Petition for Writ of Certiorari — Aviado v. Industrial Claim Appeals Office

Supreme C

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Ne... 9-34 JUL § - 2010

~~ OFFICE OF THE CLERK

In The

Supreme Court of the United States

ROSARIO AVIADO,

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[ CULTLOTLE ‘ ~

INDUSTRIAL CLAIM APPEALS OFFICE, e? adZ.,

Respondents

‘climactic —

On Petition For A Writ For Certiorari

To The Colorado Court Of Appeals

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CHRIS FORSYTH RALPH OGDEN*

CHRIS FORSYTH LAW WILCOX & OGDEN, P.C.

OFFICE, LLC 1750 Gilpin Street

1675 Broadway, Suite 1400 Denver, Colorado

Denver, Colorado 80202 80218-1206

Phone: 303-892-3894 Phone: 303-399-5005

pqih : irisheorky@aol.com

‘Counsel of Record

Attorneys for Petitioner

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

:

When Colorado’s judicial branch politically

opposes a bill that would place the state’s workers’

compensation judges in the judicial branch, in

addition to other actions aimed at keeping workers’

compensation judges out of the judicial branch, and

then a case is heard in Colorado’s judicial branch

wherein a party alleges that the federal and state

constitutions require that the state’s workers’

compensation judges be in the judicial branch, is a

fair and impartial forum provided in Colorado’s

judicial branch as required by the due process clause

of the Fourteenth Amendment to the United States

Constitution?

»)

and «

Has Colorado, which follows federal law

regarding separation of powers, violated this Court’s

ruling in Northern Pipeline Construction Co. v.

Marathon Pipe Line Co., 458 U.S. 50 (1982) by ruling

that litigation regarding workplace injuries can take

place in the executive branch when Northern Pipeline

requires suits that existed at common law, such as

suits regarding workplace injuries, be heard in the

judicial branch?

QUESTIONS PRESENTED ~ Continued

aw

Is there a rational basis, for the purposes of an

equal protection analysis, for depriving workers’

compensation litigants of judicial branch judges when

all other injured parties and litigants in Colorado

have their cases heard in the judicial branch?

11]

PARTIES TO THE PROCEEDINGS

A list of all parties to the proceedings in the court

whose judgment is subject of the petition is as

follows:

Clairmant-Appellant and Petitioner: Rosario Aviado

Respondents-Appellees and Respondents: Industrial

Claim Appeals Office, Ensicon Corporation and Wasau

Insurance Corporation

TABLE OF CONTENTS

QUESTIONS PRESENTED

PARTIES TO THE PROCEEDINGS

TABLE OF CONTENTS

TABLE OF AUTHORITIES

PETITION FORA WRIT OF CERTIORARI

OPINIONS BELOW

JURISDICTION..

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

STATEMENT OF THE CASE

REASONS FOR GRANTING THE PETITION

A. ‘This case has not been heard by a fair

and impartial tribunal

8. Colorado relies on federal law regarding

separation of powers but issued = an

opinion contrary to the rulings of this

Court

C Aviado is not receiving equal protection

of the laws.

CONCLUSION.

APPENDIX

Colorado Court of Appeals’ Order dated April

L]

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TABLE OF CONTENTS — Continued

Page

Order of the Industrial Claim Appeals Office

EU FIRE, BG, BI vi vivcivecscsesccssssccescccavescrcsscdes &G

Full Findings of Fact, Conclusions of Law and

Order by the Office of Administrative Courts

Gated November 6, 2007 ......cccccsscessseseseessseess App. 33

Colorado Court of Appeals’ Order denying

Motion to Disqualify Judges dated February

LO, ZOOS ...scccccess renhindnanaeks taseseanassaserecasayeeeeete ae

Colorado Court of Appeals’ Order denying

reconsideration of Motion to Disqualify

Judges dated April 16, 2009 .......................... App. 70

Denial of Petition for Rehearing by the Colorado

Court cf Appeals dated May 14, 2009........... App. 72

Denial of Petition for Writ of Certiorari by

the Colorado Supreme Court dated April 5,

BE cidacavioces acethen see pentane uashuhsedaarideonevonierideintameeeenee

Colo. Rev. Stat. § 8-1-102 (2008) ....................... App. 74

Colo. Rev. Stat. § 8-40-1022 (2008) ................. ... App. 75

Colo. Rev. Stat. § 8-43-201 (2008) ..... savveteseneesene ee

Colo. Rev. Stat. § 8-43-301 (2008) ..................... App. 76

Colo. Rev. Stat. § 8-43-308 (2008) ..................... App. 82

Colo. Rev. Stat. § 8-47-101 (2008) ..................... App. 82

Colo. Rev. Stat. § 24-30-1001 (2008) ................. App. 85

Colo. Rev. Stat. § 24-30-1003 (2008) ...........0..... App. 87

Ce he, WR Bie Fe ice Sac ennevscsbinssocivenenrninrerhs App. 90

CGI TN OUR WE cede csictssccesarsnuivesssrvaspeprne App.

TABLE OF CONTENTS — Continued

Page

Colo. Const. art. VI, §9........ See ee

Colo. Const. art. VI, § 20............. sateen App. 91

| Ee App. 92

Fa SM TAG, MENOTN, FEV, © Y ciciecscsciccssscsnesccssosees App. 94

i ee OE DE cscs cag ensgiss dcannstiessvereseusencuaes ..... App. 94

Motion for Disqualification of Judges filed May

Want as Sickel ban seaisek sipenesdaenaues ectecsiaeas vas App. 96

TABLE OF AUTHORITIES

Page

CASE LAw

American Trucking Assoc., Inc. v. Smith, 496

ee, Sr ae Ir iss ca capes dwepastereubakedeenbesetaueandetncastoens 19

Bracy v. Gramley, 520 U.S. 899 (1997).................... 13

Caldwell v. Mississippi, 472 U.S. 320 (1985) ............ 17

Caperton v. A.T: Massey Coal Co., Inc., 556 U.S.

5 Ee ty Abs BE LENGE sxssersenacccceastiaxessesserne 11,13

Celebrity Custom Builders v. Industrial Claim

Appeals Office, 916 P.2d 539 (Colo. App.

I ities ulecace Liekaundesineienesdddant oben cxhaiauneutlsuadlanmenatwieasess 7

College Sav. Bank v. Flor. Prepaid Postsecondary

Ed. Expense Bd., 527 U.S. 666 (1999).................02. 28

Commodity Futures Trading Comm’n v. Schor,

re ee ee RE kava deine sceunconasacanseiesevs eee 26

Crowell v. Benson, 285 U.S. 22 (1932) ........0.0.... passim

Dee Enterprises v. ICAO, 89 P.3d 430 (Colo.

Se EIEN k cscs lice. tiani segs arevdsuveseuadumunseacaneadieres passim

Dewey v. Des Moines, 173 U.S. 193 (1899).................382

Fitzgerald v. Racing Ass’n of Central Iowa, 539

Ooooh cccdac dundveasunswasntaxonss 19, 20, 32

Florida v. Powell, ___ U.S. ___, 180 S. Ct. 1195

RE E RRELEPRR E a EO eons MODE MONE errr eee 17

Granfinanctera v. Nordberg, 492 U.S. 33 (1989)....... 29

Gubiensio-Ortiz v. Kanahele, 857 F.2d 1245

BR aR as ar RN Sera inion AR Ae ee SA RT DE 15

Vill

TABLE OF AUTHORITIES — Continued

Page

Holt Civic Club v. City of Tuscaloosa, 439 U.S.

ia eh ae Cues ocaekal eo eauavivesanesivediet 33

Huizar v. Allstate Ins. Co., 952 P.2d 342 (Colo.

In re Murchison, 349 U.S. 133 (1955)..................c2eee.

Johnson v. District Court In and For Jefferson

County, 674 P.2d 952 (Colo. 1984)

Kadrmas v. Dickinson Public Schools, 487 U.S.

(1 NERA AROS Rae AR Er asiatccoume

MGM Supply Co. v. Industrial Claim Appeals

Office, 62 P.3d 1001 (Colo. App. 2002)

Michigan v. Long, 463 U.S. 1032 (1983)...........0..02.... 19

Moore v. Roemer, 560 So.2d 927 (La.App. 1 Cir.

i990)

Northern Pipeline Construction Co. v. Marathon

Pipe Line Co., 458 U.S. 50 (1982) passim

People v. Hall, 107 P.3d 1073 (Colo. App. 2004) 16

People v. James, 117 P.3d 91 (Colo. App. 2004)

Premier Elec. Const. Co. v. Nat'l Elec. Contractor’s

Ass’n, Inc., 814 F.2d 358 (7th Cir. 1987)

Sigman v. Seafood Ltd. P’ship I, 817 P.2d 527

(Colo. 1991)

State of Wyomingv. Halstead, 795 P.2d 760

ee eels cincdsveciuiasseciaviniaessessssl &

Tassain v. People, 731 P.2d 672

(Colo. 1987) 12. 31, 33

1X

TABLE OF AUTHORITIES — Continued

Page

Thomas v. Union Carbide Agricultural Products

Co., 473 Ute, Beier Ree kun ersscsssccessccccccscccess 19, 24, 25

Three Affiliate Tribes v. World Engineering

PoC, , SE i Nay iitl aes ccsccsescsccccccsscsecsse: 10

Ulster County Court v. Allien, 442 U.S. 140

(O78) .cccsvnssecueeE Gr kiesessescsccncscsccccesscces 17

U.S. 0. ADGL, GO Vite ee ED cess vccecccvccscesccscccscccscess 16

STATUTES

Colo. Rev, Stat. 3 G-L-20Z (ZOGS) ..........ccsccscccccccccceees 4,6

Colo. Rev. Stat. § 8-40-102 (2008) .....................008. 4,12

Colo. Rev. Stat. § 8-43-201 (2008) ...................... passim

Colo. Rev. Stat. $ 8-43-301 (2008) .....................00..s008. 25

Colo. Rev. Stat. § 8-43-B3O7(Z) ...........ccccscecccesccescece 29, 30

Colo. Rev. Stat. § 8-43-308 (2008) .............................. 25

Colo. Rev. Gib. © tera mere Cat ccncscsccccccccccccccscscces 4,6

Colo. Rev. Stat. § 24-30-1001 (2008) .................. 4, 6, 33

Colo. Rev. Stat. § 24-30-1003 (2008) .................. 4 6,33

UNITED STATES CONSTITUTION

U.S. Comet. Gi meee aia csciccccsccscseceeecdd, BO, 29

U.S. Comsat. Gi@enth, FREY secccscscscccececces.:. 4, 13, 14, 17, $1

TABLE OF AUTHORITIES — Continued

COLORADO CONSTITUTION

Colo. Const. art. II, § 25............ a eens

CFO SII. BIG, Be icasivcescxcscocvcesxscessis rcuideoaveabesecuseuea ee

Cee ON WE hs se eacnesubeetesdacssaeeeaeee

Ee OO ee gsacvsaciavinecieaias 3, 20

Cee, Cee, Oe re ee, vs ccosacecenessbuasannsactwanadens 4.6

ee, ee ee cataclunawedaahis 4,6, 20

RULES

ee ee GP Ss ccunbcunsbaveusumeiceiasabeneen ao, 22

OTHER AUTHORITIES

Alabama Code of 1975 § 25-5-88......... Ses or

Tex. Lab. Code Ann. § 410.304...... a cee

PETITION FOR A WRIT OF CERTIORARI

Rosario Aviado respectfully petitions for a writ of

certiorari to review the published opinion of the

Colorado Court of Appeals which was denied

certiorari by the Colorado Supreme Court.

—_--- +

OPINIONS BELOW

The panel opinion of the Colorado Court of

Appeals is officially reported at 228 P.3d 177 (Colo.

App. 2009) and is reproduced at App. 1-15.

The order of the Industrial Claim Appeals Office

in W.C. 4-648-693 affirming the order of the Office of

Administrative Courts is reproduced at App. 16-32.

The order of the Office of Administrative Courts

in W.C. 4-648-693 is reproduced at App. 33-66.

The en banc opinion of the Colorado Supreme Court

denying certiorari is reproduced at App. 73.

Oe

JURISDICTION

The judgment of the Colorado Court of Appeals

sought to be reviewed was entered on April 16, 2009.

