Duran v. Industrial Claim Appeals Office of State of Colo., Nos. 93SC497

• Docket Nº: 93SC655
• Citation: 883 P.2d 477
• Case Date: October 17, 1994
• Court: Supreme Court of Colorado

Page 477

883 P.2d 477 Byron DURAN, Petitioner,
v.
The INDUSTRIAL CLAIM APPEALS OFFICE OF the STATE OF
COLORADO, Curtice Burns Meat Snacks, Inc., and
Lumbermans Mutual Casualty Company, Respondents.
Felipe URBINA, Petitioner,
v.
The INDUSTRIAL CLAIM APPEALS OFFICE OF the STATE OF
COLORADO, South Valley Dry Wall, and Truck
Insurance Exchange, Respondents. Nos. 93SC497, 93SC655. Supreme Court of Colorado,
En Banc. Oct. 17, 1994.
Rehearing Denied Nov. 7, 1994.

Page 478

Jean E. Dubofsky, P.C., Jean E. Dubofsky, Boulder, Pepe J. Mendez & Associates, P.C., Pepe J. Mendez, Denver, for petitioner.

White and Steele, P.C., John Lebsack, Ted A. Krumreich, Denver, for respondents Curtice Burns Meat Snacks, Inc. and Lumbermans Mut. Cas. Co.

Hall & Evans, L.L.C., Alan Epstein, Denver, for respondents South Valley Dry Wall and Truck Ins. Exchange.

David R. DeMuro, P.C., David R. DeMuro, Law Offices of Robert Weinberger, P.C., Thomas L. Kanan, Jr., Michael J. Steiner, Denver, for amicus curiae Colo. Compensation Ins. Authority.

Plaut, Lipstein, Mortimer, P.C., Frank Plaut, Charles E. Mortimer, Jr., Lakewood, Berry & Singer, John Berry, Denver, for amicus curiae Workers' Comp. Coalition.

Gale A. Norton, Atty. Gen., Stephen K. ErkenBrack, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., James C. Klein, Asst. Atty. Gen., Human Resources Section, Denver, for amicus curiae Dept. of Labor and Employment, Div. of Workers' Comp. and Director of Div. of Workers' Comp.

Wilcox & Ogden, Ralph Ogden, Turner & Meiklejohn, P.C., Robert Turner, Scott Meiklejohn, Denver, for amici curiae Colo. AFL-CIO and the Workers' Comp. Educ. Ass'n.

Chief Justice ROVIRA delivered the Opinion of the Court.

The question presented in these consolidated workers' compensation cases is whether the Workers' Compensation Act of Colorado, sections 8-42-101 to 8-47-209, 3B C.R.S. (1994 Supp.) (the Act) violates equal protection

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of the laws under the federal and state constitutions by establishing two different methods for calculating an award of benefits: one based on a rating schedule applicable to injuries resulting in the partial loss or loss of use of extremities (hands, arms, feet and legs) and the other based on a medical impairment rating applicable to injuries resulting in the total loss or loss of use of extremities and injuries to the torso and head. We uphold the constitutionality of the statutes. I

Background

The Act establishes the benefits scheme for workers injured in the course and scope of employment and the procedures for obtaining those benefits. The legislative purpose of the Act appears in section 8-40-102:

Legislative declaration. (1) It is the intent of the general assembly that the "Workers' Compensation Act of Colorado" be interpreted so as to assure the quick and efficient delivery of disability and medical benefits to injured workers at a reasonable cost to employers, without the necessity of any litigation, recognizing that the workers' compensation system in Colorado is based on a mutual renunciation of common law rights and defenses by employers and employees alike.

The provisions of the Act which establish the framework for calculating permanent partial disability benefits are contained in section 8-42-107. Prior to 1991, that section provided that a worker who permanently injured his hand, arm, foot, or leg was entitled to a minimum award of permanent disability benefits set forth in section 8-51-104(7), even if the injury caused no actual disability. These minimum awards were known as "scheduled awards." If an injured worker suffered an actual loss of earning capacity greater than that provided in the schedule, the worker retained the right to seek a greater award based upon that loss. § 8-54-104(7), 3B C.R.S. (1990 Supp.). All permanent partial disability awards not based on the schedule were based upon the worker's "industrial disability or loss of earning capacity in the labor market and not merely ... a physical impairment or functional disability unrelated to industrial performance." Vail Associates, Inc. v. West, 692 P.2d 1111, 1114 (Colo.1984) (citing Byouk v. Industrial Comm'n, 106 Colo. 430, 434, 105 P.2d 1087, 1089 (1940)). Such benefits were calculated in terms of the percentage of total disability and were determined by "taking into consideration ... the general physical condition and mental training, ability, former employment, and education of the injured employee." § 8-51-108(1)(b), 3B C.R.S. (1986). Under prior law, administrative law judges were given "wide discretion in determining the degree of [a claimant's] disability." Gilliatt v. Industrial Comm'n, 680 P.2d 1310, 1313 (Colo.App.1983).

