654 P.2d 1333 | Colo. Ct. App. | 1982
Petitioners in this workers’ compensation case, Frontier Airlines, Inc., and Niagara Fire Insurance Company, seek review of a $15,000 award by the Industrial Commission to the subsequent injury fund. We affirm.
The facts are uncontroverted. The employee, Stephen William Kilian, died on November 24, 1976, as the result of a gunshot wound arising out of and in the course of his employment. He was survived by a widow, a minor son, and two minor stepchildren. These survivors did not file a claim for compensation within the time period prescribed by statute, but instead, as indicated through their attorney, elected to pursue their common law remedies. See § 8-51 — 106(l)(b), C.R.S.1973.
On March 4, 1980, a proceeding was held before a hearing officer. At that hearing the petitioners and the subsequent injury fund were represented; no appearance was made on behalf of the alleged claimants. However, the parties that did appear stipulated to the existence of the survivors. Subsequent to the hearing, it was ordered that the petitioners pay $15,000 to the Division of Labor to be deposited into the subsequent injury fund. The Industrial Commission affirmed the findings of fact and order of the hearing officer.
The workers’ compensation act requires that “for every compensable injury resulting in death wherein there are no persons either wholly or partially dependent upon the deceased, the employer or his insurance carrier, if any, shall pay to the division the sum of fifteen thousand dollars, to be deposited with the state treasurer, as custodian, into the subsequent injury fund.” Section 8-51-106, C.R.S.1973 (1981 Cum. Supp.). The only issue here is whether the petitioners are required to make a $15,000 payment to the subsequent injury fund un-» der circumstances such as these, where the survivors of the claimant fail to file for compensation within the 3-year statute of limitations.
The petitioners rely upon the pertinent parts of § 8-50-101, C.R.S.1973 (1981 Cum.
Colorado has not adopted such a rigid viewpoint of the status of dependency because “conditions constituting dependency may change during [an] intervening period.” McBride v. Industrial Commission, 97 Colo. 166, 49 P.2d 386 (1935). Furthermore, the dependents must appear and make their rights known during the times prescribed by statute. See Colorado Fuel v. Industrial Commission, 74 Colo. 228, 220 P. 498 (1923).
Whether dependency exists is a question of fact to be determined pursuant to the claim procedure set out in § 8-52-105, C.R.S.1973. Tilley v. Bill’s Sinclair, 34 CoIo.App. 141, 524 P.2d 314 (1974). Hence, until a claim is filed and established under the procedure, no claim or any dependents exist.
In order to aid the survivors at this determination, they are provided with the statutory presumptions to facilitate their case and assist the Commission in making its determination as to the disposition of the compensation.
When judicially construing the workers’ compensation statute, it is necessary to ascertain the legislative purpose as well as to attempt to harmonize the various sections. McBride v. Industrial Commission, supra. “While dependency at the time of the workman’s death is usually one prerequisite of entitlement to death benefits, the statute also requires appropriate notice of injury, and timely filing of the claim.... ” Union Stevedoring Co. v. Willard, 209 F.2d 198 (3rd Cir.1953). Accord McBride, supra. Here, there was no determination of dependency made by the commissioner pursuant to § 8-52-105(2) because, as per stipulation, no claim was filed and the statute of limitations operates as a bar to the filing of a claim. Section 8-52-105(2), C.R.S.1973 (1981 Cum.Supp.); Ball v. Industrial Commission, 30 CoIo.App. 583, 503 P.2d 1040 (1972). Consequently, in this instance, where no claim was filed, no dependents exist, and § 8-51-106(l)(b) is triggered for purposes of payment into the subsequent injury fund. Accord Industrial Commission v. Underwood Ellicott Fisher Co., 247 App.Div. 658, 282 N.Y.S. 229 (1935), aff’d, 271 N.Y. 639, 3 N.E.2d 462 (1936).
Here, the intent of the statute is to have payments made to the subsequent injury fund in instances where no compensation is paid. Accord Commissioner of Taxation & Finance v. Kingsboro Construction Co., 21 A.D.2d 929, 251 N.Y.S.2d 187 (1964). This legislative purpose is reasonable because, with every compensable injury which occurs without dependents, the insurance carrier receives a windfall benefit. Fallon’s Case, 322 Mass. 61, 76 N.E.2d 144 (1947).
Other provisions of the statute support this construction. In any compensable injury where the employer or insurance carrier makes payments to a partial dependent, the balance of the sum of $15,000 is to be paid to the subsequent injury fund. Section 8-51-106, C.R.S.1973 (1981 Cum.Supp.). In addition, the statute provides that if pay
We, therefore, conclude that here the compensation order was proper.
Order affirmed.
. For example, if a widow presents a claim, the commissioner “shall” consider her to be wholly dependent unless she had received no support from the deceased. Section 8-50-101, C.R.S. 1973 (1981 Cum.Supp.). Diamond Industries v. Claimants in Death of Crouse, 41 CoIo.App. 541, 589 P.2d 1383 (1978);