A petition for rehearing was denied on May 14, 2009.

The order denying certiorari by the Colorado

Supreme Court was entered on April 5, 2010. This

petition is timely under 28 U.S.C. § 2101 (c), 28 U.S.C.

§ 2104 and Supreme Court Rule 13.1 because it is

being filed within 90 days after the denial of

certiorari by the Colorado Supreme Court. This Court

has jurisdiction to review the state court judgment

from Colorado pursuant to 28 U.S.C. § 1257.

*

CONSTITUTIONAL AND

STATUTORY PROVISIONS INVOLVED

The relevant statutory provision at issue is Colo

Rev. Stat. § 8-43-201 (2008), which states as follows:

The director and administrative law judges

employed by the office of administrative

courts in the department of personnel shall

have original jurisdiction to hear and decide

all matters arising under articles 40 to 47 of

this title; except that the following principles

Shall apply: A claimant in = a_- workers’

compensation claim shall have the burden of

proving entitlement to benefits by a

preponderance of the evidence; the facts in a

workers’ compensation case shall not be

interpreted liberally in favor of either the

rights of the injured worker or the rights of

the employer; a workers’ compensation case

shall be decided on its merits; and a party

seeking to modify an issue determined by a

general or final admission, a summary order,

or a ful! order shall bear the burden of proof

for any such modification

Aviado alleges that the above statute violates the

separation of powers doctrine which has its basis in

Article III of the United States Constitution, which

provides:

The judicial Power of the United States,

shall be vested in one supreme Court, and in

such inferior Courts as the Congress may

from time to time ordain and establish. The

Judges, both of the supreme and inferior

Courts, shall hold their Offices during good

Behaviour, and shall, at stated Times,

receive for their Services, a Compensation,

which shall not be diminished during their

Continuance in Office.

Colorado follows federal law regarding the

separation of powers and also has its own

constitutional provision, Article III, setting forth the

separation of powers as follows:

The powers of the government of this

state are divided into three distinct depart-

ments, — the legislative, executive and ju-

dicial; and no person or collection of persons

charged with the exercise of powers properly

belonging to one of these departments shall

exercise any power properly belonging to

either of the others, except as in this con-

stitution expressly directed or permitted.

Another constitutional provision in Colorado that

is relevant is §9 of Article VI, which provides as

follows:

(1) The district courts shall be trial courts

of record with general jurisdiction, and shall

have original jurisdiction in all civil, probate,

and criminal cases, except as otherwise pro-

vided herein, and shall have such appellate

jurisdiction as may be prescribed by law.

Section 20 and § 25 of Article VI of the Colorado

Constitution are also relevant and the full text of

those provisions is in the appendix.

Due process and equal protection are also at

issue in this case. The relevant United States

Constitution provision is § 1 of Amendment Fourteen,

which provides as follows:

All persons born or naturalized in the United

States and subject to the jurisdiction thereof,

are citizens of the United States and of the

State wherein they reside. No State shall

make or enforce any law which shall abridge

the privileges or immunities of citizens of the

United States; nor shall any State deprive

any person of life, liberty, or property,

without due process of law; nor deny to any

person within its jurisdiction the equal

protection of the laws.

The relevant provision of the Colorado Consti-

tution is § 25 of Article II, which provides as follows:

No person shall be deprived of life, liberty or

property, without due process of law.

The following statutes from the Colorado Revised

Statutes are involved in this case and are fully set out

in the Appendix: Colo. Rev. Stat. §§ 8-1-102, 8-40-102,

8-47-101, 24-30-1001, and 24-30-1003 (2008).

o

STATEMENT OF THE CASE

This is a workers’ compensation case from the

state of Colorado. Rosario Aviado worked as an

assembler for Ensicon Corporation. She was diag-

nosed with work-related bilateral carpal tunnel syn-

drome. Ensicon and its insurance company, Wausau,

admitted the injury was work-related. Aviado re-

ceived medical and temporary wage loss benefits that

were paid by Wausau.

Due to concerns that surgery would not be

successful, Aviado declined surgery. Her physician

placed her medical condition at maximum medical

improvement. Her temporary wage loss benefits

ended and she was paid permanent partial disability

benefits in the amount of $5,020.33.

Due to the permanent work restrictions from the

injury, an expert determined that Aviado was unable

to earn a wage. Aviado applied for a_ hearing

regarding permanent total disability benefits. If she

succeeded in her claim for permanent total disability,

she would receive monetary benefits and medical care

for her injury for the remainder of her life absent a

change in her condition. The present value of the

lifetime monetary benefits is more than $150,000.00.

As required by Colorado law, Aviado’s application

for hearing for permanent total disability was filed

in the Office of Administrative Courts, which is in

the executive branch of Colorado’s government. Colo.

Rev. Stat. § 8-43-201 (2008). The Office of Adminis-

trative Courts is not in the Division of Workers’

6

Compensation, which is a separate executive branch

agency. Colo. Rev. Stat. § 8-47-101 (2008); Colo. Rev.

Stat. § 24-30-1001 (2008). Judges in the Office of

Administrative Courts are hired by the Executive

Director of the Department of Personnel. Colo. Rev.

Stat. § 24-30-1003 (2008). The judges are not subject

to the selection and retention provisions of the Colo-

rado Constitution to which judicial branch judges are

subject. Colo. Const. art. VI, §§ 20, 25. The judges in

the Office of Administrative Courts are subject to per-

formance reviews. Colo. Rev. Stat. § 24-30-1003(4)(a)

(2008).

The parties proceeded to hearing. Ensicon did not

plead the affirmative defense of unreasonable refusal

of medical treatment. No questions were asked at

hearing regarding the affirmative defense that was

not pled. Ensicon argued in a position statement after

the evidence had been submitted that Aviado had

unreasonably refused medical treatment. Aviado

objected. The administrative law judge (ALJ) issued

an order denying Aviado’s request for permanent

benefits. In doing so, the ALJ relied on the affir-

mative defense that was not pled by Ensicon.

Aviado appealed to the Industrial Claim Appeals

Office (ICAO). The ICAO is another executive branch

agency. Colo. Rev. Stat. § 8-1-102 (2008). Among other

things, Aviado argued the reliance on an affirmative

defense that was not timely pled was reversible error.

The ICAO ruled that the ALJ’s error was harmless

and affirmed the ruling. Aviado timely filed a notice

of appeal with the court of appeals.

At this point Aviado exited the executive branch

and entered the judicial branch. Aviado could now

raise constitutional issues because neither the ALJ

nor the ICAO has jurisdiction over constitutional

issues. Celebrity Custom Builders v. Industrial Claim

Appeals Office, 916 P.2d 539 (Colo. App. 1995).

Aviado challenged the jurisdiction of the

executive branch judges based on the separation of

powers doctrine and equal protection of the laws

citing the Colorado and United States Constitutions.

Aviado alleged that the constitutions required that

judicial branch judges must hear and determine

workers’ compensation cases. Aviado cited many

federal cases including Northern Pipeline Construction

Co. v. Marathon Pipe Line Co., 458 U.S. 50 (1982).

Colorado follows federal law regarding separation of

powers. Dee Enterprises v. ICAO, 89 P.3d 430 (Colo.

App. 2003). The federal question regarding separa-

tion of powers was timely raised at this point in the

proceedings.

The Colorado judicial branch, however, has a

history of political activism aimed at keeping workers’

compensation judges out of the judicial branch. The

following history was placed in an affidavit to the

court of appeals and accepted as true by the court of

appeals.

Legislative transcripts from 1996 document that

the judicial branch lobbied against having workers’

compensation judges in the judicial branch when a

bill before the legislature would have required such

8

judges to be placed in the judicial branch. The judicial

branch went on the record at a legislative committee

hearing stating, “we don’t want the work.” Although

the bill passed through the committee over the

objection of the judicial branch, the judicial branch

enticed the legislator proposing the bill to restructure

the bill so it would drive a fiscal note. The judicial

branch knew a fiscal note would kill the bill. The

judicial branch used an effective political strategy

that worked.

In 2001, a legislative task force convened to

address civil justice reform. The Director of the

Division of Administrative Hearings, which is now

called the Office of Administrative Courts, testified

that, “I know the judicial branch has been offered the

administrative hearings’ function a number of times

over the years and they’ve resisted that.”

Then a case went through the Colorado appellate

courts challenging the jurisdiction of executive

branch judges who hear workers’ compensation

matters. Dee Enterprises v. ICAO, 89 P.3d 430 (Colo.

App. 2003). The chief justice of the Colorado Supreme

Court selected the judges who heard the Dee

Enterprises case which is shown by the asterisks next

to the judges’ names in the published opinion. Jd.

The Dee Enterprises court ruled the grant of jur-

isdiction to executive branch judges to hear workers’

compensation claims was not unconstitutional. Dee

Enterprises v. ICAO, 89 P.3d 430 (Colo. App. 2003). In

doing so, the court relied on federal law, making the

9

issue a federal question. Jd. The Dee Enterprises court

ruled workers’ compensation proceedings involve

public rights. Jd. at 435-437. This ts directly contrary

to this Court’s holding that workers’ compensation

proceedings involve private rights. Crowell v. Benson,

285 U.S. 22, 51 (1932). Because workers could sue

employers for injuries at common law, the Dee

Enterprises opinion is directly contrary to this Court’s

holding that actions available at common law must be

tried in the judicial branch. Northern Pipeline

Construction Co. v. Marathon Pipe Line Co., 458 U.S.

50 (1982).

The above-related facts, among others, were set

forth in a motion for disqualification of judges that

was filed in this case at the court of appeals. App. 96-

114. Aviado requested that the court acknowledge the

facts showing the partiality of the judicial branch and

invoke the rule of necessity to hear the case. Aviado

moved for the disqualification based on Canon 3 of

the Colorado Code of Judicial] Conduct and Rule 97 of

the Colorado Rules of Civil Procedure. The court of

appeals accepted the facts put forth as true, yet

denied the motion stating:

The fact, if it is one, that the judicial branch

has opposed the transfer of Administrative

Law Judges into the judiciary is not a basis

to conclude that the judges of this court,

including the division now assigned to the

case, cannot be impartial.

App. 67.

10

Aviado filed a motion for reconsideration to which

the court responded:

Claimant asserts the court did not employ

the appropriate standard in denying the

motion for disqualification. The court

disagrees. The statement in the previous

order that “The fact, if it is one” was meant

to convey that the court accepted that the

asserted fact was true. Even assuming that

fact to be true, the court perceived and

continues to perceive no appearance of

impropriety that would require disqualli-

fication.

App. 70.

The court of appeals then issued a published

opinion wherein it did not mention the motion

regarding judicial bias or that it had denied such

motion. App. 1-15. The court of appeals ruled that the

Dee Enterprises opinion was persuasive and did not

directly confront Aviado’s arguments regarding the

errors in the Dee Enterprises opinion. App. 9-10.

Because the court below relied on the Dee Enterprises

opinion which includes an in-depth analysis of federal

law and a reliance on such law, there is a federal

question in this case. Three Affiliate Tribes v. World

Engineering P.C., 467 U.S. 138 (1984). The court of

appeals failed to rule on the equal protection argu-

ment that was raised.

Aviado filed a petition for rehearing. The petition

included the equal protection argument that the court

had failed to rule on and cited the United States

1]

Constitution to support the equal protection claim.

The petition argued that it was error for the court not

to address the recusal issue or the alleged errors in

the Dee Enterprises opinion in the published opinion.

The petition for rehearing was denied.

Aviado filed a petition for certiorari with the

Colorado Supreme Court. The petition stated that the

motion for disqualification applied to the supreme

court and the motion was attached to the petition. A

federal basis for the motion for disqualification was

not cited, however, until the reply regarding the

petition was filed. In the reply a due process violation

of the United States Constitution was alleged along

with a citation to this Court’s opinion in Caperton v.

A.T: Massey Coal Co., Inc., 556 U.S. __, 129 S. Ct.

2252 (2009).

It is the law in Colorado that a judge must rule

on a recusal motion before ruling on anything else.

Colo. R. Civ. Pro. Rule 97; Jehnson v. District Court

In and For Jefferson County, 674 P.2d 952, 955 (Colo.

