Death Benefits

The ICAO  determined several issues connected to death benefits. First, the Panel considered whether the claimant entered into a common law marriage with the decedent sufficient to consider her his dependent. Second, it considered whether it was within the administrative law judge’s (ALJ) discretion to order the respondents to pay for a Guardian ad Litem (GAL) for the minor claimant.

Decedent died from an accident arising out of and within the course and scope of employment. . At the time, decedent had been in a relationship with the claimant and    claimant was pregnant with decedent’s child at the time of his death. Thereafter, the claimant filed a Dependent Notice and Claim for Compensation, alleging she was the decedent’s common law spouse. The matter went to hearing.

The ALJ determined that the claimant was a dependent for several reasons. First, the decedent’s death certificate listed claimant as his wife. Second, claimant and her family members introduced testimony from the decedent that he asked claimant’s mother for her daughter’s hand in marriage the day they met. Third, decedent referred to claimant as “my lady”  or his “old lady” which the ALJ decided was a synonym for “wife.” Most important in Colorado law, decedent and claimant cohabited and held themselves out to be married to the community.

The ALJ apportioned these benefits 80% to claimant and 20% to the decedent’s minor claimant, as well as ordering the respondents pay for a GAL for the minor claimant.

On appeal, the respondents challenged both conclusions.

First, they argued that the statements regarding decedent’s intention to marry claimant violated C.R.S. § 13-90-102 – otherwise known as the Dead Man’s Statute. The Panel determined that the Dead Man’s Statute will not preclude the entry of a decedent’s statements so long as there is corroborating evidence, and that corroborating evidence “be material to the underlying issue and tend to confirm, strengthen and show the probable truthfulness of the party’s testimony.” Therefore, because the decedent’s statements were corroborated by the evidence of cohabitation, the fact a child was conceived, and that the claimant was listed as decedent’s wife on his death certificate, the Panel affirmed the ALJ’s holding that the testimony was not barred by the Dead Man’s Statute.

Second, the respondents argued that the ALJ abused her discretion by order them liable for the costs of the GAL. The Panel affirmed the ALJ’s order because of the stipulation agreement between the respondents and minor claimant, which stated that the agreed to pay the reasonable fees of the GAL.

Botello and Munoz v. Evergreen Caissons, Inc., W.C. No. 4-962-974-01 and 4-962-974-02 (ICAO Nov. 13, 2017).

Would you like to know more? Contact Eric J. Pollart at or 720.488.9586.


From the January 2018 Pollart Miller Newsletter