The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion.
SUMMARY June 17, 2021
2021COA83
No. 20CA1475, Browne v. ICAO — Labor and Industry — Workers’ Compensation — Benefits — Limits on Temporary and Permanent Partial Disability Payments — Effect of Previous Injury or Compensation
A division of the court of appeals considers the relationship
between section 8-42-107.5, C.R.S. 2020 (capping disability
benefits based on an injured worker’s “impairment rating”), and
section 8-42-104(5)(a), C.R.S. 2020 (apportioning benefits for
successive injuries to the same body part), of the Workers’
Compensation Act. The division concludes that the applicable
statutory disability cap is determined not by combining, but by
separately calculating, the “impairment ratings” for each injury. COLORADO COURT OF APPEALS 2021COA83
Court of Appeals No. 20CA1475 Industrial Claim Appeals Office of the State of Colorado WC No. 5034884
Timothy Browne,
Petitioner,
v.
Industrial Claim Appeals Office of the State of Colorado and City of Colorado Springs, Colorado,
Respondents.
ORDER AFFIRMED
Division I Opinion by JUDGE DAILEY Freyre and Yun, JJ., concur
Announced June 17, 2021
Franklin D. Azar & Associates, P.C., Robert Turner, Colorado Springs, Colorado; The Elliott Law Offices, P.C., Mark D. Elliott, Alonit Katzman, Arvada, Colorado, for Petitioner
No Appearance for Respondent Industrial Claim Appeals Office
Dworkin, Chambers, Williams, York, Benson & Evans, P.C., Gregory K. Chambers, Denver, Colorado, for Respondent City of Colorado Springs
The McCarthy Law Firm, P.C., John D. McCarthy, Arvada, Colorado, for Amicus Curiae Colorado Workers’ Compensation Education Association ¶1 The Workers’ Compensation Act (Act) limits the amount of
temporary and permanent partial disability benefits awardable to
an injured worker, depending upon an injured worker’s
“impairment rating.” § 8-42-107.5, C.R.S. 2020. In 2016, when
this claimant’s benefits were calculated, for injuries sustained with
impairment ratings of 25% or less, temporary and permanent
disability benefits were capped at $86,697.04; for injuries sustained
with impairment ratings greater than 25%, temporary and
permanent disability benefits were capped at $173,391.90.1
¶2 What happens when a worker suffers multiple, compensable
work-related injuries that cumulatively — but not individually —
produce an impairment rating greater than 25% to the same body
part?
1 These figures ($86,697.04 and $173,391.90) are not found in section 8-42-107.5, C.R.S. 2020; other figures are. But that provision instructs the director of the Division of Workers’ Compensation (division) to adjust the disability caps annually “by the percentage of adjustment made by the director to the state average weekly wage pursuant to section 8-47-106[, C.R.S. 2020].” § 8-42-107.5. The date of a claimant’s injury determines which benefits caps will apply. The parties on appeal, as well as the Industrial Claim Appeals Office (Panel) and the administrative law judge (ALJ), agree that $86,697.04 and $173,391.90 accurately represent the lower and higher benefits cap numbers for injuries sustained in 2016.
1 ¶3 The Act mandates an apportionment between injuries: “In
cases of permanent medical impairment,” a claimant’s award or
settlement “shall be reduced” by “deduct[ing] from the permanent
medical impairment rating for [a] subsequent injury” the
“permanent medical impairment rating[s] applicable to the previous
injur[ies] to the same body part.” § 8-42-104(5)(a), C.R.S. 2020.
¶4 The Act does not explicitly articulate how and when the
reduced benefits via apportionment should be calculated. The
present case asks us to resolve this question: Should the final
apportioned impairment rating be calculated first, resulting in the
application of the lesser benefits cap, or should the benefit be
calculated based on the combined rating and then reduced by
subtracting earlier awards?
¶5 Because we conclude that an apportioned “impairment rating”
should be calculated first, we affirm the decision of the Panel
upholding the order of an ALJ limiting the claim to the lower
statutory benefits cap.
I. Background
¶6 Claimant, Timothy Browne, worked as a law enforcement
officer for the City of Colorado Springs (the City). In 2007, he
2 sustained an injury to his cervical spine “during defense tactic
training.” He reached maximum medical improvement (MMI) for
that injury in January 2010 with a permanent impairment rating of
6% of the whole person but with no restrictions. The City admitted
to the 6% injury and paid claimant permanent partial disability
(PPD) benefits having a present value of $31,577.95 for the 2007
injury.