1984). Nevertheless, without ruling on the motion for

disqualification, the Colorado Supreme Court denied

certiorari.

REASONS FOR GRANTING THE PETITION

This Court has not issued an opinion regarding

the effect of a judicial branch entering the political

arena in an attempt to evade duties that are histor-

ically and constitutionally delegated to such branch.

12

Does the political agenda of Colorado’s judicial branch

create a constitutionally intolerable probability of

actual bias in violation of the Fourteenth Amendment

of the United States Constitution when a party

argues before the branch that it is constitutionally

required to do what it has lobbied against? Does the

fact that the judges in this case issued a published

opinion without disclosing the motion for disqualifica-

tion or any of the facts supporting it affect the

decision regarding bias? This Court needs to address

what happens to fairness and impartiality when a

judicial branch takes a political turn. This is an

important federal question.

Colorado adheres to federal law regarding sepa-

ration of powers. Dee Enterprises v. ICAO, 89 P.3d

430, 435-438 (Colo. App. 2003). An employee could

sue an employer at common law for a work injury.

Colo. Rev. Stat. § 8-40-102 (2008). Therefore, Aviado

is entitled to a judicial branch judge in her workers’

compensation case. Northern Pipeline Construction

Co. v. Marathon Pipe Line Co., 458 U.S. 50 (1982). By

forcing workers’ compensation litigants to have their

cases heard in the executive branch, Colorado’s

judicial branch has violated the separation of powers

doctrine. This is an important federal question.

A judicial branch’s lack of desire for work should

not trump constitutional rights. There is no rational

basis for overcoming an equal protection challenge in

this matter. Colorado follows federal law regarding

equal protection. Tassian v. People, 731 P.2d 672, 674

(Colo.1987). This is an important federal question.

13

This Court should hear this case to ensure a fair and

impartial decision is rendered and to ensure that

federal] law has been correctly followed.

A. This case has not been heard by a fair and

impartial tribunal.

The Due Process Clause in the Fourteenth

Amendment to the United States Constitution guar-

antees a fair and impartial tribunal. /n re Murchison,

349 U.S. 133, 186 (1955); Bracy v. Gramley, 520 U.S.

899, 904-05 (1997). Objective standards must be used

regarding the recusal. Caperton v. A.T:! Massey, 556

U.S. __, 129 S. Ct. 2232, 2263 (2009). The question

to be answered is whether there is a constitutionally

intolerable probability of actual bias. /d.

The following facts, among others, were accepted

to be true by the Colorado Court of Appeals in this

matter: The Colorado judicial branch 1) publicly op

posed a bill that would have placed workers’ compen-

sation judges in the judicial branch, 2) convinced the

sponsor of the bill to change it so it required a fiscal

note which killed the bill in the appropriations com-

mittee, 3) resisted other attempts at putting workers’

compensation judges in the judicial branch, and

4) selected a panel of judges who heard the issues in a

previous case. Although the court of appeals accepted

these facts as true, the court denied a motion for

disqualification and issued a published opinion with-

out revealing in the opinion that any such motion was

ever made. These are not the actions of the fair and

14

impartial forum that is required by the due process

clause of the Fourteenth Amendment to the United

States Constitution.

The actions of the Colorado judicial branch lead

to a conclusion that there is a_ constitutionally

intolerable probability of actual bias in the Colorado

judicial branch and the opinion below must be

reversed.

“|PJublic confidence in the judiciary is indis-

pensable to the operation of the rule of law;

yet this quality is placed in risk whenever

judges step outside the courtroom into the

vortex of political activity. ...

Concern with the entanglement of the judi-

cial and executive power of the United States

is no passing phenomenon: The Framers

themselves feared consolidation of such au-

thority in the hands of individuals. Madison,

quoting Montesquieu, warned that “‘were

the power of judging joined with the legis-

lative, the life and liberty of the subject

would be exposed to arbitrary control, for the

judge would then be the legislator. Were it

joined to the executive power, the judge

might behave with all the violence of an

oppressor.” The Federalist No. 47, at 303

(Mentor ed. 1961) (emphasis original). Ham-

ilton reiterated that “liberty ... would have

everything to fear from [the judiciary’s]

union with either of the other departments.”

The Federalist No. 78, at 466; see Note,

Constitutional Infirmities, 96 Yale L.J. at

1383-84.

L5

The aura of judicial impartiality must be

conserved for the judiciary’s core function,

the resolution of cases or controversies.

Because “confidence in the disinterestedness

of [its] judicatory functions” is central to the

judiciary’s effectiveness, judges must remain

free of external influences and thereby be

allowed to act and be perceived as acting in a

neutral and impartial manner. Frankfurter,

Advisory Opinions, in 1 Encyclopedia of the

Social Sciences 475, 478 (1930). For this

reason, political involvement by judges is

severely limited.

Gubiensto-Ortiz v. Kanahele. 857 F.2d 1245. 1262

1263 (9th Cir. 1988).

The judicial branch is intended to implement the

policies that the political branches create. Premier

KHlec. Const. Co. v. Nat'l klec. Contractor’s Ass’n, Ine

814 F.2d 358, 375 (7th Cir. 1987). The judicial branch

is not to be a political entity but is to refrain from

political activity so it can be perceived as fair and

impartial. /d.; Gubiensio, supra

The phrase used by Colorado’s judicial branch in

the legislative committee hearing where a bill would

have required workers’ compensation judges to be in

the judicial branch was, “WE don’t WANT the work.”

(emphasis added). This is a statement of desire; not a

statement of a properly thought out legal conclusion.

The other statement in a legislative hearing was, “1

know the JUDICIAL BRANCH has been offered the

administrative hearings’ function a number of times

16

over the years and THEY'VE RESISTED that

(emphasis added). The statement shows again that

the judicial branch is acting as an organization that

is resisting having workers’ compensation judge:

being placed in the judicial branch. This case is

different from other cases that have previously come

before this Court because this case involves a judicial

branch’s improper desire. In other words, this case

involves the Colorado judicial branch’s publicly stated

partiality toward keeping workers’ compensation

judges out of the judicial branch

The judges in this case did not perceive an

appearance of impropricty in the fact that they were

members of the Colorado judicial branch, which is the

organization that had lobbied against having workers’

compensition judges in the judicial branch. App. 70

Evidence of membership in an organization, however,

is relevant on the issue of bias. Mere evidence of

membership in an organization, even without proof

that the person has adopted the organization’s tenets,

is probative of bias. U.S. v. Abel, 469 U.S. 45 (1984)

(evidence of membership in prison gang probative of

witness’ bias toward defendant). The state of Colo

rado agrees the membership in an organization ts

probative of bias. People v. James, 117 P.3d 91, 94

(Colo. App. 2004) (evidence regarding gang affil

lations admissible to show motive); People v. Hall,

107 P.3d 1073, 1077 (Colo. App. 2004) (citing U.S. vo

Abel, 469 U.S. 45 (1984)). Therefore, membership in

the judicial branch is probative of bias in this in

stance because the judicial branch lobbied as an

organization against workers’ compensation judges

being in the judicial branch.

The bias issue is a federal question. The court

below did not rely on an independent state ground for

its failure to recuse. It ruled that there was not an

appearance of impropriety, which is simply a more

stringent standard than is required by the federal

constitution as opposed to a completely independent

standard. The merits of a federal question have been

reached in this case because a fair and impartial tri-

bunal is constitutionally required. See Ulster County

Court v. Allen, 442 U.S. 140, 154 (1979) Gf state court

does not indicate state bar to federal constitutional

claim, then this Court does not disrespect the state by

entertaining the claim); Caldwell v. Mississippi, 472

U.S. 320, 327 (1985) (Supreme Court will not assume

state court decision rests on adequate and _ inde-

pendent state grounds); Florida v. Powell, __ U.S.

__, 180 S.Ct. 1195 (2010) (because state court

opinion did not indicate clearly and expressly that it

was alternatively based on bona fide separate,

adequate and independent state grounds, Supreme

Court has jurisdiction). Furthermore, the motion for

disqualification of judges was also addressed to the

Colorado Supreme Court with the citation to the

Fourteenth Amendment to the United States Con-

stitution in the argument. The Colorado Supreme

Court’s improper failure to rule on the motion should

not prohibit a federal question in this matter.

There is a constitutionally intolerable probability

of actual bias in the opinion below. If a handgun ban

18

was at issue and the tribunal hearing the issue was

the National Rifle Association, there would be a

constitutionally intolerable probability of actual bias

because the organization hearing the matter favors

guns. If segregation was at issue and the tribunal

hearing the issue was the Ku Klux Klan, there would

be a constitutionally intolerable probability of actual

bias because the organization hearing the matter

favors white supremacy. Likewise, there is a

constitutionally intolerable probability of actual bias

in this case because the judges below are part of the

organization that has publicly resisted workers’

compensation judges being placed in the _ judicial

branch. Furthermore, the judges below did not take

actions to distance themselves from the actions of the

judicial branch or take any steps to try to reduce the

appearance of impropriety. The judges below issued a

published opinion that makes it look like the motion

was never made. Furthermore, the published opinion

does not even address all of the arguments that were

made by Aviado.

This Court should vacate the result below and

hear this case on the constitutional issues that have

been presented. Even if this Court does not choose to

hear the disqualification issue, the separation of

powers issue in this matter is an independent federal

question that should be heard by this Court.

19

B. Colorado relies on federal law regarding

separation of powers but issued an opinion

contrary to the rulings of this Court.

Colorado relies on federal law regarding separa-

tion of powers. Dee Enterprises v. ICAO, 89 P.3d 430,

435-437 (Colo. App. 2003). Colorado’s reliance on fed-

eral law regarding separation of powers is sufficient

to support jurisdiction of this Court. Fitzgerald uv.

Racing Ass’n of Central Towa, 539 U.S. 103, 106

(2003). Colorado ruled that this Court’s decision in

Thomas v. Union Carbide Agricultural Products Co.,

473 U.S. 568 (1985) compelled its result in the Dee

Enterprises case regarding separation of powers. Dee

Enterprises, 89 P.3d at 436-437. Because a federal

case is compelling the result of the state court, this

Court has jurisdiction. Michigan v. Long, 463 U.S.

1032, 1044 (1983). Whether a state court correctly

applies opinions of this Court is a federal question.

American Trucking Assoc., Inc. v. Smith, 496 U.S.

167, 177 (1990). Therefore, the separation of powers

issue in this case is a federal question and this Court

has jurisdiction to hear the issue.

Workers’ compensation proceedings involve private

rights. Crowell v. Benson, 285 U.S. 22, 51 (1932). In

direct contradiction to this Court, Colorado has ruled

that workers’ compensation matters regard public

rights. Dee Enterprises, 89 P.3d at 436-437. Suits that

arose at common law regarding private mghts must

be heard before a judicial branch judge. Northern

Pipeline Construction Co. v. Marathon Pipe Line Co.,

458 U.S. 50 (1982). In direct contradiction to this

20

Court, Colorado has determined that workers’ com-

pensation proceedings, which arose at common law

and regard private rights, may be adjudicated by

executive branch judges who are not subject to de

novo review. Dee Enterprises, 89 P.3d at 437. This

Court needs to correct Colorado’s erroneous inter-

pretation of federal law.

A state may distribute its powers as it desires.

Crowell, 285 U.S. at 295. Article III of the United

States Constitution and Article III of the Colorado

Constitution are similar and Colorado relies on

federal law fer a resolution of separation of powers

issues. Dee Enterprises, 89 P.3d at 435. The similarity

of the constitutional provisions plus the reliance by

the state on federal law interpreting the provisions

means a federal question is at issue. Fitzgerald v.

Racing Ass’n of Central Iowa, 539 U.S. 103, 106

(2003) (Supreme Court had jurisdiction where state

court noted similarity of equal protection and relied

on federal law in interpreting equal protection).

