Claim Appeals Office of the State of Colorado WC No.
Office of Chris Forsyth, LLC, Chris Forsyth, Denver,
Colorado, for Petitioner.
Cynthia H. Coffman, Attorney General, Emmy A. Langley,
Assistant Attorney General, Denver, Colorado, for Respondent
Industrial Claim Appeals Office.
Lego & Associates, Jonathan S. Robbins, Gregory W. Plank,
Greenwood Village, Colorado, for Respondent Denver Water.
Appearance for Respondent Travelers Indemnity Company.
Hawthorne and Nieto [*] , JJ., concur
1 The claimant in this case challenges the constitutionality
of portions of the Workers' Compensation Act of Colorado,
sections 8-40-101 to -55-105, C.R.S. 2016 (Act). Claimant,
Michael Sanchez, contends that using administrative law
judges (ALJs) and the Industrial Claim Appeals Office
(Panel), from the state's executive branch, violates
equal protection and the separation of powers. He also
challenges the constitutionality of section
8-43-404(5)(a)(II)(A), C.R.S. 2016, which exempts
governmental entities from providing an injured worker with a
list of four physicians from whom the worker may seek medical
care for his or her injury. Because we reject these
constitutional arguments, and are not persuaded by
claimant's remaining contentions, we affirm the
Panel's decision denying and dismissing claimant's
request for temporary disability benefits.
2 Claimant works for Denver Water in the leak detection
department. On March 25, 2015, he sustained a back injury
lifting a hydraulic unit from his truck. He felt immediate
back pain, reported his injury, and was sent to an in-house
clinic for treatment and evaluation. Claimant described his
injury as "pain to right low back, " but a pain
diagram he completed that day illustrated aching and stabbing
pain mid-way between his armpit and hip. Dr. Hugh Macaulay,
the part-time physician at the clinic, diagnosed claimant
with an injury to the "upper back (thoracic area) on the
right side of the body."
3 A week later, Dr. Macaulay reported that claimant was
"doing markedly better than on his last visit." Two
and half weeks later, claimant reported that his "pain
is much less" and rated it "as 1-1.5/10." By
May 13, 2015, claimant had been released to full duty with no
restrictions. Dr. Macaulay placed claimant at maximum medical
improvement (MMI) for his mid-back injury on June 3, 2015.
4 However, after he was placed at MMI, claimant complained of
"significantly more discomfort in his mid-back
area." An MRI of the thoracic spine was
"benign." He also told his physical therapist a day
earlier that he had "excruciating" lower back pain.
5 Claimant returned for a follow-up visit with Dr. Macaulay
in July 2015 complaining of low back pain. He told Dr.
Macaulay that another physician had diagnosed "lumbar
strain, thoracic strain and depression." But both Dr.
Macaulay and a specialist concluded that claimant's
lumbar strain was not work-related. Based on an MRI study of
claimant's low back, Dr. Macaulay opined that
claimant's low back pain was associated with "normal
age-related" degenerative changes.
6 Claimant sought temporary partial disability (TPD) benefits
from the date of his injury and temporary total disability
(TTD) benefits from June 2015 when his low back pain flared.
But an ALJ rejected claimant's request for benefits,
finding that his low back pain was unrelated to his work
injury. The ALJ also found that because claimant had
continued working, he had not suffered a wage loss and
therefore was not entitled to either TPD or TTD benefits. On
that basis, the ALJ denied and dismissed claimant's
request for both TTD and TPD benefits. The Panel affirmed the
ALJ's rulings, but it remanded the case to the ALJ to
address whether claimant was entitled to a change in his
physician. Claimant now appeals.
Issues Raised are Final for Purposes of This Appeal
7 We begin by addressing Denver Water's assertion that
claimant's appeal should be dismissed for lack of
finality. Denver Water argues that because the Panel remanded
part of the ALJ's order for further consideration, the
order was not final for appeal and the appeal should be
dismissed. We disagree.
8 Section 8-43-301(2), C.R.S. 2016, permits "[a]ny party
dissatisfied with an order that requires any party to pay a
penalty or benefits or denies a claimant any benefit or
penalty [to] file a petition to review with the
division." Thus, to be final and appealable, an
ALJ's order "must grant or deny benefits or
penalties." Flint Energy Servs., Inc. v. Indus.
Claim Appeals Office, 194 P.3d 448, 449-50 (Colo.App.
2008); accord Ortiz v. Indus. Claim Appeals Office,
81 P.3d 1110, 1111 (Colo.App. 2003).
9 Because the Panel affirmed the ALJ's decision denying
claimant's request for TPD and TTD benefits, that portion
of the ALJ's order is final and appealable. We therefore
turn to the merits of claimant's appeal. We first address
claimant's various constitutional arguments, and then we
consider his other claims for relief.
Separation of Powers
10 Claimant argues that the separation of powers doctrine is
violated "by having workers' compensation cases
heard in the executive branch." He contends that
"workers' compensation cases involve private rights
that are properly heard by judicial branch judges." We
are not persuaded.
11 "Article III of the Colorado Constitution prohibits
one branch of government from exercising powers that the
constitution vests in another branch." Dee Enters.
v. Indus. Claim Appeals Office, 89 P.3d 430, 433
(Colo.App. 2003). The "separation of powers doctrine
does not require a complete division of authority among the
three branches, however, and the powers exercised by
different branches of government necessarily overlap."
Id. Dee Enterprises held that the statutory scheme
for deciding workers' compensation cases does not violate
the separation of powers doctrine and that "review by
this court of the Panel's final orders for errors of law
and abuse of discretion is sufficient to protect the proper
exercise of judicial function." Id. at 437.
12 Claimant nevertheless argues that the United States
Supreme Court cases on which Dee Enterprises relied,
Thomas v. Union Carbide Agricultural Products Co.,
473 U.S. 568 (1985), and Crowell v. Benson, 285 U.S.
22 (1932), directly contradict the principles espoused in
Dee Enterprises. But we conclude that Dee
Enterprises thoroughly and properly analyzed this issue
and faithfully followed the precedent of Thomas and
13 The Fourteenth Amendment to the United States Constitution
provides that "[n]o state shall . . . deny to any person
within its jurisdiction the equal protection of the
laws." Although the Colorado Constitution does not
contain an identical provision, "it is well-established
that a like guarantee exists within the constitution's
due process clause, Colo. Const. art. II, sec. 25, and that
its substantive application is the same insofar as equal
protection analysis is concerned." Qwest Corp. v.
Colo. Div. of Prop. Taxation, 2013 CO 39, ¶ 22
(quoting Lujan v. Colo. State Bd. of Educ., 649 P.2d
1005, 1014 (Colo. 1982)), abrogated on other grounds by
Warne v. Hall, 2016 CO 50.
14 We address, and reject, each of claimant's equal
protection challenges in turn.
Standard of Review
15 Claimant first asserts that his equal protection
challenges should be analyzed under a strict scrutiny
standard, rather than under a rational basis review.
Under equal protection law, judicial scrutiny of a statute
varies according to the type of classification involved and
the nature of the right affected. The rational basis standard
of review applies when a legislative classification does not
involve a suspect class or abridgement of a fundamental right
triggering strict scrutiny and also when the classification
does not trigger an intermediate standard of review.
Culver v. Ace Elec., 971 P.2d 641, 645-46 (Colo.
1999) (citations omitted). "A legislative enactment
which infringes on a fundamental right or which burdens a
suspect class is constitutionally permissible only if it is
'necessary to promote a compelling
state interest, ' and does so in the least restrictive
manner possible." Evans v. Romer, 882 P.2d
1335, 1341 (Colo. 1994) (quoting Dunn v. Blumstein,
405 U.S. 330, 342 (1972)), aff'd, 517 U.S. 620
(1996). In contrast, "[u]nder the rational basis
standard of review, a statutory classification will stand if
it bears a rational relationship to legitimate governmental
objectives and is not unreasonable, arbitrary, or
capricious." HealthONE v. Rodriguez,
50 P.3d 879, 893 (Colo. 2002). Claimant asserts that because
his fundamental right to a fair hearing is threatened by
using non-judicially selected and retained ALJs and Panel
members, his claim should be analyzed under the strict
16 But, "[n]ot all restrictions on fundamental rights
are analyzed under a strict scrutiny standard of review,
" Rocky Mountain Gun Owners v. Hickenlooper,
2016 COA 45M, ¶ 19, and, as Culver held,
"[r]eceipt of workers' compensation benefits is not
a fundamental right." Culver, 971 P.2d at 646.
Indeed, we have found no case, and claimant has not cited any