8-42-120. Termination of right to benefits.

Statute text

Death benefits shall be paid to a dependent widow or widower for life or until remarriage, and, if there are no dependent children, as defined in section 8-41-501 (1)(b) and (1)(c), at the time of remarriage, a two-year lump-sum benefit without discount, less any lump sums previously paid, shall be paid to such widow or widower. Death benefits shall terminate upon the happening of any of the following contingencies and shall thereupon survive to the remaining dependents, if any: Upon the death of any dependent; when a child or brother or sister of the deceased reaches the age of eighteen years, except as otherwise provided in sections 8-41-501 (1)(b) and (1)(c) and 8-41-502; and upon the expiration of six years from the date of the death of the injured employee in the case of partial dependents.

History

Source: L. 90: Entire article R&RE, p. 497, 1, effective July 1. L. 91: Entire section amended, p. 1352, 5, effective May 29.

Annotations

Editor's note: This section is similar to former 8-50-106 as it existed prior to 1990.

Annotations

 

ANNOTATION

Annotations

Annotator's note. Since 8-42-120 is similar to 8-50-106 as it existed prior to the 1990 repeal and reenactment of the "Workers' Compensation Act of Colorado", articles 40 to 47 of this title, relevant cases construing that provision have been included in the annotations to this section.

This section is constitutional and does not violate equal protection of the law or due process. Dow Chemical Co. v. Gabel, 746 P.2d 1357 (Colo. App. 1987).

This section does not explicitly provide that termination cannot occur for reasons other than those enumerated. Berry Constr., Inc. v. Indus. Comm'n, 39 Colo. App. 251, 567 P.2d 806 (1977).

Termination where dependents pursue remedy against third-party tortfeasor. The propriety of termination of death benefits where the dependents of deceased elect to take compensation under articles 40 to 54 but nevertheless pursue their remedy against a third-party tortfeasor is implicit in section 8-52-108. Berry Constr., Inc. v. Indus. Comm'n, 39 Colo. App. 251, 567 P.2d 806 (1977).

The adoption of a minor dependent is not a condition upon which the right to death benefits shall lapse. The arguments that the adopted child has ceased to be dependent and that he could collect two death benefits at the same time if his adopted father should be killed by accident in the course of his employment, would be forceful if addressed to the general assembly but the statute is explicit and it cannot be added to or taken from. Employers' Mut. Ins. Co. v. Indus. Comm'n, 70 Colo. 229, 199 P. 483 (1921).

Words not applying exclusively to wholly dependents. It is contended that the words "shall thereupon survive to the remaining dependents", in this section were intended to apply only to those who are wholly dependent. But if the general assembly so intended, no doubt the word "wholly" would have been inserted in the appropriated place. Its omission is significant. If the provision were not intended to apply to others than those wholly dependent, it would serve no useful purpose; for if there were two or more persons wholly dependent and one remarried or died, the rights of the other or others to compensation would continue without any such provisions. Indeed, the word "survive" would hardly be selected if the intent were such as counsel contend it was. Central Sur. & Ins. Corp. v. Indus. Comm'n, 94 Colo. 341, 30 P.2d 253 (1934).

Benefits survive. The sixty-six and two-thirds percent of the deceased's salary is payable to those wholly dependent upon the deceased regardless of number. Such benefits survive as provided by statute if one dependent becomes ineligible. Indus. Comm'n v. Employers' Liab. Assurance Corp., 169 Colo. 396, 456 P.2d 739 (1969).

But payments cannot exceed statutory maximum. Regardless of the language providing for the share of surviving dependents to other dependents, the payments cannot in any event exceed the statutory maximum. Indus. Comm'n v. Employers' Liab. Assurance Corp., 169 Colo. 396, 456 P.2d 739 (1969).

And the right of a widow to receive compensation under an award for the death of her husband terminates upon her remarriage. Tavernor v. Royal Indem. Co., 84 Colo. 521, 272 P. 3 (1928); Nat'l Sugar Mfg. Co. v. Bauer, 148 Colo. 436, 366 P.2d 388 (1961).

If a widow with a right to receive compensation under an award for the death of her husband remarries, and the new marriage ends in divorce, the widow's right to receive from her first husband is not reinstated upon the divorce. Dow Chemical Co. v. Gabel, 746 P.2d 1357 (Colo. App. 1987).

Moreover, dependents must prove their dependency on the employee and that such dependency has not been terminated by the dependent's marriage, death, or attainment of age 18. In re Hampton v. State, 31 Colo. App. 141, 500 P.2d 1186 (1972).

Children of deceased worker entitled to death benefits as full-time students pursuant to 8-50-101 (now 8-41-501) even though they were not 18 at time of death. Western Gas v. Indus. Claim App. Office, 797 P.2d 823 (Colo. App. 1990).

Applied in Colo. Fuel & Iron Corp. v. Indus. Comm'n, 152 Colo. 256, 381 P.2d 267 (1963); Indus. Comm'n v. Employers' Liab. Assurance Corp., 169 Colo. 396, 456 P.2d 739 (1969).