¶7 In July 2016, claimant sustained a second work-related injury
to the same body part, his cervical spine. He reached MMI for this
injury in April 2019. The City filed a final admission of liability
(FAL) admitting to an impairment rating of 25% of the whole person
based upon the treating physician’s impairment rating calculation.
Claimant underwent a division-sponsored independent medical
examination (DIME). The DIME physician agreed with the treating
physician that claimant reached MMI in April 2019, but the DIME
physician calculated claimant’s impairment rating to be 26% of the
whole person.
¶8 The City did not file an FAL after the DIME physician issued
his report. Instead, a dispute arose between the parties over the
apportionment of claimant’s injuries and application of the
3 statutory benefits cap. The City took the position that claimant’s
permanent impairment rating should first be reduced by the 6%
impairment attributable to his 2007 injury, leaving him with a net
permanent impairment rating of 20% and a disability benefits cap
of $86,697.04 for the 2016 injury.
¶9 Claimant countered that the City’s approach improperly
reduced the disability benefits to which he was entitled; according
to him, the statutory benefits cap should be based on the DIME
physician’s total impairment rating of 26%, from which the amount
awarded to him for his 2007 injury should be deducted. Under
claimant’s analysis, the statutory benefits cap — based on an
impairment rating of 26% — would be $173,391.90.
¶ 10 The ingredients and sequence of calculation matter. If, as the
City argues, claimant’s impairment rating is deducted first and the
lower benefits cap applied, his resulting net PPD benefit is
$30,763.47. But if, as claimant argues, the impairment rating is
not deducted first and the award is based on the 26% impairment
rating, the higher benefits cap would apply and claimant’s net PPD
benefit would total $85,880.38. Thus, if claimant’s benefits are
calculated based on the 20% apportioned impairment rating, he will
4 receive $55,116.91 less than he would if benefits are calculated
based on the total 26% impairment rating.
¶ 11 An ALJ who heard the matter concluded that the statute’s
plain language supports the City’s position: the impairment rating
should be apportioned first. The ALJ noted that section 8-42-
104(5) specifies that “the permanent medical impairment rating”
attributable to the older injury “shall be deducted from the
permanent medical impairment rating” of the subsequent injury.
He reasoned that apportionment “is part of the process” used to
determine the overall impairment rating attributable to a specific
injury upon which the final award is ultimately based.
¶ 12 The Panel agreed with the ALJ’s interpretation. It noted that,
contrary to claimant’s proposed formula and in contrast to the
statutory declaration to subtract the earlier impairment rating from
the later injury’s impairment rating, the Act does not specify the
deduction of a previous award for a prior injury. It found nothing in
the Act authorizing such a calculation. It therefore affirmed the
ALJ’s PPD award of $30,763.47 to claimant.
¶ 13 On appeal, claimant asserts that the Panel and the ALJ
misinterpreted the Act. He raises two primary contentions: (1) the
5 plain meaning of the Act mandates that the disability benefits cap
be based on total, combined impairment ratings; and (2)
interpreting the Act to apportion an impairment rating before
applying the benefits cap facially violates the Fourteenth
Amendment’s guarantee of equal protection under the law because
those with impairment ratings of 26% or more from a single injury
receive greater benefits than those with combined impairment
ratings from multiple injuries that collectively exceed 25%. For the
reasons discussed below, we are not persuaded by claimant’s
arguments.
II. The Panel Correctly Interpreted The Act
¶ 14 Claimant first contends that to harmonize the Act’s provisions
and adhere to the words’ plain meaning, the statutory disability cap
should be applied to his combined impairment rating of 26%.
Although he concedes the City is entitled to an apportionment
between injuries, he argues that (1) the cap must be determined,
without regard to apportionment, “as part of the award”; and (2) any
apportionment must be taken later. According to him,
apportionment (1) “simply explains how to calculate the appropriate
offset” after the initial award has been determined; and (2) is
6 accomplished by deducting from the initial award the amount of
disability benefits previously awarded in connection with the prior
¶ 15 Adhering to this sequence in the calculation, claimant asserts,
achieves both the goal of preventing double recovery and the
beneficent purpose of the Act because it would not block claimants
from “accessing the second cap of benefits.”
¶ 16 We disagree with claimant’s reading of the Act.
