85 Sanchez v. Industrial Claim Appeals Office , 411 P.3d 245 ( 2017 )

COLORADO COURT OF APPEALS 2017COA71
Court of Appeals No. 16CA1085
Industrial Claim Appeals Office of the State of Colorado
WC No. 4-978-703-01
Michael Sanchez,
Petitioner,
v.
Industrial Claim Appeals Office of the State of Colorado, Denver Water, and
Travelers Indemnity Company,
Respondents.
ORDER AFFIRMED
Division IV
Opinion by JUDGE ASHBY
Hawthorne and Nieto*, JJ., concur
Announced May 18, 2017
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
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2016.
¶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
1
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
2
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
3
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
4
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
5
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.
6
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
7
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 to us, that analyzes workers’
compensation hearings under a strict scrutiny standard.
¶ 17 Cases cited by claimant do not persuade us that strict
scrutiny must be applied here. At least two of the cases do not
address the fundamental right to a fair hearing and therefore are
inapposite. See M.L.B. v. S.L.J., 519 U.S. 102, 116 (1996) (state
could not terminate mother’s fundamental right to parent without a
hearing on grounds that mother could not afford court costs);
Evans, 882 P.2d at 1343-44 (Amendment 2 was too broad and “not
narrowly tailored” to constitutionally accomplish its stated goals of
protecting the rights to freely practice religion, “personal privacy,”
and “familial privacy”).
8
¶ 18 A third case expressly holds that a pre-termination evidentiary
hearing is not required — and thus no fundamental right to a
hearing is violated — by the government using administrative
procedures to determine continued social security benefits. See
Mathews v. Eldridge, 424 U.S. 319, 340-42 (1976) (a claimant
seeking continued social security disability benefits is not entitled
to a pre-termination evidentiary hearing because social security
disability benefits are “not based upon financial need” and “other
forms of government assistance will become available where the
termination of disability benefits places a worker or his family below
the subsistence level”).
¶ 19 Accepting claimant’s argument that strict scrutiny analysis
applies could also lead to the absurd result that the standard would
apply whenever a litigant is dealt an unfavorable decision and then
asserts the hearing was unfair because it was conducted by an
allegedly unqualified or inadequately vetted judge.
¶ 20 Colorado courts have repeatedly held that workers’
compensation claimants are not a suspect class and that workers’
compensation benefits are not a fundamental right. See Dillard v.
Indus. Claim Appeals Office, 134 P.3d 407, 413 (Colo. 2006);
9
Simpson v. Indus. Claim Appeals Office, 219 P.3d 354, 364 (Colo.
App. 2009), rev’d in part and vacated in part on other grounds sub
nom. Benchmark/Elite, Inc. v. Simpson, 232 P.3d 777, 778 (Colo.
2010); Kroupa v. Indus. Claim Appeals Office, 53 P.3d 1192, 1197
(Colo. App. 2002) (“[R]eceiving workers’ compensation benefits is
not a fundamental right.”). The rational basis test therefore applies
to equal protection challenges in the workers’ compensation
context, and claimant’s constitutional challenge should be assessed
under that standard. See Mathews, 424 U.S. at 349; Dillard, 134
P.3d at 413; Kroupa, 53 P.3d at 1197.
¶ 21 Under the rational basis test, “a statutory classification is
presumed constitutional and does not violate equal protection
unless it is proven beyond a reasonable doubt that the classification
does not bear a rational relationship to a legitimate legislative
purpose.” Pace Membership Warehouse v. Axelson, 938 P.2d 504,
506 (Colo. 1997). “[T]he burden is on claimant, as the challenging
party, to prove the statute is unconstitutional beyond a reasonable
doubt.” Pepper v. Indus. Claim Appeals Office, 131 P.3d 1137, 1139
(Colo. App. 2005), aff’d on other grounds sub nom. City of Florence v.
Pepper, 145 P.3d 654 (Colo. 2006).
10
¶ 22 In applying rational basis review, “we do not decide whether
the legislature has chosen the best route to accomplish its
objectives.” Dean v. People, 2016 CO 14, ¶ 13. Instead, “[o]ur
inquiry is limited to whether the scheme as constituted furthers a
legitimate state purpose in a rational manner.” Id.
