisana Pacific Corp. v. Smith, 881 P.2d 456 (Colo.App. 1994) (no abuse of discretion by ALJ unless decision exceeded the bounds of reason).
In reaching our conclusion we necessarily reject the argument that there is no evidence Audrey Ward is capable of working. There is substantial evidence that Audrey Ward has been employed since the decedent's death. (Tr. pp. 28, 33, 34). Furthermore, even though she currently is temporarily disabled from a work-related injury, Audrey Ward did not present evidence that the injury will permanently preclude her from returning to work. ( See Tr. p. 40). In fact, she stated that she can return to her pre-injury employment when she receives a release to work from her attending physician. (Tr. p. 30). In these circumstances, the ALJ could properly consider Audrey Ward's ability to earn income.
Finally, Spoo v. Spoo, supra, does not compel a contrary result. In Spoo, the court concluded that is was an abuse of discretion to apportion death benefits unequally between the decedent's surviving spouse and the decedent's minor children where there was evidence that the minor children were at least as dependent on the decedent as the surviving spouse. Here, the record contains evidence from which a reasonable person could find that Matthew Ward and Audrey Ward both have a significant need for the death benefits. Under these circumstances, the equal apportionment of death benefits between Audrey Ward and Matthew Ward is wholly consistent with Spoo, and we cannot say the ALJ abused her discretion in refusing to apportion a greater share of the death benefits to Audrey Ward.
IT IS THEREFORE ORDERED that the order of ALJ Jones dated February 8, 2000, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Bill Whitacre
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, within twenty (20) days after the date this Order is mailed, pursuant to § 8-43-301(10) and § 8-43-307, C.R.S. 2000. The appealing party must serve a copy of the petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed February 8, 2001 to the following parties:
Audrey Ward, 3783 Arcadia St., St. Charles, MO 63301
Teresa Ward, P.O. Box 3191, Napa, CA 94558
Melissa Ward, Teresa Ward, P. O. Box 3191, Napa, CA 94558
Randall Ward II, Teresa Ward, P.O. Box 3191, Napa, CA 94558
Matthew Ward, Teresa Ward, P.O. Box 3191, Napa, CA 94558
Apex Heating and Air Conditioning, Inc., P. O. Box 811, Louisville, CO 80027-0811
Laurie A. Schoder, Esq., Colorado Compensation Insurance Authority dba Pinnacol Assurance — Interagency Mail (For Respondents)
Patricia Jean Clisham, Esq., 1200 — 17th St., #1700, Denver, CO 80202 (Guardian Ad Litem for Matthew Ward)
David R. DiGiacomo, Esq., Aspen Business Park, 5400 Ward Rd., Bldg. III, #200, Arvada, CO 80002-1822 (For Audrey Ward)
Thomas Stern, Esq., 600 17th St., #1600N, Denver, CO 80202
BY: A. Pendroy