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
David Richter & Mayle, PC, J. Keith Killian, Erin C. Burke,
Grand Junction, Colorado, for Petitioners.
Appearance for Respondent Industrial Claim Appeals Office.
Pollart & Miller, LLC, Eric J. Pollart, Tina R. Oestreich,
Greenwood Village, Colorado, for Respondents Transportation
Technology Services and Ace American Insurance Company.
by JUDGE BERNARD. Terry and Nieto[*], JJ., concur.
[¶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
[¶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
[¶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
[¶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
[¶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
[¶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 ...