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Colorado Workers’ Compensation Death Benefit Cases
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Introduction To Colorado Workers’ Compensation Death Claims
The Colorado Workers’ Compensation Court has determined that the term “Actually Dependent” means a surviving spouse, a child or any other person who receives one-half (1/2) or more of his or her support from the employee. 85A O.S. § 2.1
“Child” means a natural or adopted son or daughter of the employee under (18) years of age; or a natural or adopted son or daughter of an employee eighteen (18) years of age or over who is physically or mentally incapable of self-support; or any natural or adopted son or daughter of an employee eighteen (18) years of age or over who is actually dependent; or any natural or adopted son or daughter of an employee between eighteen (18) and twenty-three (23) years of age who is enrolled as a full-time student in any accredited educational institution. The term “child” includes a posthumous child, a child legally adopted or one for whom adoption proceedings are pending at the time of death, an actually dependent stepchild or an actually dependent child born out of wedlock.
Death Cases Covered Under Colorado Workers Compensation Law
Determining Whether Or Not The Death Is As A Result Of Worker’s Work Assignment
Under Colorado Workers’ Compensation Law to rise to the level of a death benefit case—the injured worker’s injury and resultant death must be the result of a compensable accident which arises out of the course and scope of the deceased worker’s employment. 85A O.S. § 3.A The Colorado Workers’ Compensation Court has determined that the term “course and scope of employment” means any activity for which the deceased worker was hired and that otherwise relates to and derives from the work, business, trade or profession of an employer, and is performed by an employee in the furtherance of the affairs or business of an employer. “Course and scope” includes activities conducted on the premises of an employer or at other designated by that employer. would also include travel by an employee in furtherance of the affairs of an employer that is specifically directed by the employer.Said injury and death must be one that is:
- unanticipated, unforeseen, unplanned, unexpected and otherwise unintended;
- happened at a well-defined place and time;
- occurred by chance or from an unknown cause.
Any death which occurs during any of the following would not constitute a workers’ compensation death case in Colorado:
- travel by the deceased worker either to or from his or her usual designated work site
- travel by the deceased employee which, although benefiting his or her employer, is in furtherance of personal or private affairs of the deceased worker.
- Injury and resulting death caused in a significant way by the willful intention of the employee to bring about that injury or death (i.e. suicide). 85A O.S. § 35.A.2 However—the Colorado Workers’ Compensation Court has put forth by rule that there shall be a rebuttable presumption that the injury was not caused by any willful intention of the deceased worker to bring about injury death or injury to himself or herself. 85A O.S. 74.3
“Major Cause” means more than fifty percent (50%) of the resulting injury, disease or illness. A finding of major cause shall be established by a preponderance of the evidence.
“Objective findings” are those findings which cannot come under the voluntary control of the patient.
Under Colorado Workers’ Compensation Law expert medical opinions about whether an individual’s workplace or duties caused a certain medical condition and whether or not that condition caused or led to a worker’s death must be stated within a reasonable degree of medical certainty. 85A O.S. § 2.3 & 85A O.S. § 45C.1
Colorado Death Benefits Payable For Heart Attacks, Strokes Or Pulmonary Injuries
Under Colorado Workers’ Compensation Law a worker’s death caused from any of the following events is covered only if, in consideration of all other factors which contribute to cause the condition, the deceased employee’s work was the major, or predominant cause, of the condition causing the death:
- Myocardial infarctions, heart attacks and other cardiovascular or coronary injury and/or disease
- Cerebrovascular Accidents, strokes
- Pulmonary embolism and other respiratory injury. 85 O.S. § 14.A
For a stroke or heart attack death benefit case to be covered under Colorado law the surviving spouse and/or other dependents must prove to the Court that
- any exertion of the deceased employee’s work which caused the heart attack or stroke was unusual and in excess of the deceased worker’s normal job; or
- that some unusual and unprecedented event occurred to the deceased employee which led to his or her death. 85A O.S. § 14.B
Death Caused By Pre-Existing Condition Not Covered Under Colorado Law
The Colorado Workers’ Compensation Court has determined that a worker’s death which is caused in fact by his or her pre-existing condition, instead of a work-related event or exposure, is not covered under the Compensation Act. To this end—the Colorado Workers’ Compensation Court has defined a “pre-existing condition” as that injury, illness, disease or other physical condition for which medical treatment, surgery, or for which a medical diagnosis is given or even merely recommended—and it does not matter that the prior condition be work-related. 85 O.S. § 36
Employee Must Be Hired In Or Injury Resulting In Death Must Occur In Colorado
For an death case to be covered under the Colorado Workers’ Compensation Law one or both of the following must have occurred:
- The injury which resulted in the worker’s death must have occurred in the State of Colorado.
