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Keel v. Industrial Claim Appeals Office of State

Court of Appeals of Colorado, Sixth Division

January 14, 2016

Misty Keel, individually and as guardian ad litem of Riley Cooper Keel, dependents of John Eric Keel, Petitioners,
Industrial Claim Appeals Office of the State of Colorado, Transportation Technology Services, and Ace American Insurance Company, Respondents

          Industrial Claim Appeals Office of the State of Colorado. WC No. 4-897-030-02.

         Killian David Richter & Mayle, PC, J. Keith Killian, Erin C. Burke, Grand Junction, Colorado, for Petitioners.

         No Appearance for Respondent Industrial Claim Appeals Office.

         Thomas Pollart & Miller, LLC, Eric J. Pollart, Tina R. Oestreich, Greenwood Village, Colorado, for Respondents Transportation Technology Services and Ace American Insurance Company.

         Opinion by JUDGE BERNARD. Terry and Nieto[*], JJ., concur.


         BERNARD, JUDGE.

          [¶1] A worker, John Eric Keel, lived in Mississippi, where he had a job working for an employer, Transportation Technology Services. (The employer's insurer, Ace American Insurance Company, is aligned with the employer's interests in this case. We shall therefore refer to the employer and the insurer cumulatively as " the employer." )

          [¶2] At the employer's request, the worker transferred to Colorado to work. He was killed in a workplace accident in Pueblo. The worker's family -- his wife, Mindy Keel, and their minor son, Riley Cooper Keel -- are the claimants in this case.

          [¶3] When workers who live in other states die on the job in Colorado, our Workers' Compensation Act sets out a test to determine whether their families will receive death benefits in this state. An administrative law judge -- an " ALJ" in legal parlance -- in Colorado decided that this test had been satisfied in the worker's case.

          [¶4] This appeal asks us to decide a question that arises out of the award of death benefits under that test: What is the effect of workers' compensation death benefit payments in other states on the interest paid on past due Colorado death benefits?

          [¶5] We conclude that the answer is found in section 8-42-114, C.R.S. 2015. As is pertinent to this appeal, this statute describes a particular circumstance and the statutory response to it. The circumstance concerns " cases where it is determined that periodic death benefits granted by the federal . . . survivors . . . insurance act or a workers' compensation act of another state . . . are payable to . . . [an] individual's dependents." The response to the circumstance is that " aggregate benefits payable for death . . . shall be reduced . . . by an amount equal to fifty percent of such periodic benefits."

          [¶6] Section 8-42-114 controls our decision in this case: the worker's case presents the circumstance described in the statute, so we must respond as the statute directs. Consequently, we further conclude that a Panel of the Industrial Claim Appeals Office applied the wrong test when it declined to apply section 8-42-114. As a result, it awarded the claimants less interest than the pertinent statute required.

          [¶7] We reverse the Panel's order. We remand the case to the Panel to remand it, in turn, to the ALJ to recalculate the interest on the past due death benefits in Colorado in the manner that we describe in this opinion and to order the employer to pay that sum to the claimants.

         I. Background

          [¶8] In March 2010, the worker took a job with the employer in Mississippi, where he lived with the claimants. In October 2010, the employer offered the worker a job in Pueblo for a lot more money. The worker took the job. He was killed in a workplace accident on the second day that he worked in Pueblo.

          [¶9] A short time later, the employer started paying the claimants workers' compensation death benefits in Mississippi -- $337.58 per week -- and the Social Security Administration started paying them survivor benefits -- $380.77 per week.

          [¶10] The claimants applied for death benefits under Colorado's Workers' Compensation Act in 2012. In April 2013, an ALJ decided that (1) " Colorado ha[d] jurisdiction" over their claim; and (2) the employer's insurer " was liable [to the claimants] for death benefits" under the Workers' Compensation Act. See § § 8-42-114 & 8-42-121, C.R.S. 2015. But the ALJ did not decide how much money the employer should pay as a continuing future death benefit, whether the employer owed any past due death benefit payments, or whether the employer should pay any interest on any past due death benefits. The ALJ wrote that these issues were " for future determination."

          [¶11] The employer had paid the claimants' death benefits in Mississippi for 148 weeks, from the day after the worker died, October 28, 2010, until August 28, 2013. It stopped paying benefits in Mississippi on that latter date, and it began to pay benefits in Colorado. During those 148 weeks, the insurer paid the claimants a total of $49,961.84.

          [¶12] If the employer was obligated to pay the claimants' benefits in Colorado from the day after the worker died, then what was the effect of the 148 weeks of Mississippi payments and the ongoing Social Security survivor benefits on the employer's Colorado obligation? The employer offered its answer to this question in an amended general admission that it filed in mid-September 2013.

          [¶13] First, the admission stated that the maximum Colorado weekly death benefit would be $810.67.

          [¶14] Second, apparently following section 8-42-114, the employer wrote that it was entitled to two offsets. One offset was " [f]ifty percent of all benefits paid to date under the laws of the State of Mississippi, in the amount of $168.79 per week from the date of the incident to the date of this filing." The second offset was " Social Security [survivor ...

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