It should be noted, however, that the Colorado

Constitution addresses the separation of powers in

two separate provisions. Article III of the Colorado

Constitution provides that there are three distinct

departments and no powers belonging to one can be

exercised by either of the others except when the

constitution expressly directs or permits. Colo. Const.

art. III. Section 9 of Article VI provides that the

district court shall be the trial court with general

jurisdiction over all civil cases except as otherwise

provided in the constitution. Colo. Const. art. VI,

21]

§ 25. Both provisions provide that any exception to

the separation of powers needs to be in the constitu-

tion. Nowhere in the Colorado Constitution is there a

provision allowing workers’ compensation proceedings

to be heard in the executive branch. Nevertheless, the

Colorado judicial branch has determined that an

analysis of federal law allows for workers’ compensa-

tion proceedings to be heard in the executive branch.

Dee Enterprises, 89 P.3d at 435-438. The analysis,

however, is flawed.

The analysis begins with Crowell v. Benson, 285

U.S. 22 (1932). Crowell involved a workers’ compen-

sation proceeding in maritime jurisdiction. An executive

branch agency determined a worker, Knudsen, was in

the employ of Benson at the time of an injury.

Crowell, 285 U.S. at 37. Using the procedure provided

in the Longshoremen’s and Harbor Workers’ Compen-

sation Act, Benson sought an injunction in federal

district court. The district court held a trial de novo

and determined Knudsen was not in the employ of

Benson at the time of the injury. Crowell, 285 U.S. at

37.

The Crowell Court determined that workers’

compensation proceedings involved private rights as

opposed to public rights. Crowell, 285 U.S. at 51. The

Crowell Court determined that the judge did not err

in permitting a trial de novo on the issue of employ-

ment. Crowell, 285 U.S. at 65. Specifically, the Court

stated:

‘ye

a a

We think that the essential independence of

the exercise of the judicial power of the

United States, in the enforcement of consti-

tutional rights requires that the federal

court should determine such an issue upon

its own record and the facts elicited before it.

Crowell, 285 U.S. at 64.

The public vs. private right distinction was again

addressed in Northern Pipeline Construction Co. v.

Marathon Pipe Line Co., 458 U.S. 50 (1982). The

Northern Pipeline Court determined that executive

branch bankruptcy judges violated Article III because

the jurisdiction of the judges extended to private

rights suits that existed at common law that were

included as part of the bankruptcy act. Northern

Pipeline, 458 U.S. at 84. The Court held that Congress

cannot withdraw any matter from judicial branch

judges if that matter from its nature is subject of a

suit at common law. Northern Pipeline, 458 U.S. at

67. The Court stated:

The distinction between public rights and

private rights has not been definitively

explained in our precedents.” Nor is it

necessary to do so in the present cases, for it

suffices to observe that a matter of public

rights must, at a minimum, arise “between

the government and others.” Ex parte

Bakelite Corp., supra, at 451." In contrast,

“the liability of one individual to another

under the law as defined,” Crowell v. Benson,

supra, at 51, is a matter of private rights.

Our precedents clearly establish that only

23

controversies in the former category may be

removed from Art. III courts and delegated to

legislative courts or administrative agencies

for their determination. See Atlas Roofing

Co. v. Occupational Safety and Health Review

Comm’n, 4380 U.S. 442, 450, n.7 (1977);

Crowell v. Benson, supra, at 501. See also

Katz, Federal Legislative Courts, 43

Harv.L.Rev. 894, 917-918 (1930).'" Private

rights disputes, on the other hand, lie at the

core of the historically recognized judicial

power.

Northern Pipeline, 458 U.S. at 69-70 (footnotes

omitted).

It was argued that Crowell stood for the

proposition that U.S. Const. Article III was satisfied as

long as some degree of appellate review was provided.

The Northern Pipeline Court did not agree. The Court

stated:

Our precedents make it clear that the

constitutional requirements for the exercise

of the judicial power must be met at all

stages of adjudication, and not only on

appeal, where the court is restricted to

considerations of law, as well as the nature of

the case as it has been shaped at the trial

level. The Court responded to a similar

suggestion in Crowell by stating that to

accept such a regime, “would be to sap the

judicial power as it exists under the Federal

Constitution, and to establish a government

of bureaucratic character alien to our system,

wherever fundamental rights depend, as not

24

infrequently they do depend, upon the facts,

and finality as to facts becomes in effect

finality in law.”

Northern Pipeline, 458 U.S. at n. 39 (citation omitted).

The definitions of public rights and private rights

was revised somewhat a few years after Northern

Pipeline. This Court addressed a statutory scheme

under the Environmental Protection Agency in 1985

that allowed litigation in the executive’ branch.

Thomas v. Union Carbide Agricultural Products Co.,

473 U.S. 568 (1985). Because the statutory scheme

did not replace rights that were available at common

law, the Court held the Northern Pipeline case was

not applicable. Thomas held that non Article III

adjudication was appropriate because a public right

that was statutorily created was at issue even though

the statutory right was created between two parties.

Id.

Colorado determined that the Thomas case was

persuasive regarding workers’ compensation actions

being public as opposed to private rights. Dee

Enterprises, 89 P.3d at 437. Thomas did not overrule

Crowell, however, and in fact the Thomas Court

maintained the holding in Crowell regarding workers’

compensation proceedings, but ditferentiated Crowell

from the facts at issue in Thomas.

In assessing the degree of judicial involve-

ment required by Article III in this case, we

note that the statute considered in Crowell is

different from FIFRA in significant respects.

29

Most importantly, the statute in Crowell

displaced a traditional cause of action and

affected a pre-existing relationship based on

a common-law contract for hire. Thus it

clearly fell within the range of matters

reserved to Article III courts under the

holding of Northern Pipeline.

Thomas, 473 U.S. at 587. Therefore, Thomas ex-

pressly did not overturn the holding in Crowell that

workers’ compensation matters involved private

rights. The contention in the Dee Enterprises case

that workers’ compensation matters involve public

rights is clearly erroneous. Dee Enterprises, 89 P.3d at

437.

Based on the erroneous conclusion that workers’

compensation matters involve public rights, Dee

Enterprises determined that de novo review by a

judicial branch judge was no longer required. Jd. This

is clearly erroneous because workers’ compensation

involves private rights. Crowell, 285 U.S. at 51.

Workers’ compensation judges are not subject to de

novo review in Colorado. Colo. Rev. Stat. §§ 8-43-301,

8-43-308 (2008). Workers’ compensation judges in

Colorado are subject to performance reviews in the

executive branch. Colo. Rev. Stat. § 24-30-1003(4)

(2008). Workers’ compensation litigants in Colorado

are entitled to have a judicial branch judge determine

their cases. Northern Pipeline, supra; Crowell, supra.

Furthermore, it must be noted that a citation by

the Dee Enterprises court regarding de novo review is

not accurate. On page 437 of the Dee Enterprises case,

26

the court cites the following: “cf Huizar v. Allstate

Ins. Co., 952 P.2d 342 (Colo. 1998) (de novo review of

workers’ compensation claims not required).” Dee

Enterprises, 89 P.3d at 437. The Huizar case, how-

ever, is not a workers’ compensation case. The Huizar

case regards a trial de novo clause in an uninsured

motorist provision of an automobile insurance policy.

The case has nothing to do with workers’ compen-

sation. Huizar v. Allstate Ins. Co., 952 P.2d 342 (Colo.

1998).

In 1986, this Court addressed the issue of

availability of a procedure without an Article III

judge. Commodity Futures Trading Comm’n v. Schor,

478 U.S. 833 (1986). The Schor case involves

reparations proceedings that injured persons may

take part in if they were injured by a commodity

broker’s violation of the Commodity Exchange Act.

The proceedings were voluntary and not required.

The Schor Court held that by electing to proceed

before the commission that the parties willingly

submitted limited jurisdiction of state law claims as a

necessary incident to the adjudication of federal

claims. Id. It is key to the Schor Court’s analysis that

the parties were not forced into the procedure. /d.

There is no such election in workers’ compensation

proceedings in Colorado as the parties are forced to

have their cases heard in the executive branch. Colo.

Rev. Stat. § 8-43-201 (2008).

Colorado has held that workers’ compensation

litigants have waived their right to a judicial branch

judge because the Workers’ Compensation Act states

27

that the parties have expressly surrendered their

common law rights. MGM Supply Co. v. Industrial

Claim Appeals Office, 62 P.3d 1001 (Colo. App. 2002);

Dee Enterprises, 89 P.3d at 439. It is erroneous to

conclude that Aviado waived her right to a judicial

branch judge. This Court envisioned a scenario such

as the one presented here. In a case regarding

sovereign immunity, Justice Scalia, who wrote the

opinion for the Court, stated the following:

Indeed, Parden-style waivers are simply

unheard of in the context of other con-

stitutionally protected privileges. As we said

in Edelman, “(clonstructive consent is not a

doctrine commonly associated with the

surrender of constitutional rights.” 415 U. S.,

at 673. For example, imagine if Congress

amended the securities laws to provide with

unmistakable clarity that anyone committing

fraud in connection with the buying or selling

of securities in interstate commerce would not

be entitled to a jury in any federal criminal

prosecution of such fraud. Would persons en-

gaging in securities fraud after the adoption

of such an amendment be deemed to have

“constructively waived” their constitutionally

protected rights to trial by jury in criminal

cases? After all, the trading of securities is

not so vital an activity that any one person’s

decision to trade cannot be regarded as a

voluntary choice. The answer, of course, is no.

The classic description of an effective waiver

of a constitutional right is the “intentional

relinqguishment or abandonment of a known

right or privilege.” Johnson v. Zerbst, 304

28

U.S. 458, 464 (1938). “|Clourts indulge every

reasonable presumption against waiver” of

fundamental constitutional rights. Aetna Jns.

Co. v. Kennedy ex rel. Bogash, 301 U. S. 389,

393 (1937). See also Ohio Bell Telephone Co.

v. Public Util. Comm’n of Ohio, 301 U.S. 292,

307 (1937) (we “do not presume acquiescence

in the loss of fundamental rights”). State sov-

ereign immunity, no less than the right to

trial by jury in criminal cases, is constitu

tionally protected. Great Northern supra at

51; Pennhurst, 465 U. S., at 98. And in the

context of federal sovereign immunity

obviously the closest analogy to the present

case — it is well established that waivers are

not implied. See, e.g., United States v. King,

395 U.S. 1, 4 (1969) (describing the “settled

propositio[n]” that the United States waiver

of sovereign immunity “cannot be implied

but must be unequivocally expressed”). We

see no reason why the rule should be

different with respect to state sovereign

immunity.

College Sav. Bank v. Flor. Prepaid Postsecondary Ed.

Expense Bd., 527 U.S. 666, 681-682 (1999). Aviado

has never expressly waived anything. Aviado’s right

to a district court trial at common law is equivalent to

a criminal defendant’s right to a jury trial. Aviado’s

action at common law would have been a civil action.

The legislature cannot take away the right to appear

in district court that existed at common law by

relabeling the action and placing exclusive juris-

diction of the action in an administrative agency. See

2Y

Granfinanciera v. Nordberg, 492 U.S. 33 (1989)

(“Congress cannot eliminate a_e party's Seventh

Amendment right to a jury trial merely by relabeling

the cause of action to which it attaches and placing

exclusive jurisdiction in an administrative agency or

a specialized court of equity.” p. 61). Colo. Rev. Stat

§ 8-43-2011 is unconstitutional because it eliminates

Aviado’s constitutional right to a tmal in district

court.

Hlow workers’ compensation cases are heard

varies from state to state. In 1990 a case was heard in

Louisiana where a challenge was made to an

executive branch agency that was to determine such

cases. Moore v. Roemer, 560 So.2d 927 (La.App. 1 Cir.