As amended, ¹ the Act provides two distinct formulas for calculating partial permanent disability benefits. Section 8-42-107(2) retains the schedule system as the exclusive measure of benefits for partial loss or loss of use of a hand, arm, foot, leg, sight or hearing. The schedule establishes a fixed number of weeks to be multiplied by the statutory compensation rate of $150 which is to be multiplied by an "extremity impairment" rating, i.e., the extent to which a hand, for example, is not fully functional after an injury. Section 8-42-107(8), in contrast, provides that benefits for the total loss or loss of use of a hand, arm, foot, leg, or injuries to the torso or head are to be calculated pursuant to the American Medical Association Guides to the Evaluation of Permanent Impairment (Rev.3d ed. 1991), to determine the worker's permanent physical impairment rating. Under this formula, an injury to an extremity is calculated as a "whole body impairment" rating pursuant to tables contained in the American Medical Association's guide.

II

A. Duran

On July 27, 1991, Byron Duran (Duran) sustained an employment-related injury. As

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he was operating a meat mixer for his employer, Curtice Burns Meat Snacks, Inc., Duran's left hand was caught in an auger conduit. He suffered an amputation of his left long finger distal phalanx and severe lacerations of the index and ring fingers. Subsequently, he developed Raynaud's Phenomenon, a cumulative trauma disorder characterized by recurrent episodes of finger blanching due to closure of the digital arteries, which gives rise to pain in the fingers when exposed to cold temperatures. The Raynaud's Phenomenon affects Duran's entire left arm.

On November 13, 1991, Duran returned to work for Curtice Burns. His job requires continuous, repetitive motion of his upper extremities and is performed in a room where the temperature is maintained at forty degrees.

Duran reached maximum medical improvement on April 28, 1992. Dr. Stephan D. Lindenbaum performed an independent medical evaluation of Duran's injury at the request of the Division of Workers' Compensation. Lindenbaum calculated a twenty-eight percent upper extremity impairment and an eighteen percent impairment as a whole person.

The Administrative Law Judge (ALJ) awarded Duran $8,736 in workers' compensation benefits based on the twenty-eight percent upper extremity rating. This award was calculated based on the scheduled list injuries to extremities listed in section 8-42-107(2). ²

Duran appealed the ALJ's award of benefits to the Industrial Claim Appeals Panel (ICAP), arguing that the statutory formula applied by the ALJ mandated for partial injuries ³ denied him equal protection of the laws. His argument was based on the fact that his award of benefits would have been significantly higher ($31,352) had they been calculated as a total injury ⁴ and that the distinction drawn by the Act between partial and total injuries was arbitrary, capricious, and unreasonable. ⁵

ICAP ruled that it lacked the authority to consider Duran's constitutional claim and thus, it affirmed the ALJ's order. Duran filed a petition for writ of certiorari with the

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court of appeals pursuant to C.A.R. 26, which was denied. ⁶ Duran then petitioned this court for a writ of certiorari pursuant to C.A.R. 46.7, 49, and 52(b), which was granted.

B. Urbina

On September 19, 1991, Felipe Urbina (Urbina) sustained an employment-related injury. He was standing on a mobile scaffold hanging sheet rock for his employer, South Valley Dry Wall, when he fell about six feet, landing on his back. He suffered acute cervical and lumbar strain and thoracic compression fractures as a result of the fall.

Urbina was unable to return to work as a drywaller, which frequently requires heavy lifting. He reached maximum medical improvement on March 27, 1992 at age 37.

Dr. Kasiel Steinhardt performed an independent medical examination at the request of the Division of Workers' Compensation. On the basis of permanent injury to Urbina's back, Steinhardt concluded that Urbina suffered a twelve percent impairment of the whole person. Urbina's employer-selected physician, Dr. Joan K. Szynal, assessed his permanent shoulder injury as an eight percent upper extremity impairment that is equivalent to a five percent whole person impairment rating.

The ALJ accepted Steinhardt's evaluation of Urbina's back injury at twelve percent impairment of a total injury, and awarded him $22,425.60 in benefits pursuant to section 8-42-107(8)(d). The ALJ also accepted Szynal's evaluation of Urbina's shoulder injury as an eight percent upper extremity impairment and awarded him an additional $2,496 pursuant to the partial injury schedule under section 8-42-107(2). ⁷

Urbina appealed the ALJ's award of benefits to ICAP arguing, inter alia, that the statutory formula applied by the ALJ to determine the benefits to be awarded for his partial injury denied him equal protection of the laws. His argument was based on the fact that his award of benefits would have been significantly higher ($9,344) had they been calculated based on the formula applicable to total injuries and that the distinction drawn by the Act between partial and total injuries was arbitrary,...