Schenfeld v. Shaffer, 70--606

• Decision Date: 11 May 1971
• Docket Number: No. 70--606,70--606
• Citation: 29 Colo.App. 425,487 P.2d 818
• Parties: Mary SCHENFELD, Petitioner, v. James M. SHAFFER, as Director of The Colorado Department of Labor and Employment, et al., Respondents. . II
• Court: Colorado Court of Appeals

Page 818

487 P.2d 818

29 Colo.App. 425

Mary SCHENFELD, Petitioner, v. James M. SHAFFER, as Director of The Colorado Department of Labor and Employment, et al., Respondents.

No. 70--606.

Colorado Court of Appeals, Div. II.

May 11, 1971.

Rehearing Denied June 2, 1971.

Certiorari Denied Aug. 17, 1971.

Philip Hornbein, Jr., Roy O. Goldin, Denver, for petitioner.

Harold Clark Thompson, Alious Rockett, Feay Burton Smith, Jr., Denver, for respondents Western Foundries, Inc., and The State Compensation Insurance Fund.

Duke W. Dunbar, Atty. Gen., John P. Moore, Deputy Atty. Gen., Peter L. Dye, Asst. Atty. Gen., Denver, for respondents James M. Shaffer, as Director of The Colo. Dept. of Labor and Employment, and The Colo. Industrial Comm.

DUFFORD, Judge.

The appellant is the widow of Joseph Schenfeld, who was injured in the course of his employment with the appellee, Western Foundries, Inc., on February 1, 1966. After his injury, Mr. Schenfeld was paid compensation by the appellee State Compensation Insurance Fund for temporary total disability until October 1969, at which time Mr. Schenfeld was awarded compensation for permanent total disability. On November 24, 1969, Mr. Schenfeld was granted a lump-sum award of $11,332, and his disability payments were reduced accordingly. On December 4, 1969, before payment of the lump-sum award was made, Mr. Schenfeld died as a result of a heart failure unrelated to his accident. The lump-sum award has never been paid; however, other disability payments made to Mr. Schenfeld during his lifetime totalled $10,202.

Thereafter, the appellant, as the sole dependent of the decedent, applied for death benefits pursuant to the provisions of C.R.S.1963, 81--11--1 et seq. The Industrial Commission ultimately awarded appellant the sum of $5,635, but revoked the lump-sum disability award.

I.

In revoking the lump-sum disability award, the Commission took the position and reasserts it here, that the purposes for which the award was made were personal to Mr. Schenfeld and were frustrated by the fact of his death. Even if we assume that this was, and is, the case, the Commission was without authority to revoke that award.

No contention has ever been made that the award was not validly entered in the first instance, or that its propriety was contested by the State Compensation Insurance Fund at the time it was made or thereafter. Under such circumstances, the award became, at the time of entry, tantamount to a final judgment and a vested right which survived Mr. Schenfeld's death. McBride v. Industrial Commission, 97 Colo. 166, 49 P.2d 386.

Revocation of the award was an invalid act on the part of the Commission, and its order to such effect is reversed.

II.

Mr. Schenfeld's widow also urges in this appeal that the Commission erred in computing the amount of death benefits to which she is entitled.

The following sections of C.R.S.1963, Chapter 81, as they existed at the time of Mr. Schenfeld's compensable injury, are relevant to the determination of the questions his widow raises:

1965 Perm.Supp., 81--11--3: 'Death benefits.--In case of death the dependents of the deceased entitled thereto shall receive as compensation or death benefits sixty-six and two-thirds per cent of the deceased employee's average weekly wages, not to exceed a maximum of forty-nine dollars per week and not less than a minimum of eleven dollars and fifty cents per week for a period not to exceed six years from the date of the death of the injured employee, less any sums paid to the employee prior to his death as compensation for his disability as in this chapter provided. * * *'

81--11--11: 'Death from injury--benefits.--(1) (a) In case death proximately results from the injury, and benefits shall be in the amount and to the persons following:

* * *'

1965 Perm.Supp., 81--11--11(1)(c): 'If there are wholly dependent persons at the time of death, the payment shall be sixty-six and two-thirds per cent of the average weekly wages, subject to the limitations of this chapter as to maximum and minimum weekly amounts, and to continue for a period of six years from the date of death of the injured employee and not to amount to more than a maximum of fifteen thousand three hundred thirty-seven dollars, less any sums paid to the injured employee prior to his death as compensation for disability as in this chapter provided; * * *'

81--11--12: 'When death not proximate result--benefits.--(1) (a) If death occurs to an injured employee, other than as a proximate result of accident before disability indemnity ceased, and the deceased leaves a person or persons wholly dependent upon him for support, death benefits shall be as follows:

'(b) Where the accident proximately caused permanent total disability, the death benefit shall consist of the unpaid and unaccrued portion of the permanent total disability benefit which the employee would have received had he lived until he had...