2. Use of ALJs and Panel Members Who are Not Subject to
Selection by the Governor or Retention by the Voters Does Not
Violate Equal Protection
¶ 23 Claimant contends that the structure of the Division of
Workers’ Compensation — particularly its use of ALJs and the
Panel to resolve disputes — violates his and other workers’
compensation litigants’ rights to equal protection. Claimant
challenges the constitutionality of the selection process for Panel
members and the use of ALJs by asserting identical arguments.
Because these arguments overlap, we address them together.
¶ 24 Claimant contends that the state’s process for choosing and
retaining judicial officers is “carefully crafted to obtain fair and
impartial judges.” He suggests that he and other workers’
compensation litigants are forced to have their claims heard by a
potentially partial ALJ or tribunal, because ALJs and Panel
members are “appointed by the executive director of the department
11
of labor and employment[,] can serve forever,” and have not
undergone the careful vetting of judges appointed under article VI.1
This dichotomy between litigating civil suits and workers’
compensation claims, he argues, violates his and other workers’
compensation litigants’ right to equal protection. We disagree.
¶ 25 Claimant bears the burden of showing “that the classification
lacks a legitimate governmental purpose and, without a rational
basis, arbitrarily singles out a group of persons for disparate
treatment in comparison to other persons who are similarly
situated.” Dillard, 134 P.3d at 413. He identifies the class as all
civil litigants. But, as several divisions of this court have noted,
workers’ compensation litigants should not be lumped together with
civil litigants generally because
workers’ compensation cases are not ordinary
civil disputes between “private parties litigating
private rights” that must be resolved in the
courts. Rather, the parties in workers’
compensation proceedings have expressly
surrendered common law rights, remedies, and
proceedings in exchange for the benefits of the
Act — namely, compensation to the employee
for job-related injuries and immunity for the
employer from common law claims.
1 Judicial power in the State of Colorado is vested in the judicial
branch by article VI of the Colorado Constitution.
12
MGM Supply Co. v. Indus. Claim Appeals Office, 62 P.3d 1001, 1004
(Colo. App. 2002); see also Aviado v. Indus. Claim Appeals Office,
228 P.3d 177, 180-81 (Colo. App. 2009) (“[T]he General Assembly
essentially has determined that workers' compensation cases are
not civil cases that must be heard in a judicial court.”). We
therefore conclude that the class should be defined more narrowly
as comprising all workers’ compensation litigants, because parties
to workers’ compensation actions are subject to different rules and
a different statutory scheme than other litigants. See MGM Supply,
62 P.3d at 1004 (observing differences between litigants in
“ordinary civil disputes” and litigants in workers’ compensation
proceedings). Classified in this manner, it is clear that all workers’
compensation litigants, including claimant, are treated equally.
Also, using ALJs and the Panel — both of whom fall under
Colorado’s executive branch — to hear workers’ compensation
claims advances the Act’s goals of quickly and efficiently resolving
claims. § 8-40-102(1), C.R.S. 2016; see Simpson, 219 P.3d at 363;
MGM Supply, 62 P.3d at 1004. We conclude that advancing these
legitimate governmental goals is a sufficient rational basis for
13
employing executive branch ALJs and the Panel to decide workers’
compensation cases.
¶ 26 Claimant’s arguments here mirror those addressed and
rejected by other divisions of this court in two prior decisions: (1)
Youngs v. Industrial Claim Appeals Office, (Colo. App. No.
08CA2209, Nov. 19, 2009) (not published pursuant to C.A.R. 35(f))
(Youngs I);2 and (2) Youngs v. Industrial Claim Appeals Office, 2012
COA 85M (Colo. App. 2012) (Youngs II). In Youngs I, a claimant
argued that his fundamental right to a fair hearing was jeopardized
by the Division of Workers’ Compensation’s use of executive-
appointed ALJs rather than judicial branch officers. In Youngs II,
the same claimant argued that his rights to equal protection were
violated because ALJs and Panel members were “not appointed by
the Governor of Colorado for a term of years . . . and . . . not subject
to impeachment.” Youngs II, ¶ 48. The division in Youngs II relied
on the prior division’s decision as to the equal protection challenge
on the basis of the doctrines of law of the case and issue preclusion.
