Claim of Dick v. Industrial Commission ( 1979 )

MR. JUSTICE KELLEY

delivered the opinion of the Court.

The court of appeals, by a memorandum opinion announced October 22, 1977, affirmed the Industrial Commission’s denial of a petition to reopen a claim for disability benefits filed by claimant’s widow and administratrix. We granted certiorari and now affirm.

On May 22, 1972, Clark Dick filed a claim for permanent total disability due to lung cancer incurred in the course of and arising out of his employment as a uranium miner. On January 21, 1973, while the above claim was pending before the Industrial Commission, Clark Dick died of lung cancer. Thereafter, Fannie Dick, widow of the deceased, filed a claim on behalf of herself and her nine children for dependents’ benefits arising out of the death of Clark Dick.

On October 1, 1973, Fannie Dick was appointed administratrix of the estate of her deceased husband by order of the Navajo Tribal Court of Shiprock, New Mexico. As administratrix, Mrs. Dick pursued both the disability claim of her deceased husband and that for dependents’ death benefits. On April 7, 1976, the referee awarded death benefits to the widow and the children. The Industrial Commission affirmed the award; it is now final and is not an issue in this appeal. The sole issue is whether the dependents are entitled to recover the disability benefits which the deceased may have been entitled to during his life, but which were not reduced to an award prior to his death.

Section 8-50-105(2), C.R.S. 1973, is the controlling statute. It provides:

“In case an employee or claimant entitled to compensation dies leaving dependents, any accrued and unpaid portion of the compensation or benefits up to the time of the death of such employee or claimant shall be paid to such dependents as may be ordered by the director and not to the legal representative as such of said decedent.” (Emphasis added).

The court of appeals held that the interpretation of the italicized language in the above statute controlled the resolution of the issue before them. That court relied on Employer’s Mutual Insurance Company v. Industrial Commission, 89 Colo. 475, 3 P.2d 1079 (1931), and Borquez v. Burbank Trucking, 164 Colo. 217, 433 P.2d 767 (1967), in reaching its decision. In Employer’s Mutual, the phrase “accrued and unpaid,” as used in the statute, was held to mean “due and payable.” Consequently, a widow’s or dependent’s recovery of disability compensation was held to be dependent on whether an award had been entered prior to the employee’s death. Since, in this case, an award had not been entered, the court of appeals affirmed the denial of compensation of the Industrial Commission. We adhere to that ruling.

The claimant relies in part on the Colorado survival statute¹ in support of her argument that the disability claim survives the death of the injured employee. We hold that the survival statute is not applicable. Without going into the several facets of the issue, we believe the Workmen’s Compensation Act governs and negates the survival concept.

Section 8-50-105(2), C.R.S. 1973, upon which the claimant must rely for relief, in addition to requiring that the compensation must be “accrued and unpaid,” also provides that any benefits “shall be paid to” the dependents and “not to the legal representative as such.” The legal representative, in an action at law which survives under the statute in question, stands in the place of the decedent. The Workmen’s Compensation Law negates this. It provides different but specific benefits for the widow, children and other dependents. Section 8-50-103, C.R.S. 1973.

In other relevant provisions, we find that the dependent has no interest in the claim of an injured employee during his lifetime. Section 8-50-108, C.R.S. 1973.² See Hampton v. Director of Division of Labor, 31 Colo. App. 141, 500 P.2d 1186 (1972). Section 8-52-107 provides the compensation claims are not assignable. The general rule is that a claim that is not assignable does not survive the death of the claimant. Home Ins. Co. v. Railroad Co., 19 Colo. 46, 34 P. 281 (1893); Annot., 87 A.L.R. 864 (1933).

The Workmen’s Compensation Act creates two distinct rights — one for the benefit of the workman; the other for the benefit of his dependents. Unfortunately, some of the benefits which probably would have been awarded to Clark Dick had he lived did not “accrue,” so they were lost.

The judgment of the court of appeals is affirmed.

MR. JUSTICE PRINGLE, MR. JUSTICE ERICKSON and MR. JUSTICE CARRIGAN dissent.

1 Section 13-20-101, C.R.S. 1973.

2 “No dependent of an injured employee, during the life of the employee, shall be deemed a party in interest to any proceeding by him for the enforcement of any claim for compensation . . . .”