1990). The court determined that workers’ compen

sation matters were civil in nature and therefore had

to be heard in the district court. /d. A similar

challenge was made in Colorado, but the Colorado

Court of Appeals determined that workers’ compen-

sation cases are not civil matters under the Colorado

constitution. MGM Supply Co. v. Industrial Claim

Appeals Office, 62 P.3d 1001 (Colo. App. 2002). The

matter was addressed in the Dee Enterprises case as

well. The Dee Enterprises court stated that it was not

aware of any intent by the General Assembly to

regard workers’ compensation matters as civil

proceedings. Dee Enterprises, 89 P.3d at 439. The

statutory language in Colorado, however, is very

similar to the statutory language in Louisiana that

convinced the Louisiana court that workers’ compen

sation is a civil matter. Colo. Rev. Stat. § 8-43-307(2)

is part of the enabling statute allowing the court of

the appeals to hear workers’ compensation appeal

The statute states that, “such actions shall be tried

and determined by the court of appeals in the manner

provided for other civil actions.” Colo. Rev. Stat. § &

43-307(2). Louisiana interpreted “other civil” matter:

to mean workers’ compensation was a civil matter

Moore v. Roemer, 560 So.2d 927 (La.App. 1 Cir. 1990)

Therefore, Colorado has almost the identical situation

as Louisiana yet the two tates determined § the

matter differently

Alabama recognizes that workers’ compensation

cases are filed, “in the circuit court of the county

which would have jurisdiction of an action between

the same parties arising out of tort.” Alabama Code of

1975 § 25-5-88. And some states have jury trials. Se

Tex. Lab. Code Ann. § 410.304. In Wyoming, worker:

compensation is determined in the executive branch,

but a judge wrote a concurring opinion that ad

dressed separation of powers and subsidiary fun

tions of an apency

In this instance, if the hearing examiner }

part of the Workers’ Compensation Division,

as the agency, she 1s acting incidental a

subsidiary to the function of the agency

(making her recommendations to the agency

for agency action as required by W.S. 16-3

112), and the separation of powers provision

of the constitution is not violated. However

if the office of hearing examiner is) an

“agency within itself, then, since its only

function is judicial, and with the hearing

31

examiner’s action not being incidental or

subsidiary to any other function of the

agency, 1.e., the hearing examiner, a violation

of the separation of powers provision of the

constitution would result.

State of Wyoming v. Halstead, 795 P.2d 760, 770-771

(Wyo. 1990) (Justice Rooney specially concurring in

part and dissenting in part).

The scenario addressed by Justice Rooney in

Wyoming is the current status in Colorado. The Office

of Administrative Courts is an agency with solely a

judicial function. As Justice Rooney stated, the result

is a violation of the separation of powers.

C. Aviado is not receiving equal protection of

the laws.

Pursuant to the Fourteenth Amendment of the

United States Constitution, no state may deny any

person the equal protection of the laws. Article II,

Section 25 of the Colorado Constitution also guaran-

tees the right to equal protection. Sigman v. Seafood

Ltd. P’ship I, 817 P.2d 527, 532 (Colo. 1991). Equal

protection guarantees assure that people who are

similarly situated will receive similar treatment

under the law. Jd. Colorado follows the United States

Supreme Court in construing equal protection under

the Colorado Constitution. Tassian v. People, 731 P.2d

672, 674 (Colo. 1987). The similarity of the consti-

tutional provisions plus the reliance by the state on

federal law interpreting the provisions means a

32

federal question is at issue. Fitzgerald v. Racing Ass’n

of Central Iowa, 539 U.S. 103, 106 (2003) (Supreme

Court had jurisdiction where state court noted

similarity of equal protection and relied on federal

law in interpreting equal protection).

An equal protection challenge was raised below

but the court of appeals failed to rule on the

argument. The argument was also made to the

supreme court which denied certiorari. Because the

argument was made, the court’s failure to rule on the

argument below does not deprive this Court of

jurisdiction. Dewey v. Des Moines, 173 U.S. 193, 200

(1899) (if the court below did not in terms deny such

argument, if the necessary effect of its judgment was

to deny it, then it would be enough to provide

jurisdiction).

Colo. Rev. Stat. § 8-43-201 violates equal protection

of the laws because it provides the executive branch the

authority to determine workers’ compensation matters.

All other litigants and injured people in Colorado

have their claims determined in the judicial branch

where the judges are subject to the selection and

retention provisions in Article VI of the Colorado

Constitution. Workers’ compensation litigants are

similarly situated to these other litigants. Colo. Rev.

Stat. § 8-43-201 discriminates against workers’ com-

pensation litigants by denying them judges subject to

the selection and retention provisions. Judges who

hear workers’ compensation cases are hired by the

Director of the Department of Personnel and are

33

subject to performance reviews in the executive

branch. Colo. Rev. Stat. § 24-30-1003 (2008).

No argument is made for a heightened standard

under equal protection. Therefore, the test is whether

there is a rational basis for the statute at issue.

Kadrmas v. Dickinson Public Schools, 487 U.S. 450,

457-458 (1988); Tassain, 731 P.2d at 675.

The Fourteenth Amendment does not pro-

hibit legislation merely because it is special,

or limited in its application to a particular

geographical or political subdivision of the

state. Rather, the Equal Protection Clause is

offended only if the statute’s classification

“rests on grounds wholly irrelevant to the

achievement of the State’s objective.”

Holt Civie Club v. City of Tuscaloosa, 439 U.S. 60, 70-

71 (1978) (citations omitted). Administrative con-

venience is not a legitimate governmental purpose.

See Tassian, 731 P.2d at 676.

The Office of Administrative Courts is a separate

agency from the Division of Workers’ Compensation

in Colorado’s executive branch. Colo. Rev. Stat. §§ 8-

43-201, 24-30-1001 (2008). The judges in the Office of

Administrative Courts work solely as judges. There is

no rational basis for this court to be in the executive

branch as opposed to the judicial branch. If the

objective of the court is to provide the quick and

efficient delivery of benefits, then the placement of

the court in the executive branch is wholly irrelevant

to the achievement of the state’s objective. See Holt

Civic Club, 439 U.

S. at 70-71. If the court were in the

judicial branch it

would operate as quickly and

effectively as it does in the executive branch.

Colorado’s placement of the Office of Admin-

istrative Courts in the executive branch violates

workers’ compensation litigants’ mght to equal

protection of the laws.

CONCLUSION

For all the reasons set forth above, the petition

for a writ of certiorari should be granted.

Respectfully submitted,

CHRIS FORSYTH RALPH OGDEN*

CHRIS FORSYTH LAW WILCOX & OGDEN, P.C.

OFFICE, LLC 1750 Gilpin Street

1675 Broadway, Suite 1400 Denver, Colorado

Denver, Colorado 80202 80218-1206

Phone: 303-892-3894 Phone: 303-399-5005

sel of Record irishcorky@aol.com

, oc

Attorneys for Petitioner

App. l

COLORADO COURT OF APPEALS

Court of Appeals No.: O8CA0923

Industrial Claim Appeals Office of the

State of Colorado

WC No.: 4-685-483

Rosario Aviado,

Petitioner,

v.

Industrial Claim Appeals Office of the

State of Colorado, Ensicon Corporation,

and Wausau Insurance Corporation,

Respondents.

ORDER AFFIRMED

Division II

Opinion by: JUDGE CASEBOLT

Roy and Connelly, JJ., concur

Announced: April 16, 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 Corpora-

tion and Wausau Insurance Corporation

App. 2

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 impair-

ment did not extend beyond her extremities and rated

the right arm at seven percent impairment and the

left arm at four percent impairment. Ensicon Corpor-

ation and its insurer, Wausau Insurance Corporation

(collectively employer), filed a final admission of lia-

bility (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 claim-

ant 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.

Il. Surgery Refusal

Claimant first contends that the ALJ erred by

denying PTD benefits based on her refusal to undergo

App. 3

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 medi-

cal 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 deter-

mining PTD, and recognized the necessity of con-

sidering 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 sed-

entary category that are reasonably available and

require no significant accommodation, and the medi-

cal and vocational evidence, albeit conflicting, sub-

stantially supports the ALJ’s finding. Thus, the

findings and conclusions regarding claimant’s refusal

to undergo surgery were neither essential nor inte-

gral to the ALJ’s finding that she did not carry her

burden of proof.

App. 4

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 com-

plaining party).

Ill. 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 per-

ceive 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 uv.

Indus. Claim Appeals Office, 914 P.2d 501, 506 (Colo.

App. 1995) (ALJ has broad discretion to determine

App. 5

the admissibility of expert testimony, and appellate

courts may not overturn a ruling unless it is mani-

festly erroneous).

Claimant urges that the testimony was relevant

because employer’s vocational expert relied on the

FCE and the ALJ adopted both the treating phy-

sician’s restrictions and the recommendations of the

FCE, finding that they were consistent. Claimant fur-

ther asserts that employer’s objection to the testi-

mony 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 ex-

pressly waive or surrender her common law rights

and was entitled to bring a claim in the district court.

App. 6

She also contends that portions of the Workers’ Com-

pensation 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 adju-

dication 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 toa

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

App. 7

of the constitution itself or by an amendment thereto.

We disagree.

Claimant is correct that, under the cited con-

stitutional 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, sec-

tion 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 juris-

diction 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 infringe

ment of some right of the first, before a court of jus-

tice, 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 ov.

App. 8

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 nondu-

plication 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) Gurisdiction to apportion tort settle-

ment proceeds between economic and noneconomic

damages so as to determine amount of workers’ com-

pensation insurance carrier’s right of subrogation lies

in the district court; apportionment case is a separate

cause of action, not an ancillary proceeding to the

workers’ compensation case); Dee Enters., 89 P.3d at

439 (no statutory or other provision indicates an

intent by legislature to make workers’ compensation

matters civil proceedings); MGM Supply Co. vu.

Industrial Claim Appeals Office, 62 P.3d 1001, 1004

(Colo. App. 2002) (workers’ compensation cases are

not civil disputes). The General Assembly has the

right and power to so determine. See Terrell, 164

Colo. at 443, 435 P.2d at 766.

Accordingly, claimant has no right to proceed

against employer in the district court, and an express

App 9

waiver or surrender of any common law rights wa

not necessary

Claimant also contends that the Act is uncon

stitutional because ALJs, who have original juri:

diction under section 8-43-201, C.R.S. 2008, to hear

and decide all workers’ compensation matters, are

employed by the executive branch rather than the

judicial branch. She claims that such an arrangement

conflicts with the original jurisdiction that is vested

in the judiciary under the Colorado Constitution to

adjudicate all civil actions. We are not persuaded

This specific contention was addressed and

rejected in Dee Enterprises, 89 P.3d at 430, where a

division of this court held that (1) the grant of juri

diction to the ALJs did not require them to exercise

functions that were inherently judiciai; (2) the

workers’ compensation statutes create a “public

rights” case that is particularly suited to admin

istrative oversight and determination; and (3) the

essential functions of the judicial branch are suffi

ciently protected by the limits placed on the juris

diction conferred upon the ALJs and the direct appel

late review provided for under the Act. The division

concluded that the Act poses no substantial threat to

the separation of powers and is, therefore, const

tutional. /d. at 438

Similar constitutional arguments were made and

rejected in MGM Supply. In that case, the division

App. 10

distinguished workers’ compensation claims” from

ordinary civil disputes involving private parties and

private rights, which must be resolved in the court

and specifically determined that, by authorizing

direct appeal Lo this court, the Act accommodated any

right the partie may have to have their di pute

considered by judges subject to popular vote.” 62 P.4d

at 1004

Claimant asserts that Dee Knlerprises and MGM

Supply were wrongly decided We d) ive Wi regard

the analysi in each case to. he thorough well

reasoned, and complete, and we discern no indication

that either division decided issues not properly befor

it

Thus, for the ame reason tated in MGM

Supply and Dee Hnterprise we hold that claimant

has failed to prove the Act is unconstitutional. Se

Calvert v. Indus. Claim Appeals Office, 155 P.3d 474

177 (Colo. App. 2006) (the Act and its provisions are

presumed to be constitutional and claimant has the

burden to prove otherwise beyond a reasonable

doubt }

V (Common Law Action Under Section 8-43-3009

(Claimant asserts that she should be entitled lo pul

ue an action in the district court avainst hers

employer and we must remand for that purpose

because we have failed to issue a decision within

thirty days after the appeal came at issue, in contra

vention of section &-43-309. CRS. 2ZOO8. Claimant

App. 11

contends that the statute is jurisdictional, not merely

directory. We disagree.

The primary goal in construing a statute is to

determine and give effect to the intent of the General

Assembly. McKinney v. Indus. Claim Appeals Office,

894 P.2d 42, 44 (Colo. App. 1995). We must give effect

to the General Assembly’s purpose and intent as

reflected in the plain language of the statute, and we

do not depart from the plain meaning unless it leads

to an absurd result. In addition, we read and consider

the statutory scheme as a whole to give consistent,

harmonious, and sensible effect to all its parts.