Further, relying on prior decisions of this court, Youngs I and II held
2 Although the policy of this court forbids citation by parties to
unpublished opinions, we cite to Youngs I to explain the procedural
history and to place the decision in Youngs II in context.
14
that the claimant’s constitutional rights were not violated. Youngs
II, ¶ 61. Youngs I and II show that, contrary to claimant’s
conclusory assertion, the arguments he raises here are not
“separate and distinct from arguments raised in prior cases.”
¶ 27 The prior decisions on which Youngs I and II relied apply
equally here. And, they provide precedential grounds for rejecting
the argument claimant now makes. See Aviado, 228 P.3d at 180-81(because there is no fundamental right to recover damages in
district court, workers’ compensation claimants are not deprived of
a “fundamental constitutional right to a hearing in district court”);
Dee Enters., 89 P.3d at 434 (use of executive branch ALJs and the
Panel does not prevent “the judicial branch of government from
exercising power that is essential to its proper functioning”); MGM
Supply, 62 P.3d at 1004.
¶ 28 Claimant denounces these prior opinions as “wrongly decided”
and demands that they “be overturned.” Yet, he fails to articulate
any sound legal bases for doing so. We conclude that Aviado, Dee
Enterprises, and MGM Supply are well reasoned, and we find no
basis to disagree with their holdings. The same basic complaint
asserted in those three cases is argued here — that depriving
15
workers’ compensation claimants and respondents of access to
judicial branch hearings violates their constitutional rights. No
case cited by claimant, or any we have found, has held that
administrative hearings deprive workers’ compensation litigants of a
right to a fair hearing. To the contrary, the workers’ compensation
scheme of dispute resolution has been universally upheld.
¶ 29 Moreover, workers’ compensation litigants have access to
judicial review. Like the appellants in Aviado, Dee Enterprises,
MGM Supply, and Youngs I and II, claimant had a right — which he
exercised — to have his claim heard by a judicial branch appellate
court. “The General Assembly has explicitly made the exercise of
the powers conferred upon ALJs and the Panel subordinate to the
judiciary by providing for a review as of right by this court for errors
of law and findings of fact that are unsupported by the evidence.”
Dee Enters., 89 P.3d at 434. Thus, “[a]ny right [claimant] may have
to have [his] disputes considered by judges subject to popular vote
is protected by the provisions of the Act authorizing judicial review
by direct appeal to this court.” MGM Supply, 62 P.3d at 1004.
16
¶ 30 Accordingly, we reject claimant’s contention that his right to
equal protection was violated because his claim was heard by an
executive branch ALJ and the Panel.
3. The Industrial Claim Appeals Office’s Presence as a Party and
Representation by the Attorney General’s Office Do Not Violate
Equal Protection
¶ 31 Claimant next challenges the Panel’s dual roles as a decision-
maker and as a named litigant if a case is subsequently appealed to
this court. He contends that the Panel’s fluid roles can improperly
lead it to “magically transform back into an appellate tribunal,” a
“scenario [that] reeks of impropriety.” He claims further that
workers’ compensation claimants are the only litigants subjected to
this dichotomy, which wrongfully deprives him and other workers’
compensation litigants of equal protection. Again, we are not
persuaded.
¶ 32 The Act permits “[a]ny person in interest, including Pinnacol
Assurance, being dissatisfied with any final order of the division,
[to] commence an action in the court of appeals against the
industrial claim appeals office as defendant to modify or vacate any
such order on the grounds set forth in section 8-43-308.”
§ 8-43-307(1), C.R.S. 2016 (emphasis added). Thus, claimant was
17
following the legislature’s mandate to name the Panel as a
defendant when he appealed to this court.
¶ 33 First, workers’ compensation claimants are not the only
litigants who encounter the Panel as both decision-maker and
defendant. The Panel also appears as a defendant in
unemployment cases brought before this court. See § 8-74-107,
C.R.S. 2016.