A. Standard of Review and Rules of Statutory Construction
¶ 17 We review issues of statutory construction de novo. Ray v.
Indus. Claim Appeals Off., 124 P.3d 891, 893 (Colo. App. 2005),
aff’d, 145 P.3d 661 (Colo. 2006). Consequently, we are not bound
by the Panel’s interpretation of the Act or the Panel’s earlier
decisions. Olivas-Soto v. Indus. Claim Appeals Off., 143 P.3d 1178,
1180 (Colo. App. 2006).
¶ 18 We interpret the Act “according to its plain and ordinary
meaning.” Davison v. Indus. Claim Appeals Off., 84 P.3d 1023,
1029 (Colo. 2004). “[W]e give effect to every word and render none
superfluous because we ‘do not presume that the legislature used
language idly and with no intent that meaning should be given to
7 its language.’” Lombard v. Colo. Outdoor Educ. Ctr., Inc., 187 P.3d
565, 571 (Colo. 2008) (quoting Colo. Water Conservation Bd. v.
Upper Gunnison River Water Conservancy Dist., 109 P.3d 585, 597
(Colo. 2005)). “If the statutory language is clear, we apply it as
written.” Pinnacol Assurance v. Hoff, 2016 CO 53, ¶ 48.
¶ 19 However, where an agency’s governing statute is subject to
different reasonable interpretations, we defer to the agency’s
interpretation. Keel v. Indus. Claim Appeals Off., 2016 COA 8, ¶ 31;
see Rocky Mountain Cardiology v. Indus. Claim Appeals Off., 94 P.3d
1182, 1184-85 (Colo. App. 2004) (noting that an administrative
agency’s interpretation of its governing statute will be set aside
“only if it is inconsistent with the clear language of the statute or
with the legislative intent”).
B. Relevant Statutory Provisions
¶ 20 We are concerned here with the interpretation of two statutes:
section 8-42-107.5 and section 8-42-104(5).
¶ 21 Section 8-42-107.5 places a cap on the amount of combined
temporary and permanent disability benefits a claimant can receive.
It divides claims into two categories: (1) those for injuries with an
impairment rating of “twenty-five percent or less” and (2) those for
8 injuries with an impairment rating “greater than twenty-five
percent.” § 8-42-107.5. The former are subject to a lower benefits
cap than the latter. The statute provides:
No claimant whose impairment rating is twenty-five percent or less may receive more than[, as applicable here, $86,697.04] from combined temporary disability payments and permanent partial disability payments. No claimant whose impairment rating is greater than twenty-five percent may receive more than[, as applicable here, $173,391.90] from combined temporary disability payments and permanent partial disability payments. . . .
Id.
¶ 22 Section 8-42-104(5) — which applies when a claimant has
sustained multiple injuries to the same body part — mandates that
the permanent impairment rating from the first injury must be
subtracted from any permanent impairment rating assigned after
the second, or subsequent, injury. The relevant portions of section
8-42-104 provide:
(1) The fact that an employee has suffered a previous disability or impairment or received compensation therefor shall not preclude compensation for a later injury or for death . . . .
....
9 (3) An employee’s temporary total disability, temporary partial disability, or medical benefits shall not be reduced based on a previous injury.
(5) In cases of permanent medical impairment, the employee’s award or settlement shall be reduced:
(a) When an employee has suffered more than one permanent medical impairment to the same body part and has received an award or settlement under the [Act] or a similar act from another state. The permanent medical impairment rating applicable to the previous injury to the same body part, established by award or settlement, shall be deducted from the permanent medical impairment rating for the subsequent injury to the same body part.
Id. (emphasis added).
C. Analysis
1. The Apportionment Provision is Clear and Unambiguous
¶ 23 Section 8-42-104(5) permits the apportionment of a disability
between multiple injuries. It unequivocally states that, as between
successive injuries to the same body part, apportionment is
accomplished by subtracting the “permanent medical impairment
rating” attributable to a claimant’s previous injury from the
“permanent medical impairment rating” assigned to a claimant after
10 any subsequent injury. § 8-42-104(5). Contrary to claimant’s
assertion, nothing in section 8-42-104(5) or any other provision in
the Act authorizes apportionment based on the deduction of a
previous monetary award from a later one.
