Avalanche Industries v. Icao

• Decision Date: 22 March 2007
• Citation: Avalanche Industries v. Icao, 166 P.3d 147 (Colo. App. 2007)
• Docket Number: 06CA0716
• Parties: AVALANCHE INDUSTRIES, INC., Great States Insurance Company c/o Colorado Insurance Guaranty Association, and Western Guaranty Fund, Petitioners, v. INDUSTRIAL CLAIM APPEALS OFFICE of the State of Colorado and Gladys Louise Clark, Respondents.
• Court: Colorado Court of Appeals

166 P.3d 147

AVALANCHE INDUSTRIES, INC., Great States Insurance Company c/o Colorado Insurance Guaranty Association, and Western Guaranty Fund, Petitioners, v. INDUSTRIAL CLAIM APPEALS OFFICE of the State of Colorado and Gladys Louise Clark, Respondents.

No. 06CA0716.

Colorado Court of Appeals, Div. IV.

March 22, 2007.

Certiorari Granted August 27, 2007.

McElroy, Deutsch, Mulvaney & Carpenter, LLP, Thomas L. Kanan, C. Adam Foster, Denver, Colorado, for Petitioners.

John W. Suthers, Attorney General, Mark N. McMullen, Assistant Attorney General, Denver, Colorado, for Respondent Industrial Claim Appeals Office.

Heuser and Heuser, LLP, Gordon J. Heuser, Colorado Springs, Colorado, for Respondent Gladys Louise Clark.

Opinion by Judge HAWTHORNE.

In this workers' compensation proceeding, Avalanche Industries, Inc., and its insurers, Great States Insurance Company and Western Guaranty Fund (collectively employer), seek review of a final order of the Industrial Claim Appeals Office (Panel) affirming the order of the administrative law judge (ALJ) that the average weekly wage (AWW) of Gladys Louise Clark (claimant) should be recalculated to reflect her higher earnings from a subsequent employer and to include the cost of her group health insurance. We affirm.

Claimant suffered an industrial injury in July 2000. Shortly thereafter, she was informed by employer that her group health coverage would terminate but that she could receive health and dental insurance benefits under the Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA), 42 U.S.C. § 300bb-1, et seq. (2006), at a cost of $78.90 per week. Claimant declined the available COBRA benefits because she received group health insurance benefits from a subsequent employer.

In March 2001, claimant commenced employment with her most recent employer.

On April 3, 2001, claimant was placed at maximum medical improvement. Following a division-sponsored independent medical examination, claimant received a twelve percent whole person permanent medical impairment rating.

In December 2001, employer filed a final admission of liability (FAL) admitting responsibility for claimant's twelve percent permanent impairment of her lumbar spine and her AWW of $415.63, which was based on claimant's salary at the time she left her employment with employer. Claimant did not contest the FAL, and her claim was closed.

In January 2003, claimant filed a petition to reopen her claim based upon a worsening of her condition. Following an evidentiary hearing, the ALJ found that claimant's condition had worsened between April and September 2001. He therefore granted claimant's petition to reopen, determining she proved that she had suffered an increase in symptoms that was related to her industrial injury. The ALJ awarded claimant temporary total disability (TTD) benefits at the admitted rate of $277.09 for the period February 3 to February 21, 2003. Employer appealed, but the ALJ's findings were upheld both by the Panel and later by another division of this court. Avalanche Indus., Inc. v. Indus. Claim Appeals Office, 2004 WL 2406674 (Colo.App. No. 04CA0636, Oct. 28, 2004)(not published pursuant to C.A.R. 35(f)).

In April 2005, claimant was taken off work by her authorized treating physician. On May 4, 2005, she was advised by her most recent employer that she was eligible to continue its group health care benefits under COBRA. She was also informed that her initial biweekly cost for the insurance would be $129.19, but that the biweekly cost would increase to $357.51, or $178.76 per week, after she had exhausted her available leave under the Family and Medical Leave Act (FMLA), 29 U.S.C. § 1601, et seq. (2006).

At the time claimant was taken off work, her AWW from her most recent employer was $625.

On June 14, 2005, claimant filed an application for hearing and notice to set, endorsing the sole issue of AWW. A hearing was held on the issue on September 26, 2005. However, no evidence was presented at the hearing, and no witnesses were called. Rather, the parties stipulated to the relevant facts. Each party presented argument at the hearing and submitted position statements and briefs to the ALJ.

Employer argued that claimant was not entitled to raise the issue of AWW because the issue had been closed in 2001 when claimant did not contest employer's FAL and it had not been reopened by the ALJ after the worsening of claimant's condition in 2003. Employer also argued that claimant was not entitled to the higher AWW based on a salary earned five years after she had left employer's employ, and that her AWW should not include the cost of health insurance benefits under COBRA offered by her most recent employer because she had not sought such benefits previously.