The threshold question in an equal protection
challenge is whether the legislation results in
dissimilar treatment of similarly situated
individuals. To violate equal protection
provisions, the classification must arbitrarily
single out a group of persons for disparate
treatment from that of other persons who are
similarly situated.
Pepper, 131 P.3d at 1140.
¶ 34 Claimant asserts that workers’ compensation litigants are
treated unlike any other litigant and attempts to distinguish
workers’ compensation litigants from unemployment litigants. But
we perceive no fundamental distinction between these groups for
equal protection purposes.
¶ 35 And, contrary to claimant’s underlying assumption, this exact
dichotomy exists in the judicial branch, as well. Parties appearing
18
before article VI courts who are dissatisfied with an order may seek
immediate relief from the order in the supreme court under C.A.R.
21, and may name the lower court or judge as a party. See Colo.
State Bd. of Med. Exam’rs v. Colo. Court of Appeals, 920 P.2d 807,
814 (Colo. 1996) (holding under C.A.R. 21 that the court of appeals
exceeded its jurisdiction in issuing stay). In such actions, the
district court is generally represented by the Attorney General’s
Office. See, e.g., Pearson v. Dist. Court, 924 P.2d 512, 517 (Colo.
1996) (ordering trial court to vacate its orders for mediation); People
v. Dist. Court, 894 P.2d 739, 746 (Colo. 1995) (finding respondent
court erred by suppressing evidence obtained through discovery in
the prior civil proceeding). In fact, if a court or judge is named in a
C.A.R. 21 petition, the implication for conflicts could be more
serious than the types of conflicts claimant fears; unlike workers’
compensation or unemployment cases that name the Panel
generally, a C.A.R. 21 petition that names an individual judge is
likely to be returned to that same judge to preside over subsequent
proceedings. See Halaby, McCrea & Cross v. Hoffman, 831 P.2d
902, 908 (Colo. 1992) (holding that judge exceeded his jurisdiction
19
when he imposed sanctions against party and prohibited
enforcement of the sanction).
¶ 36 Still, even assuming there is disparate treatment of workers’
compensation litigants in requiring them to name the Panel as a
defendant in an appeal, we conclude such a requirement does not
violate equal protection. Requiring the Panel to be added as a
party, and permitting the Attorney General’s Office to represent the
Panel on appeal, is not arbitrary. The entire Act is designed to
“provide for the quick and efficient delivery of benefits to injured
claimants at a reasonable cost to employers.” Dworkin, Chambers
& Williams, P.C. v. Provo, 81 P.3d 1053, 1057 (Colo. 2003). The
requirement that the Panel be named as a party to any appeal
serves the Act’s legitimate and stated purpose of ensuring the
thorough and expeditious review and, as necessary, enforcement of
ALJ and Panel orders under the Act. Nevertheless, claimant insists
that workers’ compensation litigants are denied their right to a fair
hearing because they must appear before Panel members who are
biased because of their dual status as arbiters of claims and also as
parties in any appeal of those claims. He correctly asserts that the
Code of Judicial Conduct requires a judge to disqualify himself or
20
herself if he or she becomes a party to the proceeding, and that
another division of this court has held that the Code applies to ALJs
and Panel members. See C.J.C. 2.11; Kilpatrick v. Indus. Claim
Appeals Office, 2015 COA 30, ¶ 29 (“The C.J.C. thus
unambiguously and expressly applies to PALJs, ALJs, and Panel
members, contrary to claimant’s assertion.”). The Panel, however,
is not in the same position as those individual judges in the cases
on which claimant relies. The Panel is named as a collective body
and its members never appear in an individual capacity. We detect
neither actual partiality nor the appearance of partiality in this
arrangement.
¶ 37 A review of the cases cited by claimant illustrates this
distinction. Claimant cites to Venard v. Department of Corrections,
72 P.3d 446 (Colo. App. 2003), for the proposition that judges may
not become “advocates in a matter where they serve as judges.” In
Venard, however, unlike this case, the same individual served on a
decision-making board hearing a case brought by a plaintiff’s
counsel and then also represented the state against the same
plaintiff’s counsel in an unrelated matter. A division of this court
disqualified the board member from deciding cases involving the
21
plaintiff’s attorney because of the undeniable appearance of
impropriety. Id. at 450.
