2021 Colorado Code
Title 8 - Labor and Industry
Article 42 - Benefits
§ 8-42-114. Death Benefits

Universal Citation: CO Code § 8-42-114 (2021)

In case of death, the dependents of the deceased entitled thereto shall receive as compensation or death benefits sixty-six and two-thirds percent of the deceased employee's average weekly wages, not to exceed a maximum of ninety-one percent of the state average weekly wage per week for accidents occurring on or after July 1, 1989, and not less than a minimum of twenty-five percent of the applicable maximum per week. In cases where it is determined that periodic death benefits granted by the federal old age, survivors, and disability insurance act or a workers' compensation act of another state or of the federal government are payable to an individual and the individual's dependents, the aggregate benefits payable for death pursuant to this section shall be reduced, but not below zero, by an amount equal to fifty percent of such periodic benefits.

History. Source: L. 90: Entire article R&RE, p. 495, § 1, effective July 1. L. 91: Entire section amended, p. 1351, § 4, effective May 29.


Editor's note:

This section is similar to former § 8-50-103 as it existed prior to 1990.

ANNOTATION

Law reviews. For note, “One Year Review of Colorado Law - 1964”, see 42 Den. L. Ctr. J. 140 (1965). For article, “Primer on Permanent Disability in the Colorado Workmen's Compensation Law”, see 57 Den. L.J. 573 (1980).

Annotator's note. Since § 8-42-114 is similar to § 8-50-103 as it existed prior to the 1990 repeal and reenactment of the “Workers' Compensation Act of Colorado”, articles 40 to 47 of this title, relevant cases construing that provision have been included in the annotations to this section.

Constitutionality of offset provision. The offset provision of this section is constitutional, and does not violate equal protection. Meyer v. Indus. Comm'n, 644 P.2d 46 (Colo. App. 1981).

The prevention of duplication of benefits is a legitimate goal, and a coordination of various state and federal programs into a single system of wage-loss protection is rationally related to the offset scheme. Meyer v. Indus. Comm'n, 644 P.2d 46 (Colo. App. 1981).

Even though similar deductions are not made for payment from all possible sources, provision is not violative of equal protection. Boehm v. Indus. Comm'n, 738 P.2d 804 (Colo. App. 1987).

This section does not violate the supremacy clause of the U.S. Constitution and is not preempted by the Social Security Act. Therefore, under this section, the state could properly offset social security survivors' benefits against workers' compensation death benefits. Rosa v. Warner Elec. Contracting, 870 P.2d 1210 (Colo. 1994).

Only dependents can receive compensation under the workmen's compensation act. Vaughn v. Indus. Comm'n, 79 Colo. 257 , 245 P. 712 (1926).

And this section sets the legislative maximums and minimums on death benefits and directs what deductions will be made against death benefits. Schenfeld v. Shaffer, 29 Colo. App. 425, 487 P.2d 818 (1971).

Amount of death benefits should be fixed as of the date of death, not the date of injury. Richards v. Richards & Richards, 664 P.2d 254 (Colo. App. 1983); State Comp. Ins. Fund v. Indus. Comm'n, 724 P.2d 679 (Colo. App. 1986).

Interest accrues on all past-due benefits under this section, after applying the offset provision. Payments made in another state are not subsumed by or converted to Colorado benefits for purposes of the interest calculation. Keel v. Indus. Claim Appeals Office, , 369 P.3d 807 .

Benefit payments unlike survival actions. While the legal representative, in an action at law which survives under the statute in question, stands in the place of the decedent, the workmen's compensation law differs and provides specific benefits for and to the widow, children and other dependents. In re Dick v. Indus. Comm'n, 197 Colo. 71 , 589 P.2d 950 (1979).

Death benefits and disability benefits are independent. Disability benefits awarded to a worker and death benefits awarded to a worker's dependents are entirely independent of one another. This results in two distinct rights -- one for the benefit of the workman, the other for the benefit of his dependents. Richards v. Richards & Richards, 664 P.2d 254 (Colo. App. 1983).

Under the “rule of independence”, disability benefits awarded an employee and death benefits awarded an employee's dependents are independent of one another, that is, there are two distinct rights, one for the benefit of the worker and the other for the benefit of his or her dependents. Therefore, under the rule, both the death benefit amount and the amount of offset should be determined based on the law in effect on the date of the employee's death. Hoffman v. Hoffman, 872 P.2d 1367 (Colo. App. 1994).

Workers' compensation death benefits are not excluded from criminal restitution statute as “future earnings”, although the amount of benefits is determined with reference to the deceased employee's average weekly wage. Such benefits are fixed and determinable at the time of death as a type of insurance payout. Moreover, under the rule of independence, the rights to these benefits are considered rights of the employee's dependents, not of the employee. People v. Oliver, 2016 COA 180 M, 405 P.3d 1165.

Death benefits are distinct from wage loss and disability benefits, and the limitation on medical impairment disability benefits applies to those cases in which disability benefits are payable to an eligible claimant, not to cases in which a claimant seeks death benefits. Loveland Police Dept. v. Indus. Claim Appeals Office, 141 P.3d 943 (Colo. App. 2006).