¶ 24 Because “[i]n interpreting a statute, we must accept the
General Assembly’s choice of language,” we cannot “add or imply
words that simply are not there.” State v. Medved, 2019 CO 1, ¶ 19
(quoting People v. Diaz, 2015 CO 28, ¶ 15); see Kraus v. Artcraft
Sign Co., 710 P.2d 480, 482 (Colo. 1985) (“We have uniformly held
that a court should not read nonexistent provisions into the
Colorado Work[ers’] Compensation Act.”). Had the General
Assembly wanted the Act to authorize apportionment by, as
claimant wishes, subtracting a prior award from a subsequent one,
it could have “written the statute to reflect that outcome.” Munoz v.
Am. Fam. Mut. Ins. Co., 2018 CO 68, ¶ 13. But it didn’t: it based
apportionment solely on a consideration of “permanent medical
impairment rating[s].”
¶ 25 Because section 8-42-104(5) plainly and unambiguously
states that a claimant’s prior “impairment rating” must be deducted
when apportioning a prior injury, we must adhere to this statutory
11 mandate and apportion claimant’s impairment rating by deducting
the 6% attributable to his 2007 injury from the 26% impairment
rating he received after his 2016 work injury.2 Under section 8-42-
104(5)’s mandate, this results in an impairment rating of 20%
attributable to claimant’s 2016 injury.
2. Determining the Applicable Benefits Cap
¶ 26 The statutory disability benefits cap, section 8-42-107.5, is
similarly clear. It sets a lower cap for injuries resulting in
impairment ratings of 25% or less, and a higher cap for more
serious injuries that result in impairment ratings of 26% or higher.
¶ 27 But what is the applicable “permanent medical impairment
rating,” for purposes of determining which of the two benefits caps
applies in section 8-42-107.5? Is it, as claimant argues, the “total”
or “cumulative” impairment rating resulting from multiple injuries
to the same body part? Or is it, as the City argues, simply the
2 This, by the way, has long been the practice in this state. See, e.g., Colo. Fuel & Iron Corp. v. Rhodes, 166 Colo. 82, 86, 441 P.2d 652, 654 (1968) (Apportionment is determined by “computing the percentage of entire disability and deducting therefrom the percentage of the previous disability as it existed at the time of the subsequent injury.”).
12 “permanent impairment” rating attributable to the current injury
alone (as determined via the apportionment process)?
¶ 28 In support of his argument, claimant points out that despite
numerous amendments to the apportionment statute, it has never
been altered to specify how the benefits cap should be determined.
While that’s true, the legislature’s silence does not answer the
question posed. With no express guidance from the legislature, it is
equally likely that it intended claims to be apportioned first and the
applicable benefits cap determined second. We do not read the
General Assembly’s silence on this issue as making claimant’s
proposed interpretation more plausible.
¶ 29 Indeed, in our view the more plausible construction
determines the statutory cap based on a previously apportioned
impairment rating.
¶ 30 Apportionment recognizes that an injured worker is not barred
from recovering for a work injury just because he may have
previously suffered a compensable work-related injury. See Empire
Oldsmobile, Inc. v. McLain, 151 Colo. 510, 516, 379 P.2d 402, 405
(1963). But it likewise protects employers from liability attaching
from pre-existing or previous injuries. See, e.g., Lindner Chevrolet v.
13 Indus. Claim Appeals Off., 914 P.2d 496, 499 (Colo. App. 1995)
(noting that the General Assembly “has accorded employers the
protection of apportionment” for prior work-related injuries),
overruling recognized by Baldwin Constr. Inc. v. Indus. Claim
Appeals Off., 937 P.2d 895, 897 (Colo. App. 1997). In practice,
apportionment ensures that an employer is only liable for
impairment resulting from the particular work injury. And that
goal is accomplished by determining the impairment rating for the
injury in question.
¶ 31 Indeed, this distinction becomes apparent when one considers
that the disability benefits cap cannot be applied until a claimant’s
permanent impairment rating can be calculated.
¶ 32 Section 8-42-107.5 applies to permanent, not temporary,
impairment ratings. Consequently, several divisions of this court
have held the cap cannot be applied until a claimant has reached
MMI and been awarded permanent disability benefits. See United
Airlines v. Indus. Claim Appeals Off., 2013 COA 48, ¶ 14
(determining that claimant whose temporary disability benefits
exceeded the statutory cap did not have to repay any portion above
the cap because she had not reached MMI and had not received any
14 permanent disability benefits); Leprino Foods Co. v. Indus. Claim
Appeals Off., 134 P.3d 475, 480 (Colo. App. 2005) (“[B]ecause MMI
is a predicate to a determination of claimant’s medical impairment
rating, and claimant has not yet reached MMI, her permanent
impairment rating cannot yet be determined. Accordingly,
application of the cap is premature.”) (citation omitted); Donald B.
