Sandra Amaya v. ICAO Brand X and Standard Fire

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
November 10, 2022
2022COA131No. 22CA0467, Amaya v. Indus. Claim Appeals Off. — Workers’
Compensation — Death Benefits — Dependents —
Apportionment — Compensation in Lump Sum — Proportionate
Share
In this workers’ compensation appeal, a division of the court
of appeals concludes that the apportionment of death benefits
among a deceased worker’s dependents under section 8-42-121,
C.R.S. 2022, determines a dependent’s “proportionate share” of the
maximum lump sum allowed by statute under section 8-43-406(3),
C.R.S. 2022. The division thus affirms the Industrial Claim Appeals
Office order setting aside an order of the Director of the Division of
Workers’ Compensation and concluding that Sandra Amaya, a
dependent of decedent, Angel Batista de Jesus, was entitled to 25%
of the maximum lump-sum amount of Batista’s death benefits.
COLORADO COURT OF APPEALS 2022COA131Court of Appeals No. 22CA0467
Industrial Claim Appeals Office of the State of Colorado
WC Nos. 5-117-273 & 5-149-129
Sandra Amaya, dependent of decedent, Angel Batista de Jesus,
Petitioner,
v.
Industrial Claim Appeals Office of the State of Colorado; Brand X Hydrovac
Services, Inc.; and Standard Fire Insurance Company,
Respondents.
ORDER AFFIRMED
Division III
Opinion by JUDGE FOX
Tow and Yun, JJ., concur
Announced November 10, 2022
Kaplan Morrell, LLC, Britton J. Morrell, Greeley, Colorado, for Petitioner
Philip J. Weiser, Attorney General, Patrick L. Sayas, Senior Assistant Attorney
General, Denver, Colorado, for Respondent Industrial Claim Appeals Office
Ray Lego and Associates, Jonathan S. Robbins, Greenwood Village, Colorado,
for Respondents Brand X Hydrovac Services, Inc. and Standard Fire Insurance
Company
Philip J. Weiser, Attorney General, Christopher K. Boeckx, Assistant Attorney
General, Denver, Colorado, for Amicus Curiae Colorado Department of Labor
and Employment, Division of Workers’ Compensation
¶1 In this workers’ compensation appeal, we must analyze the
interplay between two statutes: section 8-42-121, C.R.S. 2022,
which governs the apportionment of death benefits among a
deceased worker’s dependents, and section 8-43-406(3), C.R.S.
2022, which governs a lump-sum disbursement when there are
multiple dependents.
¶2 Section 8-42-121 reads,
Death benefits shall be paid to such one or
more of the dependents of the decedent, for the
benefit of all the dependents entitled to such
compensation, as may be determined by the
director, who may apportion the benefits
among such dependents in such manner as
the director may deem just and equitable.
¶3 A dependent may elect to receive part of the death benefits in a
lump sum. § 8-43-406(1). Section 8-43-406(3) then provides,
If a claimant who has been awarded
compensation is one of multiple dependents of
a deceased injured worker, the aggregate of all
lump sums granted to the claimant must be a
proportionate share, as determined by the
director or administrative law judge, of an
amount not to exceed [an annually adjusted
maximum lump sum].
¶4 Specifically, we must determine whether the apportionment of
death benefits among the deceased worker’s dependents under
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section 8-42-121 determines a dependent’s “proportionate share” of
the maximum lump sum allowed by section 8-43-406(3). We
conclude that it does.
¶5 An administrative law judge (ALJ) determined that Sandra
Amaya, a dependent of decedent, Angel Batista de Jesus, is entitled
to 25% of the benefits payable due to Batista’s death under section
8-42-121. Amaya then requested a lump-sum disbursement of the
death benefits under section 8-43-406(3) equating to 50% of the
maximum lump sum allowed by statute. The Director of the
Division of Workers’ Compensation (Director) granted her request.
However, the Industrial Claim Appeals Office (Panel) set aside the
Director’s order, concluding that Amaya is entitled to only 25% of
the maximum lump-sum amount.
¶6 Amaya appeals that final order. Because we conclude that an
apportionment of death benefits under section 8-42-121 controls a
dependent’s proportionate share of the maximum lump sum
allowed by section 8-43-406(3), we affirm the Panel’s final order.
