Opinion
W.C. No. 4-516-837.
October 11, 2005.
ORDER OF REMAND
The decedent's estate seeks review of an order of Administrative Law Judge Harr (ALJ) which denied the claim for temporary total disability (TTD) benefits. We set aside the order and remand for the entry of a new order.
The decedent alleged an occupational disease affecting his low back. In March 2003, the decedent applied for a hearing on the issues of compensability, medical benefits, average weekly wage, and temporary disability benefits. However, the matter proceeding to a hearing on the sole issue of "compensability". In an order dated September 11, 2003, an ALJ found the claim to be compensable, however, the order did not purport to address the decedent's entitlement to particular compensation or benefits and consequently was not immediately reviewable.
The decedent died of an unrelated cause on July 18, 2004, without leaving dependents. The decedent's estate subsequently applied for an award of TTD benefits from July 26, 2001 to July 17, 2004.
Relying on § 8-41-503(2), C.R.S. 2005, the ALJ determined that because the decedent had no dependents, he lacked authority to adjudicate the estate's claim for an award of TTD benefits. The estate timely appealed.
On review the estate argues the ALJ misconstrued § 8-41-503(2). We agree.
Section 8-41-503(2), provides that:
"In case an employee or claimant entitled to compensation dies leaving dependents, any accrued and unpaid portion of the compensation or benefits up to the time of death of such employee or claimant shall be paid to such dependents as may be ordered by the director and not to the legal representative as such of said decedent. In case the injured employee or claimant leaves no dependents, the director may order the application of any accrued and unpaid benefits up to the time of the death of such employee or claimant paid upon the expenses of the last sickness or funeral of such decedent, the preference in such payment to be to funeral expenses." (Emphasis added).
The word "shall" connotes a mandatory act. Salazar v. Industrial Claim Appeals Office, 10 P.3d 666 (Colo.App. 2000). Consequently, we agree with the ALJ that the first sentence of § 8-41-503(2), unequivocally mandates that if the decedent is survived by dependents, all unpaid compensation must be paid to the dependents and none can be paid to decedent's estate.
However, the second sentence of the statute, which expressly applies where there are no dependents authorizes the ALJ to order the payment of accrued compensation for expenses of the decedent's last illness or the decedent's funeral expenses. This language was interpreted by the court in Moffat Coal Co v. Hilliard, 190 P.2d 907 (Colo. 1948). In Moffatt Coal an injured worker returned to Greece after obtaining an award of compensation. Compensation payments were made to the injured worker until war broke out in Greece and remittance became impossible. Under these circumstances, the insurer obtained an order allowing them to suspend the payment of compensation. The injured worker subsequently died without dependents. The worker's estate then obtained an order awarding it all accrued but unpaid comensation. The insurer appealed.
Our Supreme Court held that the second sentence of § 8-41-503(2) is a:
"grant of authority to the [industrial] commission to do what otherwise it could not, i.e., discharge expenses of last sickness and funeral from accrued and unpaid benefits instead of paying the total to the personal representative." (Emphasis added).
Based upon this language, we are persuaded that § 8-41-503(2) inherently entitles the injured worker's estate to recover all accrued and unpaid compensation except where the ALJ exercises his discretionary authority to apply such compensation to the payment of last sickness and funeral expenses. Accordingly, we conclude the ALJ erred in finding he lacked authority to order the respondent to pay any accrued compensation to the estate.
Because the ALJ erroneously determined as a matter of law that the estate could not recover TTD benefits, the ALJ did not address the respondent's contention that no TTD benefits had accrued before the decedent's death. Under these circumstances, we remand the matter to the ALJ for the resolution of that argument and the entry of a new order concerning the estate's claim for TTD benefits.
In view of our disposition we necessarily reject the respondent's assertion that the estate did not have standing to appeal the ALJ's order. See Ajay Sports, Inc. v. Casazza, 1 P.3d 267 (Colo.App. 2000) (standing is a jurisdictional issue that can be raised at any stage in an action, even for the first time on appeal). A party has standing if it has "both an injury in fact and a cognizable legal right." Bradley v. Industrial Claim Appeals Office, 841 P.2d 1071 (Colo.App. 1992). As stated above the estate, had a legal right to appeal the ALJ's order because § 8-41-503(2) creates a legal right to recover accrued and unpaid compensation where the injury worker dies without dependents. Furthermore, the ALJ's order denying TTD constitute an injury in fact to the estate.
I T IS THEREFORE ORDERED that the ALJ's order dated May 18, 2005, is set aside and the matter is remanded to the ALJ for the entry of a new order consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL
____________________ Kathy E. Dean ____________________ Tom Schrant Ronette Bell Woods, Newark, DE, Adams County School District No. 14, Commerce City, CO, G.E. Young Company, Greenwood Village, CO, Barbara J. Furutani, Esq., Denver, CO, (For Claimant).Douglas J. Kotarek, Esq. and Julie D. Swanberg, Esq., Denver, CO, (For Respondent).