Murphy Contractors, Inc. v. Indus. Claim Appeals Off., 916 P.2d 611,
613 (Colo. App. 1995) (“[O]nly after (1) the claimant reaches [MMI]
and (2) his medical impairment rating is established can the
applicability of [section] 8-42-107.5 be determined.”).
¶ 33 A claimant whose impairment rating must be apportioned has,
then, already reached MMI with respect to at least one prior injury,
and the statutory cap would have been applied to that previous
award. Applying the cap to a combined, rather than an
apportioned, rating effectively caps that portion of the claim twice.
¶ 34 Apportioning a claim before applying the statutory cap avoids
this scenario. When apportionment is taken first, the statutory cap
limits the award for the permanent impairment rating attributable
to each particular injury. Claimant received PPD benefits for his
15 2007 injury and was therefore already subject to the statutory cap
for that injury.
¶ 35 Claimant, however, argues that because the precise language
used in section 8-42-104(5) — “shall be reduced” — is found in
sections 8-42-103 and 8-42-114, C.R.S. 2020, which mandate
offsets for social security and unemployment benefits,
apportionment must also work as an offset to a previously
determined award. But claimant’s reasoning is flawed.
¶ 36 An offset is loosely defined as follows: “the noun ‘offset’ is
defined as a contrary claim or demand by which a given claim may
be lessened or canceled; and the verb ‘offset’ as meaning to balance;
to cancel by contrary claims or sums; to counteract.” Lalime v.
Desbiens, 55 A.2d 121, 123 (Vt. 1947) (citation omitted). Under the
Act, apportionment is not an offset. It is, as we explained above, a
reduction in the impairment rating attributable to an injury. It is
not a reduction of any sum or monetary award.3
3 Claimant’s reliance on Leprino Foods Co. v. Industrial Claim Appeals Office, 134 P.3d 475 (Colo. App. 2005), for a contrary conclusion is misplaced. Leprino Foods had nothing to do with apportionments; it held that no cap could apply until after a claimant had reached MMI but offered no guidance on when any apportionment should be computed. Id. at 481. Consequently, its
16 ¶ 37 Nor does the Act’s goal of preventing double recovery convince
us to adopt claimant’s proposed statutory interpretation. To be
sure, preventing double recovery by claimants is “[a]n important
policy of the” Act. Colo. Comp. Ins. Auth. v. Jorgensen, 992 P.2d
1156, 1165 (Colo. 2000). But determining the benefits cap based
on a claimant’s total or combined impairment rating does not
achieve that goal unless, as claimant suggests, his prior award is
deducted from his current claim benefit. And we have already
determined that the Act does not expressly authorize such a
calculation in place of apportioning a claimant’s impairment rating.
¶ 38 Calculating a claimant’s disability benefit based on a
combined, instead of apportioned, impairment rating is duplicative
in the sense that a claimant would receive a benefit award based on
the earlier impairment rating — here, 6% — and a second award
based on the earlier rating plus the later rating — here, a combined
impairment rating of 26%. Further, in arguing to the contrary,
claimant fails to acknowledge that an impairment rating is part of
the calculation determining the final benefits sum to which a
description of benefits caps does not assist us in answering the questions posed here.
17 claimant is entitled and directly affects how much a claimant will
recover. See §§ 8-42-106, -107(8)(d), C.R.S. 2020 (medical
impairment disability benefits). Incorporating the 6% attributable
to claimant’s prior injury into the calculation of benefits awardable
for his 2016 injury would necessarily result in that 6% being
incorporated into the calculation of benefits twice: first in 2007 and
again in 2016. Adding in the 6% impairment rating from his 2007
injury thus inflates his 2016 award, enabling him to recover more
than just the benefit tied to the 2016 impairment.
¶ 39 As claimant also observes, the purpose of the statutory cap is
“to create an overall savings in workers’ compensation costs to
employers while allowing a more generous award for levels of
impairment exceeding twenty-five percent.” Rogan v. Indus. Claim
Appeals Off., 91 P.3d 414, 416 (Colo. App. 2003). Certainly, then,
permitting higher recoveries in cases of more serious injury is one
goal of the statutory cap, but equally important are cost savings.