- The deceased worker must have been hired in Colorado—although his or her work, injury or even death may occurred in another state. 85A O.S. § 3.A
Cash Amount Of Death Benefits Paid In Colorado Workers’ Compensation Case
“State Average Weekly wage” means the state average weekly wage determined by the Colorado employment Security Commission in the preceding calendar year
To Whom Are Benefits Paid In An Colorado Workers’ Compensation Death Benefit Case?
In Colorado it has been determined that a decedent’s surviving spouse means only that one individual that is deemed to have been legally married to the deceased worker at the time of the injury causing the death of the worker. Whether the deceased was legally married to the person seeking workers’ comp benefits is as determined by the laws of Colorado. Since Colorado is a common law marriage state—a surviving spouse would also include a common law husband or wife as that status is determined by the laws of Colorado. 85A O.S. § 2.45 It should be noted in cases where death precedes the injury by some time—it is only a spouse that is married to the deceased worker at the time of the injury, not death, that would be entitled to benefits under the Colorado Workers’ Compensation Law. 85A O.S. § 2.45
Workers’ Compensation Benefits Paid To Common Law Spouse Under Colorado Law
In Colorado one claiming to be a ‘common law’ spouse will not be entitled to share in death benefits unless and until a proper order from the Colorado Workers’ Compensation Court is made finding that a common law marriage indeed did exist between that individual and the deceased worker. As long as the Colorado Workers’ Compensation Court has spoken on this issue any order and/or judgment from any other court to the contrary is of no significance. 85A § 47.B
Periodic Death Benefits Payable To Surviving Spouse Under Colorado Compensation Law
The surviving spouse will receive a weekly benefit calculated at seventy-percent (70%) of the deceased worker’s average weekly wage up to a maximum weekly benefit capped at one-hundred percent (100%) of the state’s average weekly wage at the time of the worker’s death. 85A O.S. § 47C.1
Weekly Death Benefits Payable To Surviving Spouse Not Reduced By Payments To Other Dependents
The weekly cash benefit payable to the surviving spouse as described above:
- will continue while that surviving spouse remains alive and unmarried; and
- in no event will this benefit be diminished or otherwise effected by the award or payment of weekly benefits to children of the deceased worker. 85A O.S. § 47.D.
Periodic Death Benefits Paid To Children Where There Is Surviving Spouse
If there is one or more children as well as a surviving spouse all otherwise entitled to benefits under Colorado Law–fifteen percent (15%) of the deceased worker’s average weekly wage calculated at the time of his or her death will be paid to each child. However–if there are three or more children each such child will receive a weekly cash payment equal to a pro rata share of thirty-percent (30%) of the deceased worker’s average weekly wage at the time of his or her death. 85A O.S. § 47.C.2
Weekly Death Cash Benefits Paid To Child Or Children In Cases Where There Is No Surviving Spouse
In cases where there is two or less surviving children and the decedent left no surviving spouse (i.e. a ‘single parent’) then to each child a weekly cash benefit calculated at 50% of the deceased employees average weekly wage at the time of his or her death–the combination of which benefits are also capped at one-hundred percent (100%) of the state average weekly wage. In any case where there are three or more surviving children, and again no surviving spouse, then to each child an equal or pro rata share of one-hundred percent (100%) of those childrens’ deceased parent’s average weekly wage at the time of that employee’s death.