I. Background
¶7 In August 2019, Batista suffered a fatal work injury during the
course and scope of his employment with Brand X Hydrovac
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Services, Inc. (employer). Batista left two dependents: Amaya (his
wife) and their minor child, I.R. An ALJ apportioned the death
benefits between Amaya (25%) and I.R. (75%) under section
8-42-121. The employer and the carrier, Standard Fire Insurance
Company (collectively respondents), filed a General Fatal Admission
of Liability (GFAL), admitting to weekly death benefits of $255.64 to
Amaya and $766.92 to I.R.
¶8 Amaya then requested a lump-sum distribution of a portion of
her total death benefits in an amount equating to 50% of the
maximum lump sum available for the claim.
¶9 Respondents objected, arguing, as relevant here, that section
8-43-406(3) limits Amaya’s lump-sum disbursement because she is
one of two dependents and I.R.’s interests had not been addressed.
¶ 10 The Director granted Amaya’s request, awarded her 50% of the
maximum lump sum allowed by statute, and reduced her weekly
benefit amount by $86.27 to offset the benefits she would receive in
a lump sum (first disbursement order). The Director determined
that Amaya’s right to a lump sum vested on the filing of the GFAL,
so she could elect to receive any or all of the compensation up to
the statutory maximum.
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¶ 11 Respondents filed a petition to review the Director’s first
disbursement order, arguing, as relevant here, that the order was
contrary to applicable law. The Director dismissed the petition,
concluding that the order was not subject to review because it did
not award or deny a benefit or penalty.
¶ 12 Respondents then filed a petition for review by the Panel and a
brief in support of their petition. The Panel concluded that (1) the
Director’s order was reviewable to determine whether he had
exceeded his authority; (2) the ALJ had already determined Amaya’s
proportionate share of the lump sum (25%); and (3) the Director’s
findings were insufficient to determine whether he had correctly
applied section 8-43-406(3). So the Panel set aside the Director’s
order and remanded the case for the Director to make additional
findings and enter a new order.
¶ 13 On remand, the Director again awarded Amaya 50% of the
maximum lump sum allowed by statute (second disbursement
order), finding that
 sections 8-42-121 and 8-43-406(3) are in different
articles, have different methods of apportionment, and
are unrelated;
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 the authority to determine the proportionate share of a
lump sum is wholly distinct from and not contingent on
the authority to apportion benefits;
 the ALJ did not determine the proportionate share of the
lump sum;
 the “proportionate or equal share of the maximum lump
sum available [is] based on the number of dependents
when the first lump-sum request is made”;
 Amaya is entitled to one-half of the maximum lump sum
because she is one of two dependents; and
 I.R.’s interests are not affected because Amaya’s request
did not change his ability to request his separate,
individual share of the lump sum.
¶ 14 After respondents filed a petition to review the second
disbursement order, the Director issued a supplemental order
directing respondents to comply with that order. The supplemental
order reiterated that section 8-43-406(3) gives the Director the
authority to apportion lump sums among multiple dependents and
that authority, which was “a mere variation in the mechanism of
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payment” and is “wholly distinct [from] and not contingent upon the
authority to apportion benefits.”
¶ 15 Respondents then filed a petition for review by the Panel and a
brief in support of their petition, arguing that the ALJ’s
apportionment of death benefits under section 8-42-121 applies to
the proportionate share under section 8-43-406(3) when a
dependent requests a lump-sum disbursement.
¶ 16 On review, the Panel set aside the Director’s supplemental
order, concluding that the order was appealable, the Director had
misapplied section 8-43-406(3), and Amaya is only entitled to 25%
of the maximum lump sum allowed by statute. Regarding the
appealability of the order, the Panel reasoned that, although a
lump-sum order is generally not appealable, the order is appealable
if the Director exceeded his authority or failed to act. The Panel
concluded that the Director misapplied section 8-43-406(3) and
exceeded his authority by granting Amaya 50% of the maximum
lump-sum amount because it essentially increased the amount of
benefits to which she is entitled. In support of its conclusion, the
Panel determined that
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 the legislature removed the Director’s discretionary
authority to determine a lump-sum amount in 2007;
 before 2014, each dependent in a claim could elect to
take the maximum individual lump-sum amount;
 after 2014, the legislature added subsection (3) to
section 8-43-406 so that one lump-sum amount should
be split between dependents in a single claim in
proportionate shares;
 the legislature’s use of the phrase “proportionate share”
— combined with its removal of the Director’s
discretionary authority to determine a lump-sum award
— shows that it intended for the share to be determined
by the original award of compensation;
 if the legislature had intended to allow the Director to
determine a dependent’s portion of the lump sum in an
amount different from the original death benefit award,
it could have said so; and
 instead, the legislature referenced the “proportionate
share” of the “awarded” compensation.