Deduction of federal death benefits. Federal death benefits are to be deducted from the aggregate benefits payable for death under this section before the amount of compensation is reduced by 50 percent if the employee engaged in conduct proscribed by § 8-52-104 . Cline v. Indus. Comm'n, 43 Colo. App. 123, 599 P.2d 973 (1979).

Federal social security benefits payable to widow, regardless of cause or circumstances of husband's death, are not the type of periodic benefits to serve as basis for offset against workers' compensation benefits awarded to widow. Larimer Cty. Sch. Dist. v. Indus. Comm'n, 727 P.2d 401 (Colo. App. 1986), cert. denied, 752 P.2d 80 (Colo. 1988).

This section does not violate the “anti-alienation” provision of the Social Security Act since that provision was designed to prevent the use of traditional legal process to allow a third party to receive another individual's social security benefits, the petitioners will receive their social security benefits, and this section does not prohibit a worker from receiving social security benefits. Rosa v. Warner Elec. Contracting, 870 P.2d 1210 (Colo. 1994).

The purpose of the social security offset is to preclude an injured worker or his dependents from receiving duplicate benefits. There is no duplication of benefits, however, where it is undisputed that the widow is not receiving any social security benefits nor does she have dependents who receive such benefits. Hoffman v. Hoffman, 872 P.2d 1367 (Colo. App. 1994).

The ruling in Hoffman v. Hoffman, 872 P.2d 1367 (Colo. App. 1994), that no purpose would be served by offsetting a widow's benefits by the social security benefits received by decedent's children from a prior marriage is highly persuasive and achieves a better reasoned result than an earlier decision. The court expressly declines to follow the decision in Knight v. Dept. of Natural Res.s, 689 P.2d 733 (Colo. App. 1984). Koch Indus. v. Pena, 910 P.2d 77 (Colo. App. 1995).

Cost of living increases in social security “periodic death benefits” are not to be offset against workers' compensation death benefits payable because of an industrial accident. However, this ruling only applies to cost of living increases, made after the Engelbrecht ruling (680 P.2d 231 (Colo. 1984)). Wilson v. Jim Snyder Drilling, 729 P.2d 1022 (Colo. App. 1986), aff'd in part and rev'd in part on other grounds, 747 P.2d 647 (Colo. 1987).

The provisions of this section which establish that, when period death benefits under the social security act are payable, the benefits payable pursuant to this section shall be reduced by one hundred percent of such periodic benefits does not exceed the scope of the state offset permitted by the social security act, and there is no violation of the supremacy clause. Rosa v. Warner Elec. Contracting, 849 P.2d 845 (Colo. App. 1992), aff'd, 870 P.2d 1210 (Colo. 1994) (decided under former § 8-50-103 as it existed prior to the 1990 repeal and reenactment of the Workers' Compensation Act of Colorado, articles 40 to 47 of title 8).

Federal “mother's insurance benefits” are subject to offset under this section. Phrase “federal old age, survivors, and disability insurance act” specifically refers to Subchapter II of the Social Security Act, and all benefits payable under that act are within the intended scope of this section's offset provisions. L.E.L. Construction v. Goode, 867 P.2d 875 (Colo. 1994) (explicitly disapproving Larimer County case, 727 P.2d 401, to the extent inconsistent with this opinion).

Amendment in 1991, changing social security offset amount to fifty percent, applies only prospectively. The ALJ and the industrial claim appeals panel erred in ordering a claim reopened to reduce the offset from one hundred to fifty percent. Rosa v. Indus. Claim Appeals Office, 885 P.2d 331 (Colo. App. 1994).

Wage value where decedent employee's duties of different character. Where a decedent employee's duties were of a different character but did not constitute a new contract of employment, his trips without wage were a service rendered to enhance his value as an employee rather than a new arrangement. Thus, his wage value for the purposes of this section was the same as that paid for his other work. State Comp. Ins. Fund v. Coleman, 135 Colo. 82 , 392 P.2d 598 (1964).

No additional death benefit. Since amount paid claimant in periodic disability payments during his lifetime plus amount of lump-sum disability award in which he acquired a vested property right during his lifetime total together in excess of the gross maximum permanent disability award allowed under the statute, than upon payment of the lump-sum award, no additional death benefit is payable to claimant's widow. Schenfeld v. Shaffer, 29 Colo. App. 425, 487 P.2d 818 (1971).

Regardless of § 8-50-106 , payments cannot exceed statutory maximum. Regardless of the provision in § 8-50-106 which allows the survival of death benefits to remaining dependents when such benefits are terminated as to another dependent, the payments cannot exceed the statutory maximum. Indus. Comm'n v. Employers Liab. Assurance Corp., 169 Colo. 396 , 456 P.2d 739 (1969).

Court has no jurisdiction to consider minor child's argument that the industrial claim appeals panel erred in determining that her old age, survivors, and disability insurance benefits were the type of “periodic benefits” to which the offset applies where the child did not file a notice of cross-appeal. Hoffman v. Hoffman, 872 P.2d 1367 (Colo. App. 1994).

Applied in State Comp. Ins. Fund v. City of Colo. Springs, 43 Colo. App. 112, 602 P.2d 881 (1979); Knight v. Dept. of Natural Res., 689 P.2d 733 (Colo. App. 1984).


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