Pace Membership Warehouse v. Axelson

Chief Justice VOLLACK,

delivered the Opinion of the Court.

We granted certiorari to review the court of appeals decision in Axelson v. Pace Membership Warehouse, 923 P.2d 322 (Colo.App.1996), in which the court of appeals deter mined that section 8-42-103(1)(f), 3B C.R.S. (1995 Supp.), violates the equal protection requirements of the United States and Colorado Constitutions. Because we hold that section 8-42-103(l)(f) is rationally related to a legitimate state interest, we conclude that this statutory provision does not violate the constitutional requirements of equal protection. We therefore reverse the court of appeals and remand to reinstate the final order of the Industrial Claim Appeals Office (ICAO).

I.

The parties have stipulated to the facts in this case. On June 26, 1990, Barbara Axel-son (Axelson) sustained an industrial injury while working for Pace Membership Warehouse (Pace). Axelson continued to work for Pace through July 12, 1990, at which time she was separated from her employment. Axelson contended that she was separated from her employment because Pace did not offer her re-employment within her work restrictions, while Pace argued that Axelson voluntarily left her employment. Pace thus refused to pay Axelson’s claim for temporary total disability (TTD) benefits.

. Axelson filed an administrative appeal, and •on March 24, 1992, the administrative law judge (ALJ) ordered Pace to pay Axelson TTD benefits backdated from July 13, 1990. However, during the period in which Axel-son’s eligibility for TTD benefits was litigated, she applied for and received unemployment insurance (UI) benefits for forty weeks in the total amount of $8,109.71. Therefore, pursuant to section 8-42-103(l)(f), the ALJ ordered that Axelson’s TTD benefits be offset by the amount of UI benefits she had received. Pace complied with the ALJ’s order, reducing the TTD benefits it paid to Axelson by the amount of her UI benefits.

On February 22, 1994, the ALJ determined that Axelson had reached maximum medical improvement (MMI) on December 15, 1992 and that she was no longer entitled to TTD benefits after the MMI date. Axel-son subsequently applied for additional UI benefits, but was awarded only twelve weeks of benefits because she had previously exhausted forty weeks of UI benefits. Axelson then requested an administrative hearing, asserting that Pace inappropriately reduced her TTD benefits by the amount of UI benefits she had received. On June 29, 1994, the ALJ determined that Axelson was not entitled to restoration of the amount Pace had claimed as an offset. On March 17,1995, the ICAO affirmed, concluding that, pursuant to section 8-42-103(1)(f), TTD benefits must be offset by UI benefits.

The court of appeals set aside the ICAO’s ' order, holding that as applied, section 8-42-103(1)(f) violates the equal protection requirements of the United States and Colorado Constitutions. We granted certiorari to review the court of appeals decision and now reverse.

II.

A.

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.” The right to equal protection also finds support in the Due Process Clause of the Colorado Constitution. Colo. Const, art. II, § 25. When a statute is subject to an equal protection challenge, the level of judicial scrutiny varies with the type of classification utilized and the nature of the right affected. See Industrial Claim Appeals Office v. Romero, 912 P.2d 62, 66 (Colo.1996). Where a legislative classification does not involve a suspect class or an abridgement of a fundamental right triggering strict scrutiny, or where the classification is not a special one triggering an intermediate standard of review, an equal protection challenge must be analyzed under the rational basis standard of review. See id. In the current case, section 8-42-103(l)(f) does not affect a suspect or a special class, and the receipt of workers’ compensation benefits is not a fundamental right. See Romero, 912 P.2d at 66. We therefore review this statutory provision under the rational basis standard.¹

Under the rational basis standard of review, 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. See Duran v. Industrial Claim Appeals Office, 883 P.2d 477, 482 (Colo.1994). In order to establish that a classification violates the equal protection provisions of the federal and state constitutions, the classification must arbitrarily single out a group of persons for disparate treatment and not single out for such treatment other persons who are similarly situated. See Romero, 912 P.2d at 66.

Moreover, pursuant to the rational basis standard, a statute creating a classification is not deemed unconstitutional simply because distinctions created by the statute are not made with mathematical nicety. See Dawson ex rel. McKelvey v. Public Employees’ Retirement Ass’n, 664 P.2d 702, 708 (Colo.1983). Rather, the problems of government being practical ones, equal protection will tolerate “a rough accommodation of variant interests.” Id. A statute can only be stricken under the rational basis standard if there exists no reasonably conceivable set of facts to establish a rational relationship between the statute and a legitimate governmental purpose. See Colorado Soc’y of Community and Institutional Psychologists, Inc. v. Lamm, 741 P.2d 707, 711 (Colo.1987). Simply because a statutory classification creates a harsh result in one instance does not mean that the statute fails to meet constitutionality requirements under the rational basis standard. See Movitz v. Division of Employment and Training, 820 P.2d 1153, 1155 (Colo.App.1991).