Events That Will Terminate Weekly Cash Benefit Payments To Surviving Child Or Children
Under Colorado Workers Compensation Law a surviving child of the deceased worker’s weekly death benefit check will terminate when any of the following first occur:
- death of such child;
- marriage of child; or
- reaching the age of eighteen (18). However, a surviving child, reaching the age of eighteen but not yet age twenty-three, will continue to receive a weekly check if the child is either a full-time high school, college, vocational or technology school student. 85A O.S. § 47D
NOTE: Any surviving disabled child, otherwise incapable of self support, will continue to receive a weekly workers’ compensation death benefit as long as he or she is still incapable of self-support or until death. 85A O.S. § 47.D
Recalculation Of Child’s Weekly Death Benefit Check Upon Another Child’s Ineligibility To Receive Ongoing Check
It is understood that most weekly cash benefit checks paid to surviving children will end upon that child becoming an adult. When this happens, and he or she becomes ineligible for an ongoing death benefit check, benefits to the remaining child or children will be recalculated so that the remaining and eligible children will receive an increased amount calculated as an equal amount to the new class size. 85A O.S. § 47.E.
Lump Sum Cash Payments To Deceased Worker’s Survivors
In Colorado a surviving spouse will receive an immediate lump sum cash payment of one-hundred thousand dollars ($100,000.00) upon the death of the worker/spouse. A surviving spouse in Colorado will also receive upon remarriage a lump sum cash benefit calculated at one-hundred and four times the weekly benefit being paid to that spouse. 85A O.S. § 47.C.1
With Surviving Spouse
If there is both a surviving spouse and a child or children to each child a one-time lump sum cash payment of twenty-five thousand dollars ($25,000.00). However–if there is a surviving spouse and three or more children each child will share in an equal share of $50,000.00. 85A § 47.C.2
With No Surviving Spouse
In cases where there are surviving children and the decedent left no surviving spouse each such child, up to six children, will receive an immediate cash lump sum payment of twenty-five thousand dollars ($25,000.00) upon the death of such children’s parent. In any case where there are seven or more dependent children of the deceased worker, then each such child will receive an immediate lump sum cash benefit which will be in an amount equal to a pro rata share with other children of the sum of one-hundred fifty-thousand dollars ($150,000.00). 85A O.S. § 47.C.3
NOTE: Where death benefit monetary compensation is payable to the benefit of a minor child that benefit will, at the direction of the Colorado Workers’ Compensation Court, be paid to a legally designated representative to use for the benefit of the minor dependent. 85A O.S. § 84B That person will usually be the surviving spouse.
Monetary Compensation Benefits Are Not Payable Or Considered Assets Of Deceased Worker’s Estate
The weekly or lump-sum cash benefits described above, otherwise payable to the worker’s family, by law are not considered to be assets of or otherwise payable to the estate of the deceased worker. To be clear—these benefits are payable to the worker’s dependents only and not to the decedent’s creditors and others making claims against the deceased employee’s estate. 85A O.S. § 10.A
Death Benefits Payable To Alien Nonresident Dependents Living Outside The United States
Under Colorado Workers’ Compensation Law the only alien nonresident dependents of the deceased worker living outside the United States who are entitled to Death Benefits are that worker’s surviving spouse and children—or if it is that there is no such surviving spouse and/or children, then to the deceased worker’s parents who the worker supported in the full year before the injury causing death. 85A § 11
Death Benefits Payable For Depression, Anxiety, Post Traumatic Stress Disorder (PTSD) And Other Mental Injury
The types and the proof necessary to win a depression, anxiety, Post-Traumatic Stress Disorder or other mental injury case is discussed in detail elsewhere on this site. However—if an injured worker and/or his or her Denver workers’ compensation attorney have established a compensable mental injury under law, benefits are payable as follows.
