Christie v. Coors Transportation Co.

Justice MULLARKEY,

concurring:

I join the majority’s opinion except as to part II A. I disagree with the majority’s conclusion in part II A that employees seeking an initial determination of eligibility benefits are not similarly situated to employees whose cases are reopened to determine whether they should continue receiving permanent total disability benefits. In my view, employees seeking an initial determination pursuant to section 8-40-201(16.5)(a), 3B C.R.S. (1996 Supp.) are similarly situated to those employees whose cases may be reopened pursuant to section 8-43-303(3), 3B C.R.S. (1996 Supp.). However, because I believe that there is a rational basis for treating these two groups differently that is related to a legitimate state interest, I concur with the result reached by the majority, i.e., that the statutes do not violate equal protection.

I.

Section 8-40-201 provides that permanent total disability (PTD) “means the employee is unable to earn any wages in the same or other employment.” § 8-40-201(16.5)(a), 3B C.R.S. (1996 Supp.). At the initial determination of eligibility for PTD benefits, the burden is on the employee to prove his or her inability to earn any wages. See id. In contrast, section 8-43-303(3) provides that a permanent total disability case can be reopened when “the claimant has returned to employment and is earning in excess of four thousand dollars per year or has participated in activities which indicate that the claimant has the ability to return to employment.” § 8-43-803(3), 3B C.R.S. (1996 Supp.).

As noted by the majority, a statutory classification violates the equal protection provisions of the federal and state constitutions when it arbitrarily singles out a group of persons for disparate treatment while not treating other similarly situated persons in the same manner. See Industrial Claim Appeals Office v. Romero, 912 P.2d 62, 66 (Colo.1996). In this case, the claimant argued that because the standard for PTD at an initial determination is different from the standard for reopening a PTD proceeding, the statutes necessarily violated equal protection. The majority rejects this argument and summarily concludes that employees seeking an initial determination of eligibility benefits are not similarly situated to employees whose cases may be reopened to determine whether they should continue receiving PTD benefits because these groups of persons are in “two distinct stages of the process for determining PTD benefits.” Maj. op. at 1384. While I agree that the claimant’s argument is without merit, I disagree with the majority’s rationale.

A legislative classification is reasonable if it “includes all persons who are similarly situated with respect to the purpose of the law.” J. Tussman & J. tenBroek, The Equal Protection of the Laws, 37 Cal. L.Rev. 341, 346 (1949). Therefore, whether persons are similarly situated for equal protection analysis depends on the purpose of the law or laws at issue. The purpose of both section 8-40-201(16.5)(a), 3B C.R.S. (1996 Supp.), and section 8-43-303(3), 3B C.R.S. (1996 Supp.), is to determine whether an injured claimant is eligible for permanent total disability benefits. Further, the claimants in both initial proceedings and reopening proceedings are persons who have been injured on the job, and the key issue in both proceedings is whether the claimant should receive benefits payable to a permanently and totally disabled person.

I find that the majority’s differentiation of claimants based on the stage of their proceeding requires too exacting a focus on the procedural aspects of making a PTD determination.¹ The contrasting standards in this ease reflect the fact that the evidence available for an initial determination is often different from the evidence available for a reopening proceeding. As such, the classification does not concern the types of persons or groups involved, but rather the procedures that are necessary, given the evidence available at the time of the proceeding, to determine a claimant’s ability to earn wages. Thus, I find that the situations of those persons seeking an initial determination of eligibility pursuant to section 8-40-201(16.5)(a) and those persons whose cases may be reopened pursuant to 8-43-303(3) are similar enough to conclude that further analysis of the legislature’s basis for the different treatment is necessary.

II.