In Bellendir v. Kezer, 648 P.2d 645 (Colo.1982), the claimant argued that the failure of the Workers’ Compensation Act to provide for increases in past compensation awards to keep pace with inflation violated equal protection. In rejecting this argument, we stated:

Obviously, the statutory formula is arbitrary in the sense that the General Assembly might have chosen some other method of computing disability benefits. Our inquiry is limited, however, to whether the scheme as presently constituted furthers a legitimate state purpose in a rational manner.

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... [W]e do not mean to indicate that the present statute necessarily best fulfills the social and economic objectives it was designed to achieve or that a more just system could not be formulated.... However, it is not the function of this Court to rewrite legislation; the power to change the present scheme rests with the General Assembly.

Id. at 647; see also Boehm v. Industrial Comm’n, 738 P.2d 804, 806 (Colo.App.1987) (stating that “[i]f the distinction between the two classifications has some rational basis, the statute is not rendered invalid merely because it may, in practice, result in some inequality”).²

B.

Section 8-42-103(1)(f), 3B C.R.S. (1995 Supp.) (“the offset provision”), provides for the offset of TTD benefits as follows:

In eases where it is determined that unemployment insurance benefits are payable to an employee, compensation for temporary disability shall be reduced, but not below zero, by the amount of unemployment insurance benefits received, unless the unemployment insurance amount has already been reduced by the temporary disability benefit amount and except that temporary total disability shall not be reduced by unemployment insurance benefits received pursuant to section 8-73-112.

(Emphasis added.) The offset provision requires TTD benefits to be offset, or reduced, by the amount of UI benefits a claimant receives when the two benefits are awarded for the same period of time. The offset provision expressly prohibits offset in cases where UI benefits are paid pursuant to section 8-73-112, 3B C.R.S. (1995 Supp.).

Section 8-73-112 provides for the receipt of UI benefits after the receipt of TTD benefits as follows:

[A] person who is separated from employment due to an accident or injury resulting in a temporary total disability for which he has been compensated under section 8-42-105, if otherwise eligible, shall be entitled to receive, after the termination of the continuous period of disability, benefits under this article which were available and in effect at the time of separation from employment.

(Emphasis added.) Section 8-73-112 provides that a claimant may be entitled to UI benefits pursuant to its provisions only after the claimant’s TTD benefits have terminated. This is an exception to the general rule that UI benefits must be paid within one year after separation from employment. See § 8-70-111, 3B C.R.S. (1995 Supp.).

In analyzing the offset provision and its reference to section 8-73-112, it is helpful to review the statutory provisions for TTD benefits as they relate to the provisions for UI benefits. TTD benefits are designed to compensate the injured employee for wage loss while the employee is recovering from a work-related injury. See Eastman Kodak Co. v. Industrial Comm’n, 725 P.2d 107, 111 (Colo.App.1986), overruled on other grounds in Allee v. Contractors, Inc., 783 P.2d 273 (Colo.1989). By statutory operation, TTD benefits terminate when the injured worker: (1) reaches MMI; (2) returns to regular or modified employment; (3) is provided a written release from an attending physician to return to regular employment; or (4) is provided a written release from an attending physician to return to modified employment and fails to begin such employment after receiving a modified employment offer. See § 8-42-105(3)(a)-(d), 3B C.R.S. (1995 Supp.).

Unlike TTD benefits which compensate for wage loss due to an injury and originate under the Workers’ Compensation Act, UI benefits are designed to compensate for wage loss after an employee has become unemployed through no fault of his or her own and originate under the Employment Security Act, §§ 8-70-101 to 8-82-105, 3B C.R.S. (1986 & 1995 Supp.). See Harding v. Industrial Comm’n, 183 Colo. 52, 60, 515 P.2d 95, 99 (1973). Here, the parties agree that Axel-son was entitled to a total of fifty-two weeks of UI benefits for her separation from employment with Pace.

C.

As a preliminary matter, we find that the persons affected by the offset provision’s classifications are similarly situated. The offset provision creates two classes of persons: those whose TTD benefits are subject to offset by UI benefits because their TTD and UI benefits are awarded for the same period of time, and those whose TTD benefits are not subject to offset because their UI benefits are awarded after termination of their TTD benefits. These two classes of persons are similarly situated because they each are eligible to receive both TTD benefits and UI benefits for the same separation from employment, but they are treated differently because the former is subject to offset of TTD benefits by UI benefits while the latter is not subject to such offset.