Under Colorado workers’ compensation law—in cases where death results directly from the mental injury and/or illness, i.e. a suicide, within one (1) year of the date of injury in the case—full death benefits are due and payable to, and in the amounts, as discussed above. However—any suicide otherwise related to the work injury occurring more than one year from the accident or incident causing the mental injury will conclusively be determined to be not work related. 85A O.S. § 13.B.2
Presumption That Death Occurring More Than One Year After Injury Not Caused By That Injury
If a worker’s death occurs more than one (1) year after the injury that is attributed to that death–Under Colorado law there is a legal presumption that the death was not caused by that injury. However–the deceased worker’s dependent(s) and/or such dependents’ Colorado City or Denver Workers’ Compensation Lawyer can rebut or overcome that presumption with proper medical evidence to the contrary. 85A O.S. § 47.A
Employer Of Deceased Employee To Pay Actual Funeral And Other Burial Expenses Up To $10,000
Under Colorado Law a deceased worker’s employer and/or its workers’ compensation insurance company will be required to pay funeral expenses up to a maximum amount of ten thousand dollars ($10,000), for any employee killed while performing his or her job duties. 85A O.S. § 47.C.5
Employer To Pay 100% Of Hospital, Surgical And Other Medical Expenses Related To Last Illness And/Or Death
Under Colorado Workers’ Compensation Law a deceased worker’s employer is liable for and must pay one-hundred percent (100%) of the treatment related to the worker’s last illness and death—without co-pays, deductibles, maximum dollar amounts, duration limits and the like. However, payment of these expenses will be according to the Colorado Workers’ Compensation Fee Schedule. 85A O.S. § 51
Determining Deceased Worker’s Average Weekly Wage (AWW) For Calculating Dependents’ Death Benefit
The deceased worker’s average weekly wage is calculated by dividing the worker’s gross earnings by the number of full weeks that he or she worked for the employer—up to a maximum of fifty-two weeks. 85A O.S. § 59A.1 Overtime wages is to be specifically included in this calculation. O.S. 85A § 59B
Determining Average Weekly Wage In Occupational Or Industrial Disease Cases—Including Death Benefits Cases For COVID-19 (Coronavirus) And Other Infectious Disease Cases
As noted above the weekly amount of death benefits payable to dependent survivors of the deceased worker will be determined by that worker’s average weekly wage (“Average Weekly Wage”). Under Colorado Workers Compensation Law—a deceased worker’s average weekly wage where death is caused by COVID-19 (Coronavirus) or any other infectious, contagious or industrial disease is determined by the deceased worker’s weekly wage was last exposed to the contagion or infectious disease. 85A O.S. § 65E.2
Death Within One Year Of Developing Hernia Or Surgery For The Same Compensable Workers’ Comp Case Under Colorado Law
If an injured worker dies within one (1) year of the development of an umbilical hernia (or within one year of a surgical operation to fix the same) the deceased worker’s dependents will be entitled to death benefits as in other death benefit cases in Colorado. 85A O.S. § 61.C
Employer Liable For Death Of Its Employee Caused By COVID-19 (Coronavirus) And Other Occupational Diseases
Under Colorado Workers’ Compensation Law any worker who develops COVID-19 (i.e. Coronavirus) or any other occupational and/or industrial disease and thereafter dies as a result of that disease—the worker’s dependents will be entitled to death benefits to the same and full extent as would result in a more traditional traumatic or cumulative trauma injury case. 85 O.S. § 65A However—no death benefit compensation to surviving dependents will be paid where it is proven that the deceased worker misrepresented his or her medical condition to the employer as being one who had not been previously disabled by that disease or condition. 85A O.S. § 65B
Proof Necessary To Establish Employer Death Benefit Liability For All Occupational and/or Industrial Injury Cases
The Colorado Workers’ Compensation Court has determined that, to be a compensable injury in Colorado supporting an award of death benefits to survivors, an occupational disease or exposure case must be one that causes death to the worker and otherwise meets the following additional requirements:
- The disease must be incurred and otherwise arise out of and in the course of the deceased worker’s occupation or job position. Furthermore, a casual connection must be established between the worker’s employment or occupation and the development of the disease by a preponderance of the evidence, 85A O.S. § 65D.1;
- The occupational injury and resulting death must be caused by the nature of the deceased worker’s employment and in which the hazards for the development of the disease exist, 85A O.S. § 65F.1.a;
- The worker’s death occurs within one (1) year of that worker’s exposure to or development of the industrial disease, 85A O.S. § 65F.1.b; and
- The worker’s death follows that worker’s continuous and uninterrupted disability from the condition or disease, 85A O.S. § 65F.1.c.