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II. Reviewability of the Director’s Award
¶ 17 Amaya argues that the Director’s order is not subject to review
because (1) lump-sum orders are only procedural and ministerial in
nature and do not create, eliminate, or modify a party’s vested
rights or liabilities; (2) the order only addressed the manner and
timing of her receipt of a portion of the death benefits; and (3) the
order apportioning total death benefits and the order determining
the proportionate share of the lump-sum amount did not divide
portions of the same pie. We conclude that we may review the
Director’s order.
¶ 18 In a workers’ compensation case, a party may file a petition to
review an order that (1) “determines compensability of a claim or
liability of any party”; (2) “requires any party to pay a penalty or
benefits”; or (3) “denies a claimant any benefit or penalty.”
§ 8-43-301(2)(a)(I), C.R.S. 2022. However, the statute does not
provide for the review of procedural orders. See id. Thus, a
lump-sum order is generally not subject to review because it does
not grant or deny a benefit or a penalty. See Specialty Rests. Corp.
v. Nelson, 231 P.3d 393, 400 (Colo. 2010) (“An employee’s choice to
receive a lump sum payment does not create, eliminate, or modify
8
vested rights or liabilities” but only “alters the method of
distribution of the existing award.”).
¶ 19 Yet, such an order is reviewable if the Director exceeds his
authority or fails to act. Even before 2007, when the lump-sum
statute expressly provided that “the [D]irector’s order shall be final
and not subject to review,” see § 8-43-406(1), C.R.S. 2006, a
lump-sum order was reviewable if the Director acted “in excess of
the authority granted that office” or “fail[ed] to act.” Warren v. S.
Colo. Excavators, 862 P.2d 966, 969 (Colo. App. 1993).
¶ 20 Because respondents asserted that the Director exceeded his
authority by awarding Amaya 50% of the lump sum when the ALJ
only apportioned 25% of the death benefits to her, the order is
reviewable. Thus, we may review the order to determine whether
the Director exceeded his authority.
III. Lump-Sum Award
¶ 21 Amaya argues that the Panel conflated the ALJ’s authority to
apportion benefits under section 8-42-121 with the Director’s
authority to apportion lump-sum disbursements under section
8-43-406(3) because (1) the legislature did not link the statutes,
and (2) the Director’s interpretation of the phrase “proportionate
9
share” — as dividing the maximum lump sum available by the
number of dependents — is reasonable and should be given
deference. She contends that the Panel’s interpretation (1) ignored
the fact that, when there are multiple dependents, a dependent’s
percentage share of the death benefits varies over time based on the
age, death, or remarriage of a dependent; (2) did not consider the
actual share a dependent will receive over a lifetime; (3) deprived
the Director from considering the totality of the circumstances,
such as whether the dependents reside in the same household or
are hostile to each other; and (4) failed to defer to the Division’s
interpretation of the statute.
A. Standard of Review
¶ 22 We review de novo the Panel’s interpretation of sections
8-42-121 and 8-43-406(3). See Fisher v. Indus. Claim Appeals Off.,
2021 COA 27, ¶ 15. We also review de novo questions of law and
the application of law to undisputed facts. See id. at ¶ 14. We are
not bound by the Panel’s decision if it misconstrues or misapplies
the law. See id.
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B. Principles of Statutory Construction
¶ 23 “Our primary objective in construing a statute is to effectuate
the intent of the General Assembly.” Specialty Rests., 231 P.3d at
397. In determining that intent, we construe the statutory scheme
as a whole in a manner that gives “consistent, harmonious, and
sensible effect to all parts.” In re Marriage of Wenciker, 2022 COA
74, ¶ 17 (citation omitted).
¶ 24 “If the statutory language is clear, we interpret the statute
according to its plain and ordinary meaning.” Specialty Rests., 231
P.3d at 397. In so doing, we “give effect to every word and render
none superfluous because we ‘do not presume that the legislature
used language idly and with no intent that meaning should be given
to its language.’” SkyWest Airlines, Inc. v. Indus. Claim Appeals Off.,
2020 COA 131, ¶ 31 (quoting Lombard v. Colo. Outdoor Educ. Ctr.,
Inc., 187 P.3d 565, 571 (Colo. 2008)). The legislature’s failure to
include certain language is also a “statement of legislative intent.”