Having determined that the classifications created by the offset statute affect persons who are similarly situated, we now turn to the question of whether the classifications are based on a legitimate state interest. The parties before us do not dispute that the purpose of the offset requirement is to prevent double recovery of wage loss benefits. For purposes of equal protection challenges, we have recognized that the prevention of double recovery is a legitimate governmental interest. As we stated in L.E.L. Construction v. Goode, 867 P.2d 875 (Colo.1994) “ ‘[o]nee it is recognized that workers’] compensation is one unit in an overall system of wage-loss protection, ... the conclusion follows that duplication of benefits from different parts of the system should not ordinarily be allowed.’” L.E.L. Constr., 867 P.2d at 879 (quoting 4 Arthur Larson, The Law of Workmen’s Compensation § 97.00 to 97.10 (1993)); see also Rains v. Kolberg Mfg. Corp., 897 P.2d 845, 847 (Colo.App.1994); Sampson v. Weld County Sch. Dist., 786 P.2d 488, 490 (Colo.App.1989).³ Because the purpose of the offset provision is to prevent double recovery, the classifications created by the provision are based on a legitimate state interest.

Because the classifications are based on a legitimate governmental interest, we must now determine whether the classifications are rationally related to that interest. Pursuant to the general requirements of the offset provision, TTD benefits are offset by UI benefits if an injured worker receives UI benefits during the same time period for which TTD benefits are later awarded; However, pursuant to the offset provision’s exception for workers who receive UI benefits under section 8-73-112, TTD benefits are not offset by UI benefits if the injured worker receives UI benefits after the termination of TTD benefits. This scheme is rationally related to the legitimate government interest in preventing double recovery because the offset requirement only applies to persons who receive both TTD and UI benefits for the same period of time.⁴

In the current case, Axelson received UI benefits during the same period of time for which she was later awarded TTD benefits. Axelson thus received overlapping benefits and, in order to prevent double recovery, was subject to the offset requirement. Although the legislature could have chosen another method to prevent the payment of duplicative benefits,⁵ it was not required to choose a method which resulted in mathematical nicety so long as it chose a method rationally related to a legitimate governmental interest. To the extent that the present claim involves some inequities, such inequities do not lead to an invalidation of the offset provision under the rational basis standard because there exists a reasonably conceivable set of facts to establish a rational relationship between the statute and a legitimate governmental purpose.⁶

III.

For the foregoing reasons, we hold that section 8-42-103(1)(f) is rationally related to the legitimate state interest of preventing double recovery and therefore does not violate the equal protection guarantees of the United States and Colorado Constitutions. We reverse the court of appeals and remand to reinstate the final order of the ICAO.

HOBBS, J., concurs in part and dissents, in part, and SCOTT and KOURLIS, JJ., join in the concurrence and dissent.

1 . Although Axelson contends that the strict scrutiny standard of review should be applied in this case, this contention is not supported by any authority. We therefore reject this argument without discussion.

2 . In the present case, the court of appeals held that section 8-42-103(1)©, “as applied, violates the equal protection requirements” of the federal and state constitutions. Axelson, 923 P.2d at 323. However, the term “as applied” is misused in this case because Axelson's challenge to section 8-42-103(1)© is based on the contention that the statute is unconstitutional “on its face." A statute is unconstitutional "on its face” if by its own terms it classifies persons for different treatment. In contrast, a statute is unconstitutional "as applied” if the governmental officials who administer the law are applying it with different degrees of severity to different groups of persons who are described by some suspect trait. See Western Metal Lath v. Acoustical and Constr. Supply, Inc., 851 P.2d 875, 880 n. 7 (Colo.1993). In the present case, Axelson has never contended that the officials administering ITD and UI benefits are applying section 8-42-103(1)© with different degrees of severity to different groups of persons. It is therefore inappropriate to analyze the constitutionality of section 8-42-103(1)© using an "as applied” approach.

3 . The court of appeals in the present case stated that “no double recovery occurs when the offset provision is applied to injured workers like [Axel-son] who must rely on unemployment insurance benefits while TTD benefits are being litigated.” However, this statement is incorrect because if Axelson is allowed both the UI benefits paid during the time of disability and the full TTD award, the result is a double recovery of benefits for the same time period.

4 . TTD benefits and UI benefits serve the same purpose: to compensate workers for wage loss due to circumstances beyond their control. Thus, the current case is distinguishable from Romero, 912 P.2d 62, in which we held that "[i]f prevention of duplicate benefits is the governmental purpose for the classification ... then the statute is not rationally related to its purpose because social security retirement benefits do not serve the same purpose as workers’ compensation benefits.” Id. at 67.

5 . The legislature did not enact a statutory provision to accommodate situations such as the current one in which the claimant receives UI benefits while waiting for a determination of her eligibility for TTD benefits. Because such a statutory provision is not included in the Workers' Compensation Act or in the Unemployment Security Act, we are constrained to interpret and apply the statutes as written and to reach the result herein.

6 . The fact that a claimant may have adequate financial resources to wait during TTD litigation and thereby collect full UI benefits after TTD benefits cease does not make the statute unconstitutional. The statutory offset provision is not focused on the financial capacity of the claimant, but on the payment of UI and TTD benefits to the same individual for the same period of wage loss. As stated above, this focus is rationally related to the legitimate governmental interest in preventing double recovery.