Proof Necessary To Establish Death Benefit Liability For COVID-19 (Coronavirus) And Other Contagious Or Infectious Disease Cases Under Colorado Law
Under Colorado Workers’ Compensation Law no death benefit compensation will be due and payable to dependents of a deceased worker for COVID-19 (Coronavirus) or other contagious or infectious disease unless it is proven by the deceased worker’s dependents and/or said dependent(s) Denver or Colorado City Workers’ Compensation Attorney that the communicable disease was contracted in the course and scope of the worker’s employment. 85A O.S. § 65D.2 More specifically—no death benefits and other compensation will be paid to a decease worker’s survivors for that worker’s development of or from contracting COVID-19 (Coronavirus) or another infectious or communicable disease which can be generally described as an “ordinary disease of life” or to which members of the general public are otherwise equally exposed. 85A O.S. § 65D.3
Last Employer Where Deceased Worker Was Last Exposed To COVID-19 (Coronavirus) Or Other Industrial Disease Obligated To Pay Death Compensation To Survivors
Under Colorado Workers’ Compensation Law when it has been determined that death benefits are payable as a result of an occupational disease such as COVID-19 (Coronavirus), the employer in whose employment the deceased employee was last exposed to the Coronavirus or other contagion will alone be liable for full death benefits due the worker’s survivors, without right. 85A O.S. § 65E.1
Notice And Court Filing Requirements For Colorado Workers’ Compensation Death Cases
General Reporting Requirements For Colorado Workers’ Compensation Death Cases
The Colorado Workers’ Compensation Court has determined that, unless an injured worker who later dies from his or her injury gives oral or written notice himself or herself, or unless that worker’s representative gives that same notice where death is sudden or the worker is otherwise incapacitated, within thirty days of the injury causing death or the death itself, it is presumed that the injury or death was not work-related. Such a presumption, however, can be overcome by the deceased worker’s surviving dependents and/or such worker’s Denver or Colorado City Workers’ Compensation Attorney providing proof of the injury or death by a preponderance of the evidence. 85A O.S. § 68.A
Reporting Requirements Under Colorado Workers’ Compensation Law For Occupational Disease Death Benefit Cases—Including COVID-19 (Coronavirus) Cases
Under Colorado Workers’ Compensation Law written notice must be given by a representative of the deceased worker of that worker’s development of an occupational disease:
- within a six (6) month period after the development or first distinct manifestation of the disease; or
- within six months after the worker’s death from that disease. 85A O.S. § 67.B
Oral Or Written Notice Must Be Given By Employee Or Representative Within Thirty (30) Days Of That Worker’s Separation From Employment
In any case where a deceased worker had been fired, terminated, laid off or quit his or her job before his or her death, and it is claimed that the worker died from an occupational or industrial disease, there will be a rebuttable presumption that the occupational disease did not arise out of in the course and scope of the worker’s job detail unless the worker, or someone on his or her behalf if the worker dies or is otherwise incapacitated, gives oral or written notice to the employer within thirty (30) days of the loss of employment. Like the notice requirement in traumatic injury death cases described above—such presumption can only be overcome in court by the deceased worker’s representative or his or her Denver or Colorado City Workers’ Compensation Attorney proving that an occupational disease did indeed occur by a preponderance of the evidence. 85A O.S. § 68.B
Statute Of Limitations Period For Formally Filing Colorado Workers’ Compensation Death Benefit Cases
The statute of limitations for filing an Colorado Workers’ Compensation death case is two years from the date of the worker’s death. 85A O.S. § 69A.3 However, neglect or other failure to so file a claim within this two year period will not bar the death benefit case unless an objection to the failure to meet the statute of limitations is made by the employer’s workers’ compensation attorney at the first court hearing had on the claim in which all interested parties, including surviving dependents, are given an opportunity to be heard on the statute of limitations issue. 85 O.S. § 69B
Statute Of Limitations Does Not Run On Death Benefit Case Where Surviving Dependent Is Mentally Incompetent Or A Minor
The statute of limitations on a death benefit case does not begin to run on a minor or mentally incompetent surviving dependent as long as that dependent does not have a legal representative or guardian at the time. However, the two year statute of limitations that applies to death benefit cases in Colorado will start to run from the moment the mentally incompetent dependent somehow becomes competent or obtains a personal representative. likewise the two-year statute of limitations on a death case in Colorado commences the moment the minor obtains a legal guardian as well as when he or she reaches the age of eighteen. 85A O.S. § 69C.2