The ALJ disagreed with employer and awarded claimant an increase in AWW based on her weekly wage while employed by her most recent employer, including the cost of her most recent employer's group health insurance coverage. Claimant was thus awarded TTD benefits based on an AWW of $689.60 for the period April 18 to July 11, 2005, and $803.76 after July 11, 2005, when she would no longer be eligible for leave under FMLA from her most recent employer.

Employer appealed to the Panel, which affirmed the ALJ's determination. The Panel concluded that, contrary to employer's contention, the ALJ's 2003 order granting claimant's petition reopened claimant's entire award, not just issues pertaining to her medical benefits. The Panel also concluded that the ALJ had not abused his discretion in basing claimant's AWW on the salary she earned from her most recent employer, despite the fact that claimant had left her position with employer five years before her claim for an increase in her AWW, because the ALJ had the discretionary authority under § 8-42-102(3), C.R.S.2006, to increase claimant's AWW if equity so demanded. Finally, the Panel also upheld the ALJ's inclusion of the cost of claimant's most recent employer's group health plan, finding that the phrase "employer's group health insurance plan" in § 8-40-201(19)(b), C.R.S.2006, was broad enough to incorporate a claimant's subsequent employers.

I.

Employer first argues that it was denied its rights to equal protection and due process guaranteed by the Colorado Constitution, art. II, § 25. Specifically, employer contends that its right to procedural due process was violated by the ALJ's failure to make adequate findings in his order, and that its right to equal protection was violated because the AWW statutes were applied differently to it than to other similarly situated employers that have not been required to compensate a claimant for AWW based on wages earned from a subsequent employer. We disagree with both arguments.

A.

A party's right to procedural due process is met if the party is provided with notice and an opportunity to be heard. Pub. Utils. Comm'n v. Colo. Motorway, Inc., 165 Colo. 1, 10, 437 P.2d 44, 48 (1968). The essence of procedural due process is fundamental fairness. City & County of Denver v. Eggert, 647 P.2d 216, 224 (Colo.1982).

However, here, employer is not alleging that it was denied proper notice or hearing. Its procedural due process claim rests solely on its contention that the ALJ's order was brief and did not make adequate findings.

It is axiomatic that where significant rights are at issue, the decisionmaker must state the reasons for his or her determination. Mau v. E.P.H. Corp., 638 P.2d 777, 780 (Colo.1981). However, the Due Process Clause of the Colorado Constitution does not guarantee a party an order setting out every finding on which the order is based. Employer cites to no case, and we know of none, imposing an obligation to expound thoroughly on the reasons and findings underlying a decision. Cf. Shafer Commercial Seating, Inc. v. Indus. Claim Appeals Office, 85 P.3d 619, 621 (Colo.App. 2003)("the ALJ is not held to a crystalline standard of findings"). Because the Due Process Clause imposes no such requirement we decline to impose such a burden on the ALJ.

B.

The right to equal protection guarantees that persons who are similarly situated will receive like treatment under the law. Harris v. The Ark, 810 P.2d 226, 229 (Colo. 1991). A statute is unconstitutional "as applied" if it is applied with different degrees of severity to different groups of persons described by some suspect trait. Pace Membership Warehouse v. Axelson, 938 P.2d 504 (Colo.1997). A person alleging an equal protection violation has the burden of showing that the classification arbitrarily subjects similarly situated classes of persons to disparate treatment. Indus. Claim Appeals Office v. Romero, 912 P.2d 62 (Colo.1996).

Employer contends that it is unlawfully singled out by being required to compensate claimant at a rate higher than her AWW when she left employer. However, employer cites to no examples of the pertinent AWW statutes being applied to other employers with a different degree of severity. Nor does employer contend that it is being treated differently from other similarly situated employers because it belongs to a group that is described by some suspect trait.

Employer argues that because neither claimant nor the Panel cites to any published case in which a similarly situated employer has also been required to pay an increased AWW based upon a subsequent employer's wage, no such examples exist. However, employer bears the burden of presenting evidence of disparate treatment; it is not the burden of the opposing party to come forward with examples of similarly treated persons. See Pepper v. Indus. Claim Appeals Office, 131 P.3d 1137, 1140 (Colo.App.2005), aff'd sub nom. City of Florence v. Pepper, 145 P.3d 654 (Colo.2006).

Claimant and the Panel argue that other employers have, in fact, been treated in the same manner as employer by being required to pay a claimant an AWW higher than the claimant earned at the time of the initial injury. In...