Estate of Huey v. J.C. Trucking, Inc.

Opinion by Judge DUBOFSKY. The estate of Elvin J. Huey, claimant, seeks review of a final order of the Industrial Claim Appeals Panel determining that respondents, J.C. Trucking, Inc., and Colorado Compensation Insurance Authority, were not liable for workers’ compensation benefits that accrued prior to claimant’s death but were not awarded by the Administrative Law Judge (ALJ) until after his death. We affirm. Claimant was injured at work in 1988 and died in 1989 of an unrelated cause. The following year, the AU awarded medical and temporary total disability benefits to claimant’s estate. The Panel set aside the AU’s order on the ground that the benefits were not due and payable at the time of the claimant’s death. Petitioner argues that, at least as to those losses that were known and owing at time of claimant’s death, i.e., medical bills and total temporary disability, such damages had accrued and are not controlled by In re Claim of Dick v. Industrial Commission, 197 Colo. 71, 589 P.2d 950 (1979). The petitioner implicitly argues that, consonant with the holding in Mastro v. Brodie, 682 P.2d 1162 (Colo.1984), both the decedent’s and the estate’s entitlement to these losses accrued when both the cause of the act and the resulting injury occurred. Petitioner further argues that, as noted in 2 A. Larson, Workmen’s Compensation Law § 58.42 (1989), numerous jurisdictions have decided that a decedent’s estate is entitled to workers’ compensation benefits, even if they were not formally awarded before his death. While there is merit to petitioner’s argument, we are compelled under In re Claim of Dick to reject petitioner’s contention that claimant’s estate is entitled to benefits that accrued prior to claimant’s death. The applicable statute in effect at the time of claimant’s injury, now codified at § 8-41-503(2), C.R.S. (1990 Cum.Supp.), provides that: “[I]n case an employee or claimant entitled to compensation dies leaving dependents, any accrued and unpaid portion of the compensation ... shall be paid to such dependents.... ” (emphasis added) The phrase “accrued and unpaid” means “due and payable.” In re Claim of Dick v. Industrial Commission, supra. Thus, the court in In re Claim of Dick held that compensation which had not been awarded prior to claimant’s death was not recoverable by his parents. In light of this holding, and because we conclude that the losses claimed here come within the scope of the In re Claim of Dick decision, we affirm the Panel’s ruling. Furthermore, since a disability claim does not survive the death of a claimant, the Colorado survival statute, § 13-20-101, C.R.S. (1987 Repl.Vol. 6A), is inapplicable to workers’ compensation claims. In re Claim of Dick, supra. Since benefits were not due and payable at the time of claimant’s death, the benefits to which he would have been entitled may not be awarded to his estate. Order affirmed. RULAND, J., concurs. TURSI, J., dissents.