¶ 38 In contrast, Panel members who ruled on claimant’s case do
not appear as individual defendants and the Panel is represented on
appeal by counsel from the Attorney General’s Office. So, individual
Panel members are not in the same adversarial posture as the
board member described in Venard.
¶ 39 Claimant also relies on People v. Martinez, 185 Colo. 187, 523
P.2d 120 (1974). In that case the court found that, after the
prosecutor failed to appear for a hearing, the trial judge
assumed the role of the district attorney. The
court not only moved sua sponte for the
admission of the transcript of the preliminary
hearing into evidence, but called witnesses for
the People, examined them and cross-
examined defense witnesses. He made sua
sponte objections to defense counsel’s
questions and ruled on objections made to his
own questions — many leading ones.
Id. at 188-89, 523 P.2d at 120-21. These actions, the supreme
court determined, demonstrated that the trial judge was not
impartial but instead acted as “an advocate and not a judge.” Id. at
189, 523 P.2d at 121. The Panel in this case did not take any
similar actions; claimant named the Panel as a defendant as
22
required by section 8-43-307, and the Attorney General’s Office filed
a brief on the Panel’s behalf as anticipated by that statute.
Claimant cannot establish that the individual Panel members have
provided evidence or testimony in his case, or have personally
advocated the Panel’s position against his interests. The only
individuals who have presented the Panel’s position are members of
the Attorney General’s Office who have no role whatsoever in the
Panel’s decision-making functions.
¶ 40 There simply has not been a showing, as there was in Martinez
and Venard, that an individual Panel member has acted with any
partiality or appearance of impropriety. For these reasons, we
conclude that claimant has not established an equal protection
violation due to the Act’s requirement that the Panel be named as a
party. Pepper, 131 P.3d at 1140.
¶ 41 To the extent claimant asserts any impropriety or equal
protection violation from the Attorney General’s Office representing
the Panel, the argument is undeveloped. We therefore decline to
address it. See Meza v. Indus. Claim Appeals Office, 2013 COA 71,
¶ 38; Antolovich v. Brown Grp. Retail, Inc., 183 P.3d 582, 604 (Colo.
App. 2007) (declining to address “underdeveloped arguments”).
23
4. Section 8-43-404(5)(a)(II)(A) Does Not Improperly Single Out
Governmental Workers and Therefore Does Not Violate Equal
Protection
¶ 42 Claimant next challenges on equal protection grounds the
statute that obligates an employer to furnish an injured worker with
options for medical care. Section 8-43-404(5)(a)(I)(A) requires an
employer to “provide a list of at least four physicians or four
corporate medical providers or at least two physicians and two
corporate medical providers or a combination thereof where
available, in the first instance, from which list an injured employee
may select the physician who attends the injured employee.” A
later subsection of the statute carves out an exception for
governmental entities and health care providers. It provides as
follows:
If the employer is a health care provider or a
governmental entity that currently has its own
occupational health care provider system, the
employer may designate health care providers
from within its own system and is not required
to provide an alternative physician or
corporate medical provider from outside its
own system.
24
§ 8-43-404(5)(a)(II)(A). Claimant asserts that this exemption
deprives governmental workers of the right to select a physician in
violation of equal protection. We disagree.
¶ 43 “To successfully challenge a statute on equal protection
grounds, ‘the party asserting the statute’s unconstitutionality must
show that the classification lacks a legitimate governmental
purpose and, without a rational basis, arbitrarily singles out a group
of persons for disparate treatment in comparison to other persons
who are similarly situated.’” Zerba v. Dillon Cos., 2012 COA 78,
¶ 11 (emphasis added) (quoting Dillard, 134 P.3d at 413). By the
plain terms of the statute, governmental workers are not the only
group denied a list of four physicians. And if we determine that a
rational basis exists for excluding employees of governmental
entities and health care providers that have their own occupational
health care provider system from the four-physician requirement,
these groups are necessarily not “arbitrarily single[d] out . . . for
disparate treatment” from other injured workers. Zerba, ¶ 11
(emphasis added) (quoting Dillard, 134 P.3d at 413).
