AVIADO v. Industrial Claim Appeals Office, No. 08CA0923.

• Decision Date: 14 May 2009
• Docket Number: No. 08CA0923.
• Citation: 228 P.3d 177
• Parties: Rosario AVIADO, Petitioner, v. INDUSTRIAL CLAIM APPEALS OFFICE of the State of Colorado, Ensicon Corporation, and Wausau Insurance Corporation, Respondents.
• Court: Colorado Court of Appeals

228 P.3d 177

Rosario AVIADO, Petitioner, v. INDUSTRIAL CLAIM APPEALS OFFICE of the State of Colorado, Ensicon Corporation, and Wausau Insurance Corporation, Respondents.

No. 08CA0923.

Colorado Court of Appeals, Div. II.

April 16, 2009.

Rehearing Denied May 14, 2009.

Chris Forsyth Law Office, LLC, Chris Forsyth, Denver, Colorado, for Petitioner.

No Appearance for Respondent Industrial Claim Appeals Office.

Moseley, Busser & Appleton, P.C., Scott M. Busser, Denver, Colorado, for Respondents Ensicon Corporation and Wausau Insurance Corporation.

Opinion by Judge CASEBOLT.

In this workers' compensation proceeding, Rosario Aviado (claimant) seeks review of that part of the final order issued by the Industrial Claim Appeals Office (Panel) that denied her claim for permanent total disability (PTD) benefits. We affirm.

I. Background

Claimant sustained an admitted injury to her bilateral upper extremities and suffers from bilateral carpal tunnel syndrome. She underwent a division-sponsored independent medical examination (DIME). The DIME physician opined that claimant's impairment did not extend beyond her extremities and rated the right arm at seven percent impairment and the left arm at four percent impairment. Ensicon Corporation and its insurer, Wausau Insurance Corporation (collectively employer), filed a final admission of liability (FAL) for a scheduled injury based on the DIME rating.

Claimant contested the FAL and sought PTD benefits. Following an evidentiary hearing, the administrative law judge (ALJ) concluded that claimant had failed to meet her burden of proving that she was permanently and totally disabled and awarded benefits consistent with employer's FAL. The Panel affirmed on review.

II. Surgery Refusal

Claimant first contends that the ALJ erred by denying PTD benefits based on her refusal to undergo surgery, which the ALJ also found to be unreasonable. She asserts that surgery refusal is an affirmative defense that employer did not endorse for hearing. We perceive no reversible error.

Section 8-40-201(16.5)(a), C.R.S.2008, defines PTD as the claimant's inability "to earn any wages in the same or other employment." Section 8-43-404(3), C.R.S.2008, permits compensation to be reduced or suspended if the claimant refuses to submit to medical or surgical treatment that is reasonably essential to promote recovery.

Here, the ALJ concluded that claimant's refusal was a bar to her PTD claim. However, the order also contains extensive evidentiary findings supporting the ALJ's additional determination that claimant had failed to prove she has no ability to earn wages. The ALJ correctly described the legal standard for determining PTD, and recognized the necessity of considering the various human factors pertinent to whether claimant is able to earn wages and whether suitable employment is reasonably available in the competitive job market. The ALJ found that claimant retains the ability to perform several jobs in the sedentary category that are reasonably available and require no significant accommodation, and the medical and vocational evidence, albeit conflicting, substantially supports the ALJ's finding. Thus, the findings and conclusions regarding claimant's refusal to undergo surgery were neither essential nor integral to the ALJ's finding that she did not carry her burden of proof.

Because claimant did not sustain her burden of proof, it is unnecessary for us to decide whether claimant's refusal to undergo surgery constituted an affirmative defense and, if so, whether employer waived it by failing to plead, endorse, or otherwise affirmatively raise it. Instead, even if we assume the ALJ erred by determining that claimant's refusal barred the award of any PTD benefits, such error was harmless. See § 8-43-310, C.R.S.2008 (appellate court shall disregard any irregularity or error that does not affirmatively appear to have damaged the complaining party).

III. Evidentiary Error

Claimant next contends that the ALJ erred by excluding her testimony regarding whether a return visit with her treating physician was authorized after employer had a functional capacity evaluation (FCE) prepared. The ALJ sustained employer's objection, finding that the testimony was irrelevant. We perceive no error.

Evidence is relevant if it has any tendency to make the existence of a consequential fact more or less probable. CRE 401. The ALJ has discretion to determine the relevancy of evidence. See §§ 8-43-207(1)(c) (ALJs are empowered to make evidentiary rulings), 8-43-210 (Colorado Rules of Evidence apply in all hearings), C.R.S.2008; One Hour Cleaners v. Indus. Claim Appeals Office, 914 P.2d 501, 506 (Colo.App.1995) (ALJ has broad discretion to determine the admissibility of expert testimony, and appellate courts may not overturn a ruling unless it is manifestly erroneous).