Although claimant’s combined impairment rating totals 26%, his
rating with respect to this injury is only 20%. Applying the cap to
the combined impairment rating would, in effect, award claimant
benefits twice for the 6% impairment he suffered in his 2007 injury
18 because calculating benefits based on a 26% impairment rating
necessarily incorporates the 6% impairment rating from the
previous injury. Consequently, applying the benefits cap to the
combined impairment rating frustrates the cost saving goal built
into the Act. See id.
¶ 40 True, the Act “is intended to be ‘remedial and beneficent in
purpose, and should be liberally construed’ in order to accomplish
these goals.” Davison, 84 P.3d at 1029 (quoting Colo. Counties, Inc.
v. Davis, 801 P.2d 10, 11 (Colo. App. 1990)). But the beneficent
goal arching over the Act does not trump an express provision of
the Act. Cf. Curran v. Progressive Northwestern Ins. Co., 29 P.3d
829, 833 (Alaska 2001) (“[P]ublic policy can guide statutory
construction but cannot override a clear and unequivocal statutory
requirement”). Consequently, although one of the Act’s underlying
goals is to generously compensate workers suffering more serious
injuries with a higher benefit cap, we cannot ignore the Act’s
directive to apportion impairment derived from multiple injuries.
¶ 41 We conclude that the legislature’s intent in imposing a
statutory cap and also mandating apportionment of multiple claims
arising out of injuries to the same body part is best achieved by
19 applying the cap to the apportioned impairment rating, as the Panel
determined. Because the Panel’s interpretation does not conflict
with the legislative intent, it is “entitled to great weight.” Jiminez v.
Indus. Claim Appeals Off., 51 P.3d 1090, 1093 (Colo. App. 2002).
We therefore defer to it and adopt it. See Keel, ¶ 31.
¶ 42 Consequently, we perceive no error in the Panel’s affirmance of
the ALJ’s order limiting claimant’s recovery on this claim to the
lower statutory benefits cap.
III. Equal Protection
¶ 43 Claimant also contends that the Panel’s interpretation violates
his right to equal protection under the law. Specifically, he argues
that it treats him differently from other injured workers. He asserts
that applying the statutory benefits cap to an apportioned injury
“would deny workers who receive a total rating of 26% or higher
from two or more combined injuries the ability to reach the higher
cap of benefits, but would allow those with just one injury of 26% or
higher to reach the higher cap of benefits.” We are not persuaded
that the Panel’s interpretation violates equal protection.
20 A. Law Governing Equal Protection
¶ 44 As claimant concedes, “workers’ compensation claimants are
not a suspect class and . . . workers’ compensation benefits are 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.” Sanchez v. Indus. Claim Appeals Off., 2017 COA
71, ¶ 20 (citations omitted).
¶ 45 “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.’” Id. at ¶ 21 (quoting Pace Membership Warehouse v.
Axelson, 938 P.2d 504, 506 (Colo. 1997)). Our review must be
“especially deferential to legislative choice: ‘[S]o long as it is
arguable that the other branch of government had [a rational] basis
for creating the classification, a court should not invalidate the
law.’” Culver v. Ace Elec., 971 P.2d 641, 646 (Colo. 1999) (quoting 2
Ronald D. Rotunda et al., Treatise on Constitutional Law § 18.3
(1986)).
21 ¶ 46 “[T]he burden is on claimant, as the challenging party, to
prove the statute is unconstitutional . . . .” Pepper v. Indus. Claim
Appeals Off., 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).
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 other persons who are similarly situated.
Peregoy v. Indus. Claim Appeals Off., 87 P.3d 261, 265 (Colo. App.
2004).
B. Analysis
¶ 47 Here, claimant’s equal protection challenge rests on his
assertion that all claimants with impairment ratings in excess of
25% are similarly situated and entitled to equal treatment under
the law. But they are not. Claimant’s impairment rating is the sum
of his ratings from two different injuries. Other claimants with
impairment ratings greater than 25% suffered just one injury.
22 ¶ 48 Sustaining two work-related injuries places claimant and
other multiple-incident claimants in a different category from
claimants who have sustained just one injury and results in a key
distinction between the two groups: those claimants who have
suffered a prior injury received disability benefits for the prior injury
because those claimants were entitled to disability benefits based
on that earlier permanent impairment rating. See § 8-42-104(5);
§ 8-42-107; § 8-42-111, C.R.S. 2020. In contrast, workers who
sustained a single injury resulting in an impairment rating of 26%
or more have not previously received any disability benefits. The
two groups are consequently not similarly situated. Claimant
therefore cannot meet his threshold burden of establishing that he
was treated differently than other similarly situated claimants. See
Peregoy, 87 P.3d at 265.