Specialty Rests., 231 P.3d at 397.
¶ 25 We defer to the Panel’s reasonable interpretation of a statute it
administers, but we are not bound by that interpretation. See
SkyWest, ¶ 32. “Still, ‘the Panel’s interpretation will be set aside
11
only if it is inconsistent with the clear language of the statute or
with the legislative intent.’” Id. (quoting Support, Inc. v. Indus. Claim
Appeals Off., 968 P.2d 174, 175 (Colo. App. 1998)).
¶ 26 Moreover, “we traditionally give deference to the interpretation
of a statute adopted by the officer or agency charged with its
administration.” Specialty Rests., 231 P.3d at 397. “The Division is
the agency charged with administration of the Colorado Workers’
Compensation Act,” which includes “the calculation of lump sum
payments.” Id. But we do not defer to the agency’s interpretation
when that interpretation is contrary to statutory law. Gessler v.
Colo. Common Cause, 2014 CO 44, ¶ 7.
C. Analysis
¶ 27 There is no dispute that the ALJ apportioned the death
benefits among Amaya (25%) and I.R. (75%) in a just and equitable
manner pursuant to section 8-42-121. The parties instead disagree
about whether that apportionment controls a dependent’s
proportionate share of a lump sum under section 8-43-406(3).
¶ 28 After six months have elapsed from the date of injury, a
dependent may elect to receive part of the death benefits awarded in
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a lump sum. § 8-43-406(1). The maximum lump sum allowed by
statute is adjusted annually by the Director. See § 8-43-406(4).
¶ 29 “[A] lump sum is an advance payment of the amount the
[recipient] is entitled to receive via bi-weekly payment over the
remainder of her life expectancy, reduced by four-percent to
discount for present value and capped at the maximum aggregate
provided by statute.” Specialty Rests., 231 P.3d at 398. If she is
“entitled to more than the maximum aggregate lump sum available,
her remaining bi-weekly payment is reduced by the amount of the
lump sum payment spread out over the remainder of her life
expectancy.” Id.
¶ 30 When there are multiple dependents and one of them elects to
receive a lump-sum payment, the dependent may receive a
“proportionate share” of the maximum lump sum allowed by
statute. § 8-43-406(3).
¶ 31 In this appeal, the parties dispute how a dependent’s
proportionate share should be determined. Amaya and the Division
argue that the Director has the authority to determine a
dependent’s proportionate share independent of the apportionment
of death benefits under section 8-42-121. They urge us to adopt
13
the Division’s interpretation that a proportionate share is
determined by the number of dependents at the time a lump sum is
requested. Under that interpretation, Amaya and I.R. (the two
dependents) each would be entitled to receive 50% of the maximum
lump sum allowed by statute.
¶ 32 On the other hand, respondents and the Panel argue that
sections 8-42-121 and 8-43-406(3) must be construed together as
part of the broader statutory scheme. They contend that the
apportionment of death benefits under section 8-42-121 necessarily
determines a dependent’s proportionate share of the maximum
lump sum allowed under section 8-43-406(3).
¶ 33 We agree with the latter interpretation. In construing section
8-43-406(3), we must consider the statutory scheme as a whole.
See Wenciker, ¶ 17. Under that statutory scheme, a dependent’s
benefits are determined under section 8-42-121. That statutory
section is located in the article entitled “Benefits.” And those
benefits are apportioned among the dependents in a “just and
equitable” manner.
¶ 34 “Apportioned” means “to divide and assign in proportion:
divide and distribute proportionately.” Webster’s Third New
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International Dictionary 105 (2002). Similarly, “apportionment” is
defined as the “[d]ivision into proportionate shares; esp., the
division of rights and liabilities among two or more persons.”
Black’s Law Dictionary 125 (11th ed. 2019).
¶ 35 Only after the death benefits have been apportioned among
the dependents — that is, after they have been divided and assigned
in proportionate shares — may one of the dependents request the
disbursement of those funds in a lump sum under section
8-43-406(3). The legislature placed the lump-sum statute in an
article entitled “Procedure,” which is in Part 4, labeled “Enforcement
and Penalties.” See Specialty Rests., 231 P.3d at 397 (“We hold that
the lump sum provision of the Colorado Workers’ Compensation Act
is procedural in nature.”). The placement of the statute shows that
the legislature intended for a lump-sum disbursement to act as a
mechanism to receive an advance payment of a benefit that has
already been awarded. See id. (stating that “a lump sum payment
does not create, eliminate, or modify the parties’ existing rights or
liabilities” and that “an employee’s election of a lump sum payment
simply alters the method of distribution of an existing award”).