Claimant urges that the testimony was relevant because employer's vocational expert relied on the FCE and the ALJ adopted both the treating physician's restrictions and the recommendations of the FCE, finding that they were consistent. Claimant further asserts that employer's objection to the testimony estopped it from later seeking to have the ALJ consider the FCE. However, the ALJ did not limit questioning regarding the FCE and the only offer of proof was claimant's explanation that the testimony would show that employer would not authorize a follow-up visit to the treating physician.

Under these circumstances, we fail to perceive how the question made it more or less likely that the treating physician did or did not agree with the recommendation of the FCE. Therefore, we are satisfied that the ALJ acted within his discretion in sustaining employer's objection to the question on the grounds of relevance and determining that employer was not estopped from seeking consideration of the FCE.

IV. Right to a District Court Hearing

Claimant next contends that she did not expressly waive or surrender her common law rights and was entitled to bring a claim in the district court. She also contends that portions of the Workers' Compensation Act are unconstitutional. We disagree.

An injured worker's exclusive remedy for injuries that arise out of or in the course of employment is recovery under the workers' compensation statutes. § 8-41-102, C.R.S. 2008; Pizza Hut of Am., Inc. v. Keefe, 900 P.2d 97, 100 (Colo.1995). The Act, and specifically its compulsory elimination of common law rights, has been repeatedly held constitutional. Kandt v. Evans, 645 P.2d 1300, 1306 (Colo.1982) (citing cases).

Thus, section 8-41-104, C.R.S.2008, which creates a conclusive statutory presumption of an employee's acceptance of coverage, has been upheld against constitutional attack, see Ryan v. Centennial Race Track, Inc., 196 Colo. 30, 32, 580 P.2d 794, 795-96 (1978), and it is not required that a claimant be given the option of consenting to a hearing and adjudication by an ALJ. See Dee Enters. v. Indus. Claim Appeals Office, 89 P.3d 430, 438 (Colo.App.2003).

A.

Claimant nevertheless asserts that, at common law, she had the fundamental constitutional right to a hearing in district court under Colorado Constitution article VI, section 9. She asserts that, because district courts have "original jurisdiction in all civil... cases, except as provided in the constitution," her right to such a hearing cannot be abrogated by a mere statute, but must be abrogated by another provision of the constitution itself or by an amendment thereto. We disagree.

Claimant is correct that, under the cited constitutional provision, the district court has original jurisdiction in civil cases. However, the constitution does not define the term "civil case." Instead, that term is left for the General Assembly to define. See People ex rel. Terrell v. Dist. Court, 164 Colo. 437, 443, 435 P.2d 763, 766 (1967) (the constitution does not define the phrase "criminal cases" in article VI, section 9; hence, the legislature has the power to define crimes); see also People v. Gilliland, 769 P.2d 477, 480 (Colo.1989) (while district courts have general jurisdiction over criminal cases, it is the constitutional prerogative of the legislature to define crimes).

A civil action is a judicial proceeding to enforce a private right. See Hernandez v. Downing, 154 P.3d 1068, 1070 (Colo.2007) ("a proceeding on the part of one person, as actor, against another, for the infringement of some right of the first, before a court of justice, in the manner prescribed by the court or law" (quoting Clough v. Clough, 10 Colo.App. 433, 439, 51 P. 513, 515 (1897), aff'd, 27 Colo. 97, 59 P. 736 (1899))).

Here, the General Assembly essentially has determined that workers' compensation cases are not civil cases that must be heard in a judicial court. See Whiteside v. Smith, 67 P.3d 1240, 1248 (Colo.2003) (workers' compensation claimants cannot litigate their injury claims in civil proceedings); Barron v. Kerr-McGee Rocky Mountain Corp., 181 P.3d 348, 348 (Colo.App.2007) (an employer that complies with the provisions of the Workers' Compensation Act is immune from all civil actions that may be brought by an employee for a work-related injury); cf. Colorado Ins. Guar. Ass'n v. Menor, 166 P.3d 205, 210-11 (Colo.App.2007) (under statute providing for nonduplication of benefits, Colorado Insurance Guaranty Association had a private civil remedy enforceable in the district court, outside Workers' Compensation Act, to seek offset that would reduce employee's workers' compensation benefits based on employee's uninsured motorist settlement); Jorgensen v. Colo. Comp. Ins. Auth., 967 P.2d 172 (Colo.App.1998), aff'd, 992 P.2d 1156 (Colo.2000) (jurisdiction to apportion tort settlement proceeds between economic and noneconomic damages so as to determine amount of workers' compensation insurance carrier's right of subrogation lies in the district court; apportionment case is a separate cause of action, not an ancillary proceeding to...