¶ 44 We conclude that a rational basis does exist for excluding
employees of governmental entities and health care providers from
25
the four-physician referral requirement. Both health care providers
and governmental entities are more likely to have the expertise and
means to establish their own provider systems than other
employers. The legislature having determined that only these two
types of entities qualify for the exclusion is therefore not arbitrary
or irrational. And requiring employees of these entities to use
providers within those systems is consistent with the Act’s goals to
minimize costs while efficiently providing care and compensation to
injured workers. The fact that the statutory classification may
impact only employees of these two types of entities does not render
the classification unconstitutional. See Dillard, 134 P.3d at 414.
Claimant therefore cannot establish an equal protection violation
due to the physician referral exclusion.
IV. Non-Constitutional Challenges to Panel’s Order
¶ 45 Claimant asserts three non-constitutional arguments: (1) the
exemption from providing a list of four possible physicians did not
apply because Denver Water did not meet the requirements of
section 8-43-404(5)(a)(II)(A); (2) substantial evidence does not
support the ALJ’s factual findings; and (3) the ALJ made numerous
26
evidentiary errors. We are not persuaded to set aside the Panel’s
order by any of these arguments.
A. Denver Water Complies with Statutory and Regulatory
Requirements for Having Its Own Occupational
Health Care Provider
¶ 46 Claimant argues that Denver Water’s clinic does not meet
section 8-43-404(5)(a)(II)(A)’s criteria for an “occupational health
care provider system” because it does not have a full-time physician
at the clinic. Specifically, claimant contends that because Dr.
Macaulay is only present at the clinic two days per week and does
not supervise the clinic’s operations, Denver Water’s clinic does not
comply with the statutory and regulatory requirements for an on-
site health care facility. So, he maintains, Denver Water was not
statutorily exempt; should have provided him with a list of four
potential physicians; and, when it failed to do so, violated section
8-43-404(5)(a)(I)(A). We are not persuaded.
¶ 47 Section 8-43-404(5)(a)(II)(B) specifically states that in order for
a governmental entity or health care provider to be exempt under
the Act from listing four physicians, the on-site health care facility
must meet “all applicable state requirements to provide health care
services on the employer’s premises.” Id. The regulation governing
27
this provision requires “the on-site facility [to] be under the
supervision and control of a physician, and a physician must be on
the premises or reasonably available.” Dep’t of Labor & Emp’t Rule
8-1(C)(1), 7 Code Colo. Regs. 1101-3 (emphasis added). We
conclude that Denver Water’s clinic adequately complies with these
requirements.
¶ 48 The regulation does not require that a physician be on the
premises at all times. Rather, so long as a physician is “reasonably
available” the statutory mandate is met. Dr. Macaulay works at the
clinic twice per week and can be reached at other times, as needed.
This meets the statutory requirements.
¶ 49 Dr. Macaulay does not have administrative authority over the
clinic’s nursing staff or other personnel. But, Dr. Macaulay
emphasized that he demands medical independence and is
available to the clinic nurses to answer their medical questions. In
other words, Dr. Macaulay exercises independent medical judgment
and provides medical supervision at the clinic even though he does
not provide any administrative supervision over the nursing staff
such as approving vacation time, hiring staff, or making other
personnel decisions.
28
¶ 50 Claimant asserts that this is fatal to Denver Water’s clinic
qualifying as an on-site health care facility. But the Panel
interpreted Rule 8-1 as mandating that a physician be “responsible
for making the necessary medical determinations and does not refer
to the administrative supervision of employees such as scheduling
time off and personnel matters.” While we are not bound by the
Panel’s interpretation of the statute, and our review is de novo, we
give “considerable weight” to the Panel’s interpretation, Zerba, ¶ 35,
and do not set it aside “unless plainly erroneous or inconsistent
with such regulations.” Id. at ¶ 37 (quoting Jiminez v. Indus. Claim
Appeals Office, 51 P.3d 1090, 1093 (Colo. App. 2002)); see also
Anderson v. Longmont Toyota, Inc., 102 P.3d 323, 326 (Colo. 2004).
