Keel v. Indus. Claim Appeals Office of Colo.

• Decision Date: 14 January 2016
• Docket Number: Court of Appeals No. 15CA0466
• Citation: 369 P.3d 807
• Parties: Misty KEEL, individually and as guardian ad litem of Riley Cooper Keel, dependents of John Eric Keel, Petitioners, v. INDUSTRIAL CLAIM APPEALS OFFICE of the State of Colorado, Transportation Technology Services, and Ace American Insurance Company, Respondents.
• Court: Colorado Court of Appeals

369 P.3d 807

Misty KEEL, individually and as guardian ad litem of Riley Cooper Keel, dependents of John Eric Keel, Petitioners,

v.INDUSTRIAL CLAIM APPEALS OFFICE of the State of Colorado, Transportation Technology Services, and Ace American Insurance Company, Respondents.

Court of Appeals No. 15CA0466

Colorado Court of Appeals, Division VI.

Announced January 14, 2016

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

¶ 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 benefits] in the amount of $190.38 per week from the date of the incident forward."

¶ 15 Third, keeping these offsets in mind, the employer calculated the continuing future benefit that it would be obligated to pay the claimants by deducting one-half of the on-going Social Security survivor benefit, or $190.38 per week, from $810.67 to arrive at an adjusted continuing benefit figure of $620.29. (We note that there is no disagreement about this continuing benefit figure and that it is not at issue in this appeal.)

¶ 16 Fourth, the employer turned to calculating the "admitted [Colorado past due] death benefits" for the 148–week period between the worker's death and the date when it began to pay benefits in Colorado. The employer determined that one half of the Mississippi weekly benefit of $337.58 was $168.79. Subtracting this amount from the adjusted Colorado benefit of $620.29, the employer calculated that it owed the claimants' a weekly past death benefit of $451.50 for the 148–week period. Multiplying the weekly figure by the number of weeks, the employer arrived at a past due death benefit figure of $66,822.

¶ 17 The employer paid the claimants this amount. (We know this because the claimants have said so several times in documents filed in the course of this case, including the opening brief in this appeal, and during oral argument. The employer has never contested these statements.)

¶ 18 Now we zero in on the crux of this appeal. The employer also had to determine the interest that it owed the claimants on the past due death benefit. The statutory rate was eight percent. See § 843–410(2), C.R.S. 2015. The employer stated in the amended general admission that it owed the claimants an additional $2040.32 in interest. But the employer did not make clear how it had reached that figure.

¶ 19 The claimants filed a motion for summary judgment. As is pertinent to this appeal, they contended that the employer had significantly miscalculated the interest due on the past due death benefits.

¶ 20 The employer offered clarification later in a cross-motion for summary judgment, most directly in an affidavit attached to the cross-motion that was completed by a claims representative. It asserted that the total of the Mississippi payments—$49,961.84—should be subtracted from the total of the Colorado past due death benefits—$66,822—to reach a total figure of $16,860.16 that the employer owed the claimants. Then the employer used this last figure to calculate the interest on the Colorado past due death benefits.

¶ 21 The ALJ agreed with employer's reasoning and calculations. She ordered the employer to pay the claimants the interest that employer had listed in the general admission.

¶ 22 The claimants sought review. A Panel of the Industrial Claim Appeals Office disagreed with the ALJ's interest calculations. It held that section 8–42–114 did not apply to the Colorado past due death benefits that the employer owed to the claimants because the claimants' Mississippi death benefits, which employer "timely paid for the period of October 28, 2010, through August 28, 2013, actually were subsumed by or converted to Colorado workers' compensation benefits." The Panel therefore held that the claimants were not entitled "to collect the full aggregate amount of workers' compensation benefits from two applicable states." This meant, the Panel explained, that the claimants were not "entitled to recover $116,783.84," or the sum of the Colorado past due death benefits that the employer paid—$66,822—and the full Mississippi death benefit—$49,961.84.

¶ 23 The Panel decided that it would calculate the interest that the employer owed the claimants on the Colorado past due death benefit in the following way. It initially decided that, for the 148–week period during which Mississippi paid the claimants' death benefits, they were entitled to Colorado benefits of $91,902.92, or 148 weeks multiplied by $620.29—the weekly Colorado benefit minus the offset for the Social Security survivors' benefit. It then subtracted all the Mississippi death benefits that the claimants had actually received—$49,961.84—from the $91,902.92 figure. This left a figure of $41,841.08 on which the employer was obligated to pay interest.

¶ 24 The Panel remanded the case to the ALJ to enter an order on the interest. The ALJ, following the Panel's direction, ordered the employer to pay the statutory eight percent interest on...