When determining whether a statute violates equal protection, the applicable level of judicial scrutiny is dependent upon the type of classification involved and the nature of the right affected. See Romero, 912 P.2d at 66. Here, as noted by the majority, the parties before us agree that the rational basis standard should be applied. See Maj. op. at 1332. Under that standard, a statutory classification “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 state purpose.” Id. The disparity between the standard for an initial determination of permanent total disability and the standard for reopening a PTD proceeding does not violate equal protection because there is a rational basis for the difference that is related to legitimate state interests.

First, as noted by the court of appeals’ decision in this case, restricting reopening proceedings to only those eases where a claimant earns more than $4000 is rationally related to the legislative purpose of providing benefits efficiently and with limited litigation. Because the legislature has intentionally made it difficult to initially qualify for PTD benefits, it seems reasonable to protect judicial resources by requiring more substantial evidence that the claimant' can return to work and earn wages before allowing an employer to reopen the case.

Second, the higher standard for reopening the PTD determination protects claimants who have already met the difficult burden of proving that they are unable to earn any wages. As noted by the court of appeals in McKinney v. Industrial Claim Appeals Office, 894 P.2d 42 (Colo.App.1995),

The legislative history of the [1991] amendments demonstrates that the legislators recognized the difficulty of predicting at the time of adjudication whether someone adjudged to be permanently and totally disabled would ever regain the ability to be re-employed or earn non-wage income_ The legislators were of the view that it would be punitive and demoralizing to prohibit such endeavors entirely.

McKinney, 894 P.2d at 45. I find that protecting the ability of injured workers to develop new skills and attempt to earn a limited additional income is a rational basis for applying a different standard for reopening.

Last, the different standard is justified by the different types of evidence available at the two proceedings. At the initial proceeding, the injured employee is required to prove that he or she will be unable to earn any wages. Such proof is made generally through expert testimony which, to a reasonable degree of certainty, attempts to predict the claimant’s future ability to secure employment and earn a wage. For example, in this ease, an expert retained by the claimant, relying on his interpretation of the claimant’s functional capacity evaluation, testified that it was his opinion that the claimant “would not be able to earn a wage on a regular and consistent basis and that his estimated vocational impairment was one hundred percent.” Maj. op. at 1332. An expert retained by Coors, utilizing the same functional capacity evaluation, testified that the claimant could earn wages as an information clerk, cashier, or telephone operator. See id. Given the subjective quality of these evaluations, an expert’s prediction of a claimant’s future employment and earning capacity rarely can be made with absolute certainty.

In contrast, when an employer makes a motion to reopen proceedings, objectively verifiable evidence of the injured claimant’s earning capacity is often available. The legislature therefore provided that a PTD determination can be reopened only if the claimant actually earns more than $4000 or is involved in activities which indicate an ability to return to employment. Thus, the reopening determination must be based on historical fact which can be determined with certainty. In my view, the availability of historical fact demonstrating a claimant’s earning capacity is sufficient justification for the application of a different standard for reopening a PTD determination.

III.

I agree with the majority that the definition of PTD found in section 8-40-201(16.5) should not be interpreted in light of the reopening provision at section 8 — 43-303(3). See maj. op. at 1333. However, because I find for the purposes of equal protection analysis that the persons involved in an initial determination are similarly situated to those persons whose cases are reopened, I would hold that it is necessary to resolve whether there is a rational basis for treating the two groups of persons differently. Therefore, as opposed to finding that equal protection is not implicated, I would hold that although these groups are similarly situated the reasons for having a $4000 earnings threshold to reopen a PTD award are rationally related to the legitimate purposes of protecting injured workers and efficiently providing workers’ compensation benefits. Thus, I concur with the result reached by the majority and join the opinion except as to part II A.

I am authorized to say that Justice BENDER joins in this concurrence.

1 . C.f. Duran v. Industrial Claim Appeals Office, 883 P.2d 477, 480 n. 9 (Colo.1994) (stating that determining whether individuals suffering a complete loss of use of an extremity were similarly situated to individuals suffering from a partial loss of use of an extremity required "too exacting a focus on the injury creating the classification.”).