The Panel’s interpretation will therefore be set aside only “if it is
inconsistent with the clear language of the statute or with the
legislative intent.” Support, Inc. v. Indus. Claim Appeals Office, 968
P.2d 174, 175 (Colo. App. 1998). We conclude that the Panel’s
interpretation is reasonable and consistent with the legislative
intent. We therefore adopt it and apply it.
¶ 51 Nor are we persuaded by claimant’s argument that the clinic
does not comply with the statute because only one physician at a
29
time is staffing it. Focusing on the statute’s use of the plural —
“the employer may designate health care providers” — claimant
reasons that section 8-43-404(5)(a)(II)(A) requires every clinic to
have more than one physician on-hand and available at any given
time. (Emphasis added.) We disagree.
¶ 52 Nothing in the statute suggests that multiple physicians must
be present at a clinic. Claimant cites to no authority for his
proposed interpretation and we have found none. The statute’s
plain language addresses an employer that “has its own
occupational health care provider system” — singular — and the
reference to designating “health care providers” within its own
system simply allows an exempted employer the flexibility to employ
or contract with one or more physicians. See § 8-43-404(5)(a)(II)(A).
¶ 53 Last, claimant argues that Denver Water effectively conceded
that Dr. Macaulay is not part of its occupational health care
provider system and waived its right to argue it had its own
occupation health care provider system. He claims this is so
because Denver Water objected when claimant’s counsel questioned
claimant about his conversations with Dr. Macaulay concerning
claimant’s impairment rating. As we understand claimant’s
30
reasoning, he contends that if Denver Water considered Dr.
Macaulay an employee, it could not object to his statements on
hearsay grounds because the testimony would be an admission by
a party opponent and therefore fall within an exception to the
hearsay rule. But Denver Water’s counsel objected to the questions
about claimant’s conversation with Dr. Macaulay because the
statements were not made for purposes of a medical diagnosis.
And, claimant’s counsel argued only that the doctor’s statements
were admissible as prior inconsistent statements. Neither party
laid the foundation for or characterized the statements as an
admission nor argued that the court should admit them as such.
So we find no basis to conclude that Denver Water made any
concession or waived its right to argue that its clinic qualified as an
on-site health care facility. For these reasons, we conclude that
Denver Water’s clinic complied with the requirements of section
8-43-404(5)(a)(II)(B) and Rule 8-1(C)(1).
31
B. Substantial Evidence Supports the ALJ’s Conclusion that
Claimant’s Low Back Injury was Not Work-Related
¶ 54 Claimant next contends that the ALJ disregarded critical
evidence when he determined that claimant’s low back pain was
unrelated to his work injury. We disagree.
1. Governing Law and Standard of Review
¶ 55 “Proof of causation is a threshold requirement which an
injured employee must establish by a preponderance of the
evidence before any compensation is awarded.” Faulkner v. Indus.
Claim Appeals Office, 12 P.3d 844, 846 (Colo. App. 2000). The
issue of causation “is generally one of fact for determination by the
ALJ.” Id.; see also H&H Warehouse v. Vicory, 805 P.2d 1167, 1170
(Colo. App. 1990) (“The ALJ has great discretion in determining the
facts and deciding ultimate medical issues.”).
¶ 56 We must uphold the ALJ’s factual determinations if the
decision is supported by substantial evidence in the record. See
§ 8-43-308, C.R.S. 2016; Leewaye v. Indus. Claim Appeals Office,
178 P.3d 1254, 1256 (Colo. App. 2007) (“We are bound by the
factual determinations of the ALJ, if they are supported by
substantial evidence in the record.”); Wal-Mart Stores, Inc. v. Indus.
32
Claims Office, 989 P.2d 251, 252 (Colo. App. 1999) (“If substantial
evidence supports the ALJ’s conclusion that a claimant’s condition
is work-related, that determination may not be disturbed on
review.”). The reviewing court is bound by the ALJ’s factual
determinations even if the evidence was conflicting and could have
supported a contrary result. It is the fact finder’s sole province to
weigh the evidence and resolve any contradictions. Pacesetter Corp.
v. Collett, 33 P.3d 1230, 1234 (Colo. App. 2001); Metro Moving &
Storage Co. v. Gussert, 914 P.2d 411, 415 (Colo. App. 1995)
(reviewing court must defer to the ALJ’s credibility determinations
and resolution of conflicts in the evidence and may not substitute
its judgment for that of the ALJ).
