Dependents of Nunnally v. Wal-Mart Stores, Inc.

Decision Date24 October 1996
Docket NumberWAL-MART,No. 96CA0509,96CA0509
Citation943 P.2d 26
PartiesIn the Matter of the Claims of the DEPENDENTS OF Anthony B. NUNNALLY, Deceased, Petitioners, v.STORES, INC., National Union Fire Insurance Company, and The Industrial Claim Appeals Office of the State of Colorado, Respondents. . III
CourtColorado Court of Appeals

Richard K. Blundell, Greeley, for Petitioners.

Clifton, Hook & Bovarnick, P.C., Richard A. Bovarnick, Denver, for Respondents Wal-Mart Stores, Inc., and National Union Fire Insurance Company.

No Appearance for Respondent Industrial Claim Appeals Office.

Opinion by Judge ROTHENBERG.

In the workers' compensation proceeding, claimants, who are the surviving dependents of the deceased employee, Anthony B. Nunnally (Nunnally), petition for review of a final order of the Industrial Claim Appeals Panel denying their claim for permanent partial disability (PPD) benefits. We affirm.

Nunnally suffered an admitted industrial injury during his employment with Wal-Mart Stores, Inc. Following his injury, Nunnally committed suicide. Although his authorized treating physician had not determined that Nunnally had reached maximum medical improvement (MMI) before Nunnally's death, shortly after it occurred the physician expressed the opinion that, if he had lived, Nunnally's permanent impairment rating would have been approximately 18%.

The Administrative Law Judge (ALJ) found that Nunnally's death was a result of his industrial injury and ordered Wal-Mart and its insurer, National Union Fire Insurance Co. (respondents), to pay death benefits to claimants. This controversy arose because claimants also assert entitlement to PPD benefits.

Following a hearing, the ALJ agreed with respondents that claimants were not entitled to PPD benefits. The Panel affirmed.

Claimants contend that the Panel erred in denying them PPD benefits and, further, assert that they are entitled to penalties for respondents' refusal to pay such benefits. We disagree.

Dependents are entitled to any accrued and unpaid portion of the compensation or benefits up to the time of the injured employee's death. Section 8-41-503, C.R.S. (1996 Cum.Supp.). "Accrue" means "to come into existence as an enforceable claim: vest as a right." Estate of Huey v. J.C. Trucking, Inc., 837 P.2d 1218, 1221 (Colo.1992). PPD benefits do not come into existence as an enforceable claim or vest as a right until MMI is reached. See Golden Animal Hospital v. Horton, 897 P.2d 833 (Colo.1995) (MMI is the appropriate point to determine the award of permanent disability benefits; interpreting the minors' statute, § 8-42-102(4), C.R.S. (1996 Cum.Supp.)). See § 8-42-107, C.R.S. (l996 Cum.Supp.).

Thus, the controlling issue here is whether Nunnally had reached MMI so as to entitle his dependents to PPD benefits. We agree with the Panel that he had not.

MMI exists when the underlying condition causing the disability has become stable and no further treatment will improve that condition. Section 8-40-201(11.5), C.R.S. (1996 Cum.Supp.); Reynolds v. Industrial Claim Appeals Office, 794 P.2d 1080 (Colo.App.1990). An authorized treating physician makes the initial determination of MMI. See § 8-42-107(8)(b), C.R.S. (1996 Cum.Supp.).

According to claimants, Nunnally was at MMI as a matter of law because death is the ultimate stable condition and no treatment can ever improve that condition. We are not persuaded.

The pronouncement of MMI by an authorized treating physician entitles either the employer or injured employee to request an independent medical examination (IME). See § 8-42-107(8)(b). Obviously, a deceased employee can neither request an IME nor undergo the examination contemplated by the statute. Thus, we conclude the General Assembly logically premised enactment of the IME procedure upon an assumption...

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3 cases
  • Singleton v. Kenya Corp., 97CA1291
    • United States
    • Colorado Court of Appeals
    • May 14, 1998
    ... ... J.C. Trucking, Inc., 837 P.2d 1218, 1221 (Colo.1992) ...         In ... Accordingly, it found that the dependents of a worker who had died of unrelated causes were entitled ...         In Nunnally v. Wal-Mart Stores, 943 P.2d 26 (Colo.App.1996), a division ... ...
  • Loveland Pol. Dep. v. Ind. Claim App. off.
    • United States
    • Colorado Court of Appeals
    • May 18, 2006
    ... ... See Anderson v. Longmont Toyota, Inc., 102 P.3d 323 (Colo.2004). Further, when the General ... " Under that rule, death benefits provided to dependents, and wage loss and disability benefits provided to an ... See § 8-41-503(2), C.R.S. 2005; Nunnally v. Wal-Mart Stores, Inc., 943 P.2d 26 (Colo.App.1996) ... ...
  • Magnetic Engineering v. ICAO, 99CA1380.
    • United States
    • Colorado Court of Appeals
    • June 8, 2000
    ...5 P.3d 385MAGNETIC ENGINEERING, INC., and State Farm Fire and Casualty Co., Petitioners, ... See Section 8-42-107(8)(b), C.R.S.1999; Dependents of Nunnally v. Wal-Mart Stores, Inc., 943 P.2d 26 ... ...

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