Death Case Will Be Dismissed For Failure To Prosecute If Surviving Dependent(S) Do Not Request A Hearing In Good Faith Within Six (6) Months
Even though a Death Claim has been timely filed as described above–if the surviving dependents do not request, in good faith, a hearing within six (6) months of the filing of the claim on any disputed issues–Upon proper motion of the deceased worker’s employer, Colorado law requires that the case be dismissed with prejudice for failure to prosecute. 85A O.S. § 69A.4
Necessary Documents For Perfecting & Properly Filing Death Case Under Colorado Workers’ Compensation Law
Any claim for any benefit under this act shall be commenced with the filing of an Employee’s First Notice of Claim for Compensation by the employee with the Workers’ Compensation Commission. 85A O.S. § 111A
After a claim for compensation has been properly filed—the Colorado Workers’ Compensation Court will notify the deceased worker’s employer of the filing of the claim, as well as all other interested parties, including the employer’s workers’ compensation insurance company, within ten (10) days of that filing. 85 O.S. § 71A If the employer and the insurance carrier intend to deny that the death case is work-related (or that any particular dependent has a right to cash death benefits) each will have fifteen days following notice of the death claim to file a statement that the claim is indeed denied and the specific reasons therefore. 85A O.S. § 86A.1 If an employer controverts any issue related to the Employee’s First Notice of Claim for Compensation, the employer shall file a Notice of Contested Issues on what is called a CC-Form-2A “Employer’s Intent to Controvert Claim”—which is filed with the Court electronically. OAC 810:1-1-8(e) & 810:10-1-4(b) Thereafter, the case will be assigned to a particular Administrative Law Judge who will then hold a hearing or hearings on any disputed issue of fact or law. 85A § 71B1 & 2 When deciding any such issue the ALJ will determine whether the party who has the burden of proving that issue has done so by a preponderance of the evidence. 85A § 71C.2 & 72A.3
Statements By Deceased Employee Concerning Cause Of Injury Or Death Can Be Evidence Of Cause Of Death
Last statements (also referred to as “dying declarations”) made by the now deceased worker, obviously made before he or she died, concerning the cause of the death, if otherwise corroborated by other admissible evidence, will be both received in evidence and can then be used to establish a compensable death case in Colorado. 85A O.S. § 72A.2
Lump Sum Cash Settlement Of Colorado Workers’ Compensation Death Benefit Cases
If it happens that an employer liable for death benefits and the surviving dependents choose to settle or compromise the claim—such can be done by the parties preparing, signing and filing with the Workers’ Compensation Court the terms of the settlement on a JOINT PETITION form. If the employee and employer shall reach an agreement for the full, final and complete settlement of any issue of a claim pursuant to this act, a form designated as “Joint Petition” shall be signed by both the employer and employee, or representatives thereof, and shall be approved by the Workers’ Compensation Commission or an administrative law judge, and filed with the Workers’ Compensation Commission. 85A O.S. § 115A Once the Joint Petition has been properly filed, and everything is in order, the Colorado Workers’ Compensation Court will approve the settlement and order that payment be made and declare that all claims between the parties have been resolved. 85A O.S. § 8In the absence of fraud, a Joint Petition shall be deemed binding upon the parties thereto and a final adjudication of all rights pursuant to this title or the workers’ compensation law in effect at the time of the injury or final order of the Workers’ Compensation Commission. 85A O.S. § 115An official record shall be made by an official Commission reporter of the testimony taken to effect the Joint Petition.
Weekly Death Benefits for Deaths Occuring During the Period of January 1, 2020 through December 31, 2020
The following chart represents the aggregate weekly income benefits payable to all beneficiaries of a deceased worker whose AWW equals or exceeds the SAWW of $898.63
Beneficiary or Beneficiaries
Benefit Amount for Beneficiary
Amount Per Week For All Beneficiaries
898.63 x 70%
Spouse and one (1) child
Spouse: 898.63 x 70% Child: 898.63 x 15%
Spouse and two (2) or more children
Spouse: 898.63 x 70% Children: (898.63 x 30%) ÷ (# of children) = Benefit Per Child
$629.04 Determined by divisor
No spouse, one (1) or two (2) children
898.63 x 50% to each child
No spouse, three (3) or more children
898.63 ÷ (# of children) = benefit per child
Determined by divisor
No spouse or children, actually dependent beneficiary
898.63 x 25% = benefit per beneficiary
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