15
¶ 36 Indeed, the plain meaning of the language of section
8-43-406(3) confirms this intent. It begins, “If a claimant who has
been awarded compensation is one of multiple dependents.”
§ 8-43-406(3) (emphasis added). Thus, subsection (3) of the
lump-sum statute relates back to section 8-42-121, under which
the benefits are initially apportioned among and awarded to the
dependents.
¶ 37 Subsection (3)’s language also states that “the aggregate of all
lump sums granted to the claimant must be a proportionate share,
as determined by the director or [ALJ].” Id. (emphasis added). The
word “determined” is in the past tense, which suggests that the
proportionate share has already been apportioned to the dependent
when the dependent elects to receive a lump-sum payment.
¶ 38 This interpretation is supported by the legislature’s prior use
of the present tense when granting the Director the authority to
determine whether to award a claimant a lump-sum payment.
Before 2007, section 8-43-406(1) gave the Director substantial
discretion in determining whether to make such an award. At that
time, the section read,
16
At any time after six months have elapsed from
the date of injury, the director, in the exercise
of discretion, after five days’ prior notice to the
parties, may order payment of all or any part
of the compensation awarded in a lump sum,
or in such manner as the director may
determine to be for the best interests of the
parties concerned, and the director’s order
shall be final and not subject to review.
§ 8-43-406(1), C.R.S. 2006 (emphasis added). The use of the
present tense “determine” in the former version of the statute,
contrasted with the use of the past tense “determined” in the
current version of the statute, supports a conclusion that the
legislature’s use of the past tense means that the Director or the
ALJ has already determined a dependent’s proportionate share
when the request for a lump sum is made.
¶ 39 This interpretation is also supported by the legislature’s
amendment of the statute in 2007 to remove the Director’s
discretion in awarding a lump sum to a claimant. See Ch. 341, sec.
9, § 8-43-406(1), 2007 Colo. Sess. Laws 1475; see also Specialty
Rests., 231 P.3d at 399. That revision gave the claimant the ability
to elect a lump-sum payment based on the benefits that had
already been awarded.
17
¶ 40 And when the legislature added subsection (3) to section
8-43-406 in 2014, it delineated the manner for dividing the
maximum lump sum allowed by statute between multiple
dependents based on the benefits that had already been awarded
and in the proportionate share that had already been “determined.”
Ch. 316, sec. 9, § 8-43-406(3), 2014 Colo. Sess. Laws 1375.
¶ 41 We therefore conclude that the apportionment of benefits
among the dependents under section 8-42-121 controls a
dependent’s proportionate share of the maximum lump sum
allowed by statute under section 8-43-406(3). Therefore, we agree
with the Panel that Amaya is only entitled to receive 25% of the
maximum lump sum available in this claim. I.R. is entitled to
receive the other 75% if he elects to request a lump sum.
¶ 42 In reaching this conclusion, we reject Amaya’s argument that
the legislature did not link the statutes. Both statutes are part of
the same statutory scheme. And a dependent may not request a
lump sum under section 8-43-406(3) until the benefits have first
been apportioned under section 8-42-121.
¶ 43 We also reject Amaya’s contention that we should defer to the
Division’s interpretation of the phrase “proportionate share” — as
18
meaning dividing the available lump sum by the number of
dependents — because it is reasonable. That interpretation is not
reasonable for the above stated reasons. Therefore, we need not
defer to the Division’s interpretation of section 8-43-406(3).
¶ 44 Amaya also argues that the Panel did not consider that, when
there are multiple dependents, a dependent’s percentage share
varies over time based on age, death, or remarriage; the dependent’s
expected benefit over her lifetime; or the totality of the
circumstances. However, after the legislature removed the
Director’s discretion in determining a lump-sum award, the only
relevant factor is a dependent’s proportionate share at the time the
lump sum is requested. Thus, those factors are no longer relevant.
IV. Conclusion
¶ 45 The Panel’s order is affirmed.
JUDGE TOW and JUDGE YUN concur.
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