¶ 49 Certainly, in some circumstances, all workers’ compensation
claimants have been lumped into the same category. See, e.g.,
Culver, 971 P.2d at 646 (“For purposes of further analysis, we
assume that all injured claimants are similarly situated.”); Sanchez,
¶ 25 (“We therefore conclude that the class should be defined more
narrowly as comprising all workers’ compensation litigants, because
23 parties to workers’ compensation actions are subject to different
rules and a different statutory scheme than other litigants.”). But
even if we were to assume for the purposes of our analysis here that
all workers’ compensation claimants with impairment ratings
greater than 25% are similarly situated, claimant still cannot meet
his burden of establishing a constitutional violation.
¶ 50 Employing claimant’s formula to ascertain benefits payable to
multi-injury claimants necessarily results in basing benefits on the
same impairment rating twice: (1) when calculating benefits for the
previous injury; and (2) when adding the prior impairment rating to
the rating obtained in the subsequent injury. As claimant’s
situation exemplifies, he received PPD benefits based on his 6%
impairment rating for his 2007 injury. If we now calculate his
award based on the combined rating of 26%, rather than
apportioning first, benefits for the initial 6% rating would effectively
be calculated twice and the resulting sum would be inflated by an
additional 6% not attributable to the current injury. And that is a
result at odds with the Act’s goal of avoiding duplicative recoveries.
See Jorgensen, 992 P.2d at 1165.
24 ¶ 51 Nor was claimant actually deprived of access to a higher total
award for his two injuries. In 2007, his injury was subject to a
$75,000 cap applicable to injuries with impairment ratings of 25%
or less. § 8-42-107.5, C.R.S. 2006. He received $28,930.94 in
disability benefits for that injury, but had his need been greater or
his disability more extensive, up to $75,000 was available to him
before reaching the statutory cap in place in 2007. Importantly, the
2007 award is not tallied into the statutory cap for the 2016 injury;
the 2016 injury is subject to its own statutory cap, which had
increased to $86,697.04. Thus, the maximum combined statutory
caps available to claimant for his 2007 and 2016 injuries totals
$161,697.04. It is worth noting, too, that had claimant’s 2007
injury been subject to the cap in place in 2016, he would have had
available to him up to $173,394.08 for the two injuries.4 In that
scenario, the combined caps from claimant’s two injuries would
thus slightly exceed the 2016 higher statutory cap of $173,391.90.
Consequently, we disagree that claimant suffered any deprivation at
all.
4 $86,697.04 x 2 = $173,394.08.
25 ¶ 52 Also important to our equal protection analysis is the
existence of a rational basis for any unequal treatment. To
successfully plead an equal protection violation, claimant must
establish the absence of a legitimate governmental interest in
treating some workers with impairment ratings over 25% differently
than others. He has not done so. Although claimant maintains
that his treatment was unfair and unjustified, the supreme court
has found financial grounds to be the basis for rational and
legitimate legislative goals under the Act. The supreme court noted
that there is
a three-fold rational basis for the disparate treatment of [permanent total disability] claimants in comparison to [temporary partial disability], [temporary total disability], and [permanent partial disability] claimants to whom social security and employer-paid retirement benefits are payable after the person’s sixty-fifth birthday. They include: maintaining the fiscal integrity of the workers’ compensation system; allocating the fiscal burden equitably among funding sources; and controlling costs to employers while providing legislatively-intended benefits to injured workers. We agree that the offset provision has a rational basis.
Culver, 971 P.2d at 651-52. Similarly here, the goal of preventing
inflated recoveries is a rational basis for the legislature to treat
26 claimants with one injury netting an impairment rating greater than
25% differently from claimants whose impairment rating of 26% or
more was caused by multiple injuries to the same body part.
¶ 53 We therefore conclude that claimant has failed to establish
that basing the statutory benefits cap on apportioned impairment
ratings violates his right to equal protection under the law. See
Pepper, 131 P.3d at 1139.
IV. Disposition
¶ 54 The order is affirmed.
JUDGE FREYRE and JUDGE YUN concur.