2. Substantial Evidence Supports the ALJ’s Decision
¶ 57 Dr. Macaulay repeatedly testified that, in his opinion,
claimant’s low back pain was not related to his work injury. Even
though he acknowledged that other doctors had differing opinions,
Dr. Macaulay also expressed this opinion in a written report and
when questioned by Denver Water’s counsel. The ALJ could have
reached a different conclusion based on other available evidence.
But the mere fact that contrary evidence exists that could support
33
the opposite result is insufficient to justify setting aside an ALJ’s
order or the Panel’s decision affirming it. And, we may not reweigh
the evidence to reach a result contrary to the ALJ’s factual findings
if those findings are supported by evidence in the record. See
Pacesetter Corp., 33 P.3d at 1234; Metro Moving & Storage Co., 914
P.2d at 415.
¶ 58 The ALJ credited Dr. Macaulay’s testimony over other
witnesses’ testimony. And because Dr. Macaulay’s opinions
substantially support the ALJ’s factual finding that claimant’s low
back pain is not related to his work injury, we must uphold this
finding. See § 8-43-308; Leewaye, 178 P.3d at 1256; Wal-Mart
Stores, Inc., 989 P.2d at 252.
C. Other Alleged Evidentiary Errors Provide No Basis for Setting
Aside the Panel’s Decision
¶ 59 Last, claimant lumps together a number of “other issues,”
including “multiple evidentiary issues,” that he asserts “constitute
reversible error.” He implies that the Panel wrongly relied on
mootness to dispose of issues; argues that the “case should be
remanded for a determination regarding waiver”; asserts that the
final admission should be stricken because it “does not have an
34
impairment rating attached”; and claims that “multiple evidentiary
issues were raised.” None of these contentions provide a basis for
setting aside the Panel’s order.
¶ 60 Claimant suggests the ALJ committed an evidentiary error
that prevented him from impeaching Dr. Macaulay. As we
understand his argument, claimant sought to discredit Dr.
Macaulay with a contract purporting to show that Denver Water
only renewed Dr. Macaulay’s contract because he had reduced its
workers’ compensation costs. He contends that the ALJ “refused to
consider such evidence and ruled the information was irrelevant.”
¶ 61 The record reveals, however, that the contract in question was
admitted into evidence in its entirety. The ALJ was not required to
explicitly reference this contract to demonstrate that he had
considered it. An “ALJ operates under no obligation to address
either every issue raised or evidence which he or she considers to
be unpersuasive.” Magnetic Eng’g, Inc. v. Indus. Claim Appeals
Office, 5 P.3d 385, 389 (Colo. App. 2000). Moreover, an ALJ “is not
held to a crystalline standard in articulating his findings of fact”;
findings are sufficient if “we are able to discern from the order the
reasoning which underlies” it. Id. at 388.
35
¶ 62 Claimant offers nothing more than one or two conclusory
sentences, with no citations to legal authority, addressing his
remaining allegations of waiver, striking the final admission, and
“multiple” other evidentiary issues.
Our Court will not search through briefs to
discover what errors are relied on, and then
search through the record for supporting
evidence. It is the task of counsel to inform
us, as required by our rules, both as to the
specific errors relied on and the grounds and
supporting facts and authorities therefor.
Mauldin v. Lowery, 127 Colo. 234, 236, 255 P.2d 976, 977 (1953).
“Given the dearth of legal grounds offered,” we decline to address
claimant’s remaining arguments. Meza, ¶ 38; see also Antolovich,
183 P.3d at 604; Castillo v. Koppes-Conway, 148 P.3d 289, 291
(Colo. App. 2006) (a party who does not refer to evidence or
authority in support of an argument does not present a cogent
argument for review).
V. Conclusion
¶ 63 The Panel’s order is affirmed.
JUDGE HAWTHORNE and JUDGE NIETO concur.
36