Peregoy v. Indus. Claim Appeals Office, 87 P.3d 261,

263 (Colo. App. 2004).

Section 8-43-309 provides:

Actions in court tried within thirty days. Any

such action commenced in the court of

appeals to set aside or modify any order shall

be heard within thirty days after issue shall

be joined, unless continued on order of the

court for good cause shown. No continuance

shall be for longer than thirty days at one

time.

We first note that nothing in the statute defines

the phrase directing that the action “shall be heard”

within thirty days. The statute does not say whether

a decision must be rendered or, instead, whether oral

argument must be held within that time. Nor does

the statute provide a time frame for cases in which no

oral argument occurs. And, as an appellate court, we

App. 12

do not “try” cases as the heading of the statute

appears to direct. Instead we review cases in which a

trial or evidentiary hearing has already occurred.

Nevertheless, we will assume the statute requires

that some action toward resolution of the case must

be taken within thirty days following the date that

“issue shall be joined.”

Generally, a case is “at issue” in this court when

the reply brief is filed. Using that as the triggering

date, the record reveals that no action toward

deciding this case was taken within that thirty-day

period, and no orders were issued extending the

thirty-day period. Assuming, therefore, that the

statute has been violated, we then turn to whether

the statute is jurisdictional and mandatory, or,

instead, merely directive.

“There is no universal rule by which directory

provisions may, under all conditions, be distinguished

from those which are mandatory. The intention of the

legislature, however, should be _ controlling... .”

Danielson v. Castle Meadows, Inc., 791 P.2d 1106,

1113 (Colo. 1990) (quoting LA N. Singer, Sutherland

Statutory Construction § 25.03, at 441-42 (4th ed.

1984)).

Whether the General Assembly intends a

statutory provision to be directory or jurisdictional

requires consideration of “the legislative history, the

language of the statute, its subject matter, the impor-

tance of its provisions, their relation to the general

object intended to be accomplished by the act, and,

App. 13

finally, whether or not there is a public or private

right involved.” DiMarco v. Dep't of Revenue, 857 P.2d

1349, 1351-52 (Colo. App. 1993) (quoting Application

of Rosewell, 97 Ill. 2d 434, 440, 454 N.E.2d 997, 999

(1983)). Applying this analysis here, we conclude for

multiple reasons that the provision at issue was

intended by the General Assembly to be directory and

not mandatory or jurisdictional.

First, while the statute directs that an action

“shall” be heard, and “shall” generally indicates that.

a provision is mandatory, see People v. Dist. Court,

713 P.2d 918, 921 (Colo. 1986), nevertheless, courts

“have generally construed time limitations imposed

on public bodies as being directory rather than man-

datory.” DiMarco, 857 P.2d at 1352.

Second, affirmative language such as “shall be

held within” is indicative of a directory constructicn.

Id.; see Burns v. Bd. of Assessment Appeals, 820 P.2d

1175, 1177-78 (Colo. App. 1991) (requirement that a

ruling must be rendered “within” twenty days is

directory).

Third, the statute does not state that this court

loses jurisdiction after the thirty-day period expires,

and nothing in the statutory language suggests that

it is jurisdictional in nature. See Mahaffey v.

Barnhill, 855 P.2d 847, 849 (Colo. 1993) (statute

directing that court shall commence trial not more

than twenty days after joining of issue is directory,

not mandatory)

App. 14

Fourth, courts will construe a statute to limit

jurisdiction only when that limitation is explicit. See

In re Fisher, __ P.3d __, __ (Colo. No. 07SA383,

Feb. 9, 2009) (C.R.C.P. 251.19, which provides that

attorney disciplinary hearing board shall prepare an

order within sixty days after the hearing is not

jurisdictional); Jn re A. W., 637 P.2d 366, 374 (Colo.

1981) (“While jurisdiction may be limited by the

legislature, no statute will be held to so limit court

power unless the limitation is explicit.”); Langton v.

Rocky Mountain Health Care Corp., 937 P.2d 883

(Colo. App. 1996) (statute stating that ALJ “shall”

enter written summary order denying or allowing a

workers’ compensation claim within fifteen days after

conclusion of a hearing is directory, not mandatory).

Fifth, claimant’s request for a remand to a

tribunal that has never before heard the matter

would leave unresolved whether such a remand

would require the district court to allow a common

law proceeding for personal injury or instead to apply

the Workers’ Compensation Act provisions. And

remand is not a stated remedy for any violation of the

statute.

Finally, construing the pertinent time limit to be

mandatory and jurisdictional would divest this court

of authority to decide the dispute. This interpretation

would operate to deprive both claimants and

employers of the quick and efficient delivery of disa-

bility and medical benefits and a timely disposition of

their disputes. See Langton, 937 P.2d at 885-86.

App. 15

Hillebrand Construction Co. v. Worf, 780 P.2d 24

(Colo. App. 1989), is distinguishable. There, the

statute at issue provided specific consequences if an

ALJ did not enter a supplemental order within the

statutory period, a factor that the division found

determinative. Here, in contrast, nothing in the

statute indicates what should happen if the thirty-

day period is not observed.

In addition, claimant cannot point to any

prejudice resulting from the failure to comply with

the statutory provision. Her proposed remedy of

remand for a hearing in the district court would

prolong the case at significant cost to all parties,

contrary to the legislative intent to interpret the

Workers’ Compensation Act “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.”

§ 8-40-102(1), C.R.S. 2008.

The order is affirmed.

JUDGE ROY and JUDGE CONNELLY concur.

App. 16

INDUSTRIAL CLAIM APPEALS OFFICE

W.C. No. 4-685-483

IN THE MATTER OF THE

CLAIM OF ROSARIO AVIADO,

Claimant

ENSICON CORPORATION,

FINAL ORDER

Employer, |

and

WAUSAU INSURANCE

COPRORATION,

Insurer,

Respondents.

The claimant seeks review of an order of Admin-

istrative Law Judge Feller (ALJ) dated November 6,

2007, that determined that the claimant is not per-

manently and totally disabled and that awarded

permanent partial disability benefits based upon the

respondents’ final admission of liability. We affirm.

A hearing was held on the issues of whether the

claimant is permanently and totally disabled and, if

not, whether the claimant sustained impairment

properly measured as a whole person impairment

rating. The ALJ entered an order reciting the

following procedural history. The claimant sustained

the compensable occupational disease of carpal tun-

nel syndrome with an onset of disability of April 24,

2006. The respondents filed a final admission of

App. 17

lability admitting for benefits based upon five per-

cent extremity impairment of the right arm and three

percent extremity impairment of the left. The claim-

ant objected and obtained a Division-sponsored inde-

pendent medical examination (DIME), which reported

that the claimant had sustained extremity impair-

ment equal to seven percent of the right arm and four

percent of the left. Although the claimant sought

additional impairment of her neck, the DIME

physician, Franklin Shih, MD., found no impairment

except for the extremity impairment mentioned. The

respondents filed a second final admission of liability

admitting for the impairment reported by the DIME.

The claimant filed an application for hearing endors-

ing, among other issues, permanent partial disability

benefits, and permanent total disability benefits.

The ALJ also entered extensive and thorough

findings of fact that it is unnecessary to recite in

detail here. However, for the purposes of this order

those factual findings may be summarized as follows.

The claimant sustained a compensable injury on Apri!

24, 2006, that was later diagnosed as bilateral carpal

tunnel syndrome. She was laid off from her position

as an assembler several days after her injury. The

claimant was born in the Philippines and on her

arrival in the United States in 1992 she accepted a

job as a server, cashier, and kitchen help in a food

court. She worked concurrently at a convenience

store, where she “did everything,” including cleaning,

ordering, stocking and cashiering. She subsequently

worked as a temporary filing clerk, where she became

App. 18

proficient in the Microsoft Excel system. She later

worked at a retail store processing payroll, com-

pleting various “government forms” necessary in con-

nection with the business, and managing negotiations

with the business’s landlord. Following that in

August 2005 she accepted the position with this

employer assembling pumps, which she continued

doing until April 2006. The ALJ also entered factual

findings based upon his observations of the claimant

at the hearing. He found that she was “intelligent

[and] thoughtful” and likely to be appealing to a

prospective employer. He further found that she

answered questions precisely, exhibiting a “mental

aptitude” likely to lead to her obtaining employment.

The ALJ noted that the claimant had “mastered” two

languages and that she had a relatively wide range of

job experiences making her “well suited” for further

employment despite her injury.

The ALJ also entered factual findings concerning

the course of the claimant’s medical treatment and

the physical restrictions imposed by her authorized

treating physician, Dr. Hawke, who first treated the

claimant on May 4, 2006. He interpreted the claim-

ant’s nerve conduction studies as showing a moderate

median neuropathy at the right wrist, a mild median

neuropathy at the left wrist, and no other abnor-

malities. He imposed restmctions precluding

repetitive activity, On June 16, 2006, Dr. Hawke’s

colleague, Dr. Fanning, imposed restrictions requiring

the claimant to avoid repetitive grasping or gripping,

and to avoid lifting over ten pounds, along with

App. 19

restrictions on carrying, pushing and pulling. The

claimant decided that she would not undergo surgery,

despite several recommendations that she do so. The

ALJ also entered factual findings concerning two

functional capacity evaluations undergone by the

claimant. Dr. Hawke reviewed a functional capacity

evaluation report prepared by a therapist at the

request of the claimant, Gail Gerig. Dr. Hawke

disagreed with the conclusions of that report. He also

reviewed a report prepared by HealthSouth, which

reported that the claimant could work in positions

falling within the sedentary category. The ALJ also

found that when the claimant cancelled a scheduled

surgery Dr. Hawke determined that she was at

maximum medical improvement and he assessed her

impairment at five percent of the right arm and three

percent of the left. He imposed physical restrictions

limiting lifting, carrying, pushing and pulling to ten

pounds and limiting repetitive activities to an

occasional basis. Dr. Hawke also noted that the

claimant should “rotate” to non-repetitive tasks for 40

minutes after every 20 minutes of repetitive activity.

The ALJ found that these restrictions were those

applicable to the claimant, but that the restrictions

set forth in the HealthSouth report were “consistent”

with those imposed by Dr. Hawke. As noted, a DIME

was performed, which reported that some of the

claimant’s symptoms were “rather diffuse, nonspe-

cific, and non-physiologic,” from which the ALJ

inferred that the claimant’s “self-imposed restrictions

do not support Claimant’s inability to earn wages in

the job market on as (sic) reasonably sustainable

App. 20

basis.” Full Findings of Fact, Conclusions of Law, and

Order at 9, 7 38 (hereinafter “Order”).

The ALJ also entered extensive factual findings

regarding the competing evidence and testimony from

the parties’ respective vocational rehabilitation

experts. The ALJ set forth in considerable detail

those opinions and explained in similar detail his

reasons for crediting the opinions of the respondents’

expert over those of the claimant. Having thus

weighed the expert evidence, the ALJ concluded that

the claimant failed to carry her burden of proving

that she was permanently and totally disabled. The

ALJ therefore denied those benefits. (The ALJ also

awarded permanent partial disability benefits con-

sistent with the respondents’ final admission of

liability admitting for the scheduled impairment

reported by the DIME. However, we do not under-

stand the claimant to have appealed any aspect of

that award of permanent partial disability benefits.)

The claimant appealed the ALJ’s denial of

permanent total disability benefits and presents

several arguments. First, the claimant argues that

the ALJ erred in denying permanent total disability

benefits based at least in part upon the respondents’

affirmative defense of an unreasonable refusal of

medical treatment, where the defense was neither

pleaded nor proved, and which, in addition, con-

stituted an impermissible challenge to maximum

medical improvement. The claimant also argues that

the ALJ erred in ruling that HealthSouth’s report of

the functional capacity evaluation was irrelevant and

App. 21

then relying upon it in denying permanent total

disability benefits. Finally, the claimant argues that

the ALJ abused his discretion in denying permanent

total disability benefits. We are unpersuaded that the

ALJ committed error requiring reversal of his order.

