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Sanchez v. Industrial Claim Appeals Office of State of Colorado

Court of Appeals of Colorado, Fourth Division

May 18, 2017

Michael Sanchez, Petitioner,
v.
Industrial Claim Appeals Office of the State of Colorado, Denver Water, and Travelers Indemnity Company, Respondents.

         Industrial Claim Appeals Office of the State of Colorado WC No. 4-978-703-01

          Law 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.

          Ray Lego & Associates, Jonathan S. Robbins, Gregory W. Plank, Greenwood Village, Colorado, for Respondent Denver Water.

          No Appearance for Respondent Travelers Indemnity Company.

          Hawthorne and Nieto [*] , JJ., concur

          ASHBY JUDGE

         ¶ 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.

         I. Background

         ¶ 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.

         II. 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.

         III. Constitutional Challenges

         A. 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 Crowell.

         B. Equal Protection

         ¶ 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.

         1. 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 scrutiny standard.

         ¶ 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 ...


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