¥

The claimant argues that the respondents did not

endorse the issue of the claimant’s unreasonable

refusal of surgery until they raised that issue in their

post-hearing position statement, and that addi-

tionally no questions were put to any witness at the

hearing concerning that issue. The claimant further

notes that the denial of benefits based upon a refusal

of medical treatment, provided for in § 8-43-404(3),

C.R.S. 2007, constitutes an affirmative defense that

must be pleaded and proved, and that the ALJ erred

insofar as he stated otherwise:

While conceding the correctness of these asser

tions, we nonetheless perceive no reversible error in

this respect. Section 8-43-404(3) provides that “[ilf

any employee . . . refuses to submit to such medical or

surgical treatment ... as is reasonably essential to

promote recovery, the director shall have the dis-

cretion to reduce or suspend the compensation of any

such injured employee.” We agree that this provision

sets out an affirmative defense and, as such, it must

be pleaded and proved or the defense is waived. See

Valley Tree Service v. Jiminez, 787 P.2d 658 (Colo.

App. 22

App. 1990); Crist v. Booth Land & Livestock, W.C. No.

4-357-502 (April 9, 1999).

We assume, without deciding, that the ALJ erred

in concluding that the claimant’s unreasonable

refusal to undergo surgery “serves to bar a claim for

permanent total disability benefits.” Order at 17, { e.

However, it is unnecessary for us to determine

whether that conclusion constituted error since, in

any event, it would be harmless. It is patently evident

from the AL.J’s order that regardless of the claimant’s

refusal to undergo surgery, the ALJ weighed the

extensive expert vocational rehabilitation and medi-

cal evidence and concluded from that evidence that

the claimant was not permanently and _ totally

disabled in her present state. Indeed, directly fol-

lowing the ALJ’s statement that the claimant’s claim

for permanent total disability benefits was “barred”

by her failure to undergo surgery, he referred to the

opinions of Dr. Hawke, Dr. Fremling, and the DIME

physician, Dr. Shih, and to his having concluded that

the medical evidence did not support the claim of

total disability. The ALJ then referred to his having

“critically weighed” the competing vocational rehabil-

itation evidence and again to his having concluded

that the more persuasive of that evidence supported a

denial of the claim for permanent total disability

benefits. Order at 17, {| e. Moreover, the ALJ correctly

described the legal standard applicable to a deter

mination of the issue of permanent total disability,

noting that the proper analysis requires consideration

of the various “human factors” applicable to the

App 20

claimant’s ability to earn wages. Finally, as pre

viously noted, the ALJ entered extensive factual

findings regarding the conflicting vocational reha

bilitation testimony and evidence, and explained in

detail his resolutions of those conflicts. Had the AI.J

intended merely to dismiss or deny the claim for

permanent total disability benefits based upon § 8-43

404(3) ‘which the ALJ did not cite or mention) his

extensive factual findings, his evaluation of the

probative value of the conflicting evidence, and hi:

application of the correct legal standard would all

have been mere excess unnecessary to his resolution

of the disputed issue of permanent total disability. In

our view such a reading of the ALJ’s order would not

be reasonable. Consequently, any error regarding the

legal effect of the claimant’s failure to undergo sur

gery was necessarily harmle:

It follows from this that it is unnecessary for us to

address the claimant’s arguments that the record

contains no evidence supporting the finding that the

claimant unreasonably refused to have surgery, and

that in any event the issue was an impermissible

challenge to maximum medical improvement. Any

error in either regard would also necessarily be harm

less and therefore would be disregarded

I]

The claimant also argues that the ALJ's order

compels the conclusion that she is permanently and

totally disabled. The claimant argues that the ALJ’:

App Z |

finding that the surgery would have rendered thi

claimant capable of carning wape necessarily

implies that she presently is mol capable of doing so

Therefore, the claimant argues that permanent total

disability benefits should be awarded as a matter of

law. We disagree

In our view it is not a fair reading of the ALJ

order to infer that he “implicitly” concluded that the

claimant is unable to earn waves because she did not

consent to the recommended surgery. Rather, the ALJ

clearly concluded that she was presently able to earn

wages and in doing so he properly applied the

relevant law. In our view, having correctly applied the

legal standards, this issue on review is whether sub

Lantial evidence supports the AlL.J’s factual finding

and We COTi¢ lude that il dor

Section &-40-Z01(16.5)(a), CRS. 2007. define

permanent total disability as the claimant’s inability

to earn any wages in the same or other employ

ment.” The burden of proof to establish permanent

total disability is on the claimant. The ALJ properly

recognized that in determining whether the claimant

has sustained her burden of prool, the ALJ may con

sider those “human factors” that define the claimant

as an individual. Christie v. Coors Transportation Co

933 P.2d 1330 (Colo. 1997). These factors may include

the claimant's physical condition, mental ability, age

employment history, education and the “availability

of work” the claimant can perform. Weld County

School District Pl-12 v. Bymer, 955 P2d 550 (Colo

199%). The overall objective of this standard is to

App. 25

determine whether, in view of all of these factors,

employment is “reasonably available to the claimant

under his or her particular circumstances.” Weld

County School District RE-12 v. Bymer, 955 P.2d at

558.

Because the issue of permanent total disability is

generally factual, we must uphold the ALJ’s findings

if supported by substantial evidence in the record.

§ 8-43-301(8), C.R.S. 2007. Substantial evidence is

that quantum of probative evidence which a rational

fact finder would accept as adequate to support a con-

clusion without regard to the existence of conflicting

evidence. Metro Moving & Storage Co. v. Gussert, 914

P.2d 411 (Colo. App. 1995). This standard of review

requires that we consider the evidence in the light

most favorable to the prevailing party, and defer to

the ALJ’s credibility determinations, resolution of

conflicts in the evidence and plausible inferences

drawn from the record. Wilson v. Industrial Claim

Appeals Office, 81 P.3d 1117 (Colo. App. 2003). The

existence of evidence which, if credited, might sup-

port a determination contrary to that reached by the

ALJ does not afford us grounds to grant appellate

relief Colorado Fuel and Iron Corp. v. Industrial

Commission, 152 Colo. 25, 380 P.2d. 28 (1963).

Further, the ALJ’s assessment of the probative

value of the evidence and his credibility determin-

ations are matters solely within his province. We may

not set aside a credibility determination unless the

testimony of a particular witness, although direct and

unequivocal, is “so overwhelmingly rebutted by hard,

App. 26

certain evidence directly contrary” that a fact finder

woule err as a matter of law in believing the witness.

Halliburton Services v. Miller, 720 P.2d 571 (Colo.

1986); Johnson v. Industrial Claim Appeals Office,

973 P.2d 624 (Colo. App. 1997). Consequently, the

ALJ’s credibility determinations are binding except in

extreme circumstances. Arenas v. Industrial Claim

Appeals Office, 8 P.3d. 558 (Colo. App. 2001). We will

neither reweigh the evidence nor substitute our

judgment for that of the ALJ regarding the credibility

of the competing witnesses.

We disagree with the claimant’s argument that

here reasonable minds could draw but a single infer-

ence from the factual record. If that were the case, of

course, then the question of the claimant’s entitle-

ment to permanent total disability benefits would be

converted to one of law. See Schreiber v. Brown &

Root, Inc., 888 P.2d 274 (Colo. 1993) (a factual issue

may become one of law only if reasonable minds can

draw but one conclusion from undisputed facts). Con-

trary to the claimant’s argument, however, there is

ample evidence in this record supporting the ALJ's

findings. The testimony and reports of the respon-

dents’ vocational rehabilitation expert constitutes

substantial evidence supporting the conclusion that

the claimant is capable of employment and therefore

is able to earn wages.

App. 27

big

The claimant also argues that the ALJ committed

error in sustaining the respondents’ objection to a

question regarding the HealthSouth functional capa-

city evaluation. The claimant’s attorney asked the

claimant whether she attempted to return to Dr.

Hawke following the functional capacity evaluation

performed by HealthSouth. She replied that she

“tried to go back to him,” and at that point the

respondents interposed an objection based upon the

relevance of the inquiry. The claimant's attorney

responded that the questioning “goes to the weight of

the FCE.” Tr. at 38. The ALJ sustained the objection,

noting that Dr. Hawke had “assigned permanent

restrictions” and that whether the claimant was per-

mitted to return to him was not relevant. Tr. at 39.

The claimant notes that the ALJ relied upon the

HealthSouth functional capacity evaluation report in

denying the claimant’s claim for permanent total

disability benefits. She now argues that by precluding

the inquiry into whether she was permitted to return

to Dr. Hawke the ALJ erred because such questioning

“went to the weight of the report” and presumably

would have undermined the credibility of the

HealthSouth functional capacity evaluation. We are

not persuaded that the ALJ committed reversible

error.

The ALJ exercises “wide discretion” in conducting

evidentiary proceedings, including making eviden-

tiary rulings. See § 8-43-207(1), C.R.S. 2007 (detailing

ALJ’s authority to conduct evidentiary hearings); see

App. 28

also IPMC Transp. V. Industrial Claim Appeals

Office, 753 P.2d 803, 804 (Colo. App. 1988) (construing

predecessor statute to § 8-43-207 to provide hearing

officer with wide discretion in conduct of evidentiary

proceedings). Similarly, the ALJ is afforded wide

discretion to determine whether evidence is relevant,

and if so, whether it should be excluded under CRE

403. See Cherry Creek School District v. Voelker, 859

P.2d 805 (Colo. 1993); People v. Gutierrez, I P.38d 241

(Colo. App. 1999) (trial court’s discretion to determine

relevancy is broad). We therefore defer to the ALJ’s

evidentiary determinations unless his ruling consti-

tutes an abuse of discretion by “exceeding the bounds

of reason.” See, e.g., Rosenberg v. Board of Educ., 710

P.2d 1095, 1098-99 (Colo. 1985) (upholding adminis-

trative hearing officer’s refusal to allow depositions

based on abuse of discretion standard).

Here, in our view the claimant overstates the

case by characterizing the ALJ’s ruling as one con-

cluding that “testimony regarding the HealthSouth

FCE was not relevant.” Claimant’s Brief in Support of

Petition to Review at 13. As we read the transcript

the ALJ’s ruling was not that broad. Rather, the ALJ

merely sustained an objection to the question of

claimant’s counsel whether a return trip to Dr.

Hawke was authorized after the HealthSouth func-

tional capacity evaluation was performed. We do not

understand the ALJ’s evidentiary ruling as _ pre-

cluding other questions regarding the HealthSouth

report, or as determining that the whole of that

functional capacity evaluation was “irrelevant.” The

App. 29

ALJ’s determination precluding the attorney's inquiry

into whether the claimant was permitted to return to

Dr. Hawke was not an abuse of the ALJ’s discretion.

The ALJ apparently concluded that it was only of

limited relevance that the respondents were unwill-

ing to pay Dr. Hawke to examine the claimant and

presumably to comment upon the HealthSouth

report. The attorney’s proffered evidence might argu-

ably have permitted the inference that the respon-

dents believed that Dr. Hawke’s comments would be

detrimental to the respondents’ case. However, the

ALJ’s determination that that evidence was only of

limited relevance does not “exceed the bounds of

reason.” Under these circumstances we cannot

conclude that the ALJ abused his discretion in pre-

cluding the claimant’s attorney from inquiring into

whether the respondents were willing to authorize a

visit to Dr. Hawke.

Finally, in our view, the ALJ did not rely upon

the HealthSouth functional capacity evaluation

report as the basis for any dispositive factual finding.

In this regard, the ALJ entered somewhat sparse

factual findings regarding the conclusions of the

report, Order at 6, 4 21, and then merely found that

the HealthSouth report was “consistent” with Dr.

Hawke's restrictions and “confirmed” them. Order at

7,9, J 25, 9 40. As we read the ALJ’s order, he relied

principally upon Dr. Hawke's. restrictions § in

concluding that the claimant was not permanently

and totally disabled. Under these circumstances, any

error in precluding the claimant from testifying that

App. 30

a return visit to Dr. Hawke was not authorized was

harmless error. As such, it cannot form the basis for

relief on appeal. CRE 103(a) (error may not be

predicated on evidentiary error unless a substantial

right of the party is affected).

IV.

We have considered the claimant’s final argu-

ment that the ALJ abused his discretion in denying

permanent total disability benefits and we are not

persuaded to reach a different result. As we under-

stand the claimant's argument it is that the reports,

testimony, and opinions of the respondents’ vocational

rehabilitation expert are so fundamentally flawed as

to render them unbelievable as a matter of law. This

argument is without merit.

As previously noted, under the applicable stan-

dard of review it is the Ald’s sole prerogative to

evaluate the credibility of the witnesses and the pro-

bative value of the evidence. In this regard, it is for

the ALJ to determine the weight and credibility of

expert medical opinion, and we may not reweigh the

evidence based upon the claimant’s argument that

the respondents’ expert testimony was not credible.

Rockwell International v. Turnbull, 802 P.2d 1182

(Colo. App. 1990). We may not substitute our

judgment for that of the ALJ regarding credibility

matters unless there is such hard, certain evidence

contradicting the ALJ’s determination that it would

be error as a matter of law. See Halliburton Services

App. 31

v. Milier, 720 P.2d 571 (Cob. 1986). Contrary to the

claimant’s argument, we do not construe the record

here as admitting only of the single result sought by

the claimant. The claimant’s argument is tantamount

to one that she is permanently and totally disabled as

a matter of law and that no assessment of the evi-

dence could result in any other conclusion. In our

view the ALJ properly weighed the competing evi-

dence and evaluated its probative value prior to

drawing reasonable inferences from the record. His

decision to credit portions of the testimony of the

respondents’ expert was reasonable in light of the

record and he did not abuse his discretion in that

regard. In pointing out possible inconsistencies,

weaknesses, or internal conflicts in the expert’s

testimony, the claimant ignores the point that when

determining the credibility of a witness, the ALJ is

free to credit all, part, or none of the testimony.

Monfort, Inc. v. Rangel, 867 P.2d 122 (Colo. App.

1993). We perceive no reversible error in the All’s

order and therefore affirm.

IT IS THEREFORE ORDERED that the ALJ’s

order dated November 6, 2007, is affirmed.

INDUSTRIAL CLAIM APPEALS

PANEL

[Illegible] _

Curt Krikseiun

[Illegible]

Thomas Schrant

App. 32

NOTICE

This Order is final unless an action to

modify or vacate this Order is commenced in

the Colorado Court of Appeals, 2 East 14th

Avenue, Denver, CO 80203, by filing a petition

for review with the Court, within twenty (20)

days after the date this Order is mailed,

pursuant to § 8-43-301(10) and § 8-43-307, C.R.S.

2007. The appealing party must serve a copy of

the petition upon all other parties, including

the Industrial Claim Appeals Office, which may

be served by mail at 633 17th Street, Suite 600,

Denver CO 80202.

[Certificate Of Mailing Omitted In Printing]

App. 33

OFYICE OF ADMINISTRATIVE COURTS

STATE OF COLORADO

LAW AND ORDER

IN THE MATTER OF THE WORKERS’ COMPEN-

SATION CLAIM OF:

ROSARIO AVIADO,

Claimant,

V.

ENISICON CORPORATION.

Employer,

and

WAUSAU INSURANCE COMPANIES,

Insurer/Respondents.

Hearing in the above-captioned matter was held

before Edwin L. Fetter, Jr., Administrative Law

Judge (ALJ), on June 12, 2007 and completed on

August 20, 2007, in Denver, Colorado. The hearing

was digitally recorded (reference:6/12/07, Courtroom

1, beginning at 8:35 AM, and ending at 11:59 AM;

and, 8/20/07, Courtroom 3, beginning at 8:31 AM, and

ending at 8:40 AM).

Claimant was present in person and represented

by Chris Forsyth, Esq. Respondents were represented

by Scott M. Busser, Esq.

App. 34

Hereinafter Rosario Aviado shall be referred to as

the “Claimant.” Ensicon Corporation shall be referred

to as the “Employer.” All other parties shall be

referred to by name.

The August 20, 2007 completion hearing was

vacated because Respondents’ expert vocational

witness, Meg Turner-Elder, had a family emergency.

Consequently, the parties agreed to submit Ms.

Elder’s testimony and any rebuttal thereto by

evidentiary deposition. The ALJ ordered Ms. Turner-

Elder’s deposition to be submitted within 30-days;

and, any rebuttal depositions to be submitted within

20-days thereafter. The ALJ further ordered that

Claimant’s opening brief be submitted, electronically,

within 5-days after the filing of the last evidentiary

deposition; Respondents’ answer brief to be sub-

mitted, electronically, within 5-days after the opening

brief; and, Claimant’s reply brief to be submitted,

electronically, within 3-days of the answer brief. Ms.

Turner-Elder’s evidentiary deposition was filed on

September 19, 2007; and, the Claimant’s rebuttal

evidentiary deposition was filed an October 9, 2007.

Claimant’s opening brief was filed on October 22,

2007; Respondents’ answer brief was filed on

November 1, 2007; and, Claimant’s reply brief was

filed on November 6, 2007. The matter was deemed

submitted for decision on November 6, 2007.

App. 35

ISSUES

The issues to be determined by this decision

concern whether or not the Claimant is permanently

and totally disabled (PTD); or, in the alternative, if

the Claimant is not PTD, is the situs of her functional]

impairment in the trunk of her body as opposed to

her left (LUE) and right (RUE) upper extremities,

thus, entitling her to a whole person permanent

partial disability (PPD) award instead of scheduled

awards for both upper extremities. The Claimant has

the burden of proof, by a preponderance of the

evidence, on both issues.

PROCEDURAL HISTORY

Claimant sustained an admitted bilateral carpal!

tunnel syndrome that manifested itself on or about

April 24, 2006. Respondents first filed a Final Admis-.

sion for 5% and 3% scheduled permanent impairment

for the right and left upper extremities (RUE and

LUE), respectively, on August 18, 2006. Claimant

filed a timely objection and initiated the Division

sponsored independent medical examination (DIME)

process, seeking additional impairment for the neck

Franklin Shih, M.D., performed the DIME and

issued a report dated November 28, 2006. He agreed

with the maximum medical improvement date (MMI)

found by Jeffrey Hawke, M.D., Claimant’s authorized

treating physician (ATP), of July 31, 2006. Dr. Shih

also agreed with Dr. Hawke's bilateral extremity

ratings, although he rated the RUE and LUE as

App. 36

sustaining 7% and 4% scheduled impairment respec-

tively. Dr. Shih found no permanent impairment

beyond these extremities.

Respondents accepted the DIME report and filed

a conforming Final Admission of Liability, dated

December 29, 2006. Thereafter, Claimant filed a

hearing application, dated January 26, 2007, on the

issues of medical benefits (authorization: reasonably

necessary), disfigurement, temporary total disability

(TTD) benefits from July 30, 2006 onward, perma-

nent partial disability (PPD) benefits, situs of func-

tional impairment, overcoming the DIME as to MMI,

and permanent total disability (PTD). Respondents

filed a time response that endorsed those issues as

well as statutory offsets.

FINDINGS OF FACT

Based on the evidence presented at hearing, the

ALJ makes the following Findings of Fact

General Findings

l. Claimant is a 40-year-old woman who began

work for the Employer in 2005. She was working as

an assembler for the Employer when she suffered an

admitted work injury on April 24, 2006. She was

diagnosed with bilateral carpal tunnel syndrome

2. According to the Claimant she continued

working with pain until she was laid off from her

position with the Employer on April 28, 2006, four

App od

days after the work injury, for reasons neither the

Claimant nor the Employer clearly explained

3. Claimant was born in the Philippines and

learned English as part of her regular studies. Afte:

arriving in the United States on October 3, 1992, she

worked at a fast food court in the Tabor Center a

kitchen help, server and cashier. She also began

working at 7-11 effective February 2, 1993. She

worked continuously for 7-1L until July 30, 2006

alternating between full and part time employment

She “did everything” at 7-11 including cleaning,

ordering, stocking and cashiering. The ordering was

initially done by phone and, later, by computer. At the

hearing, the ALJ observed that Claimant presented

as fluent in English

4. After leaving the Tabor Center food court

Claimant worked as a fling clerk placed through a

temporary agency and learned how to. operate

Microsoft Ixxcel. Later, she participated in a Family

Dollar store. She processed payroll, government

forms, and handled negotiations with the landlord

De pile her efforts, the business failed a year later

9. Claimant then went to work for the Employer

herein on August 28, 2005 and continued until April

28, 2006, assembling pumps. She has not worked

since leaving that job and her concurrent employment

at 7-11. which she left on Julv 30. 2006

6. ‘loday, Claimant still performs light hous:

work and can drive for up to thirty minutes befor

experiencing some numbne

App 305

7. At the hearing, Claimant presented as an

intelligent, thoughtful) person, the type of person

likely to appeal to a prospective employer, During: the

course of the hearing, she answered questions about

prior employment and inclusive dates of employment

with a high degree of precision, causing the ALJ to

infer and find that she has a mental aptitude likely to

assist her in finding employment. She has mastered

two languayes (English and Tapyalop), a skill that

many workers do not have. She has worked in a

number of jobs, including a family busine: While

that business ultimately failed, she has a ranye of

experiences that leave her well suited for em

ployment. While she did not have a formal education

in the United States, she did complete her education

in the Philippines and has learned from the jobs held

in this country. Claimant suffered an injury that

affected her ability to perform certain jobs, not all

iobs, and as found below it is more likely than not

that she can perform several jobs in the sedentary

catleyvory

THE ATP

e. DOr Hawke first treated Clarmant on May 4

2006. He ordered nerve conduction studies which di

}

played delayed [D2-wrist/palm-wrist sensory, borde:

line distal motor delay on the right with a similar lef

reading a normal, but an abnormal D4-wrist

differential. Otherwise, the needle EMG studies were

read as normal. The studies were interpreted to show

a moderate median neuropathy at the right wrist, a

App. 39

mild median neuropathy at the left wrist, and no

other abnormalities found. Dr. Hawke imposed work

restrictions of avoiding repetitive activities and to

take a break of 15 minutes per hour.

9. In his initial evaluation report of that same

date, Dr. Hawke took a history of symptoms that were

limited to the wrists and arms with Claimant’s health

being otherwise good. Dr. Hawke diagnosed bilateral

carpal tunnel syndrome (CTS), mght Dr. Quervain’s,

and bilateral elbow pain/strain. He prescribed medi-

cation and splinting. He also discussed the possibility

of surgery, which caused Claimant to become “some-

what emotional” as she wanted to “avoid [surgery] at

all costs.”

10. Dr. Hawke saw Claimant again on May 19,

2006, and re-imposed the restriction against repeti-

tive -activity with either hand. He modified the 15-

minute break restriction to allow for non-repetitive

duties with her hands during that break. In the

subjective portion of his May 19, 2006 interim

summary, Dr. Hawke took a history of symptoms

extending to, but not beyond, the elbow level.

>

ll. The July 31, 2006, report of Dr. Hawke

states as follows:

Today the patient reports that she has pain

in the The ulnar eminence of both hands

which is sharp, 8-9/10 on the zero to 10 scale

where 10 is the worst pain imaginable. She

has numbness and tingling into bath palms

and the tips of all 5 digits. She does not

App. 40

think she can lift more than 10 pounds.

When she scans 12-packs of soda or a gallon

of milk while working her other job at Seven

Eleven she has to slide it because she cannot

lift. She does not do mopping or cleaning.

She cannot do repetitive gripping or grasping

with either hand. After 20 minutes of

repetitive hand use, she has to do her

exercises. She has not been doing repetitive

work, and does not believe she could do so

even for only a third of the time. ...

The ALJ finds that this history the Claimant gave Dr.

Hawke does not constitute an opinion of Dr. Hawke.

Indeed, she gave Dr. Hawke a history of continuing to

work at 7-11 from April 24, 2006 through July 31,

2006, without doing “repetitive” motion for more than

20 minutes. Claimant chose to leave the 7-11 job.

There is no persuasive evidence that she could not

continue there without doing repetitive work for more

than 20 minutes on an indefinite basis. There is no

persuasive evidence that the job at 7-11 was not

within Claimant’s medical restrictions.

12. Dr. Hawke’s colleague, Monica Fanning,

M.D., saw Claimant on June 16, 2006, modifying the

restrictions to avoidance of repetitive grasping or

gripping with ten pound lifting, carrying, repetitive

lifting, pushing and pulling limits. In the interim

summary of that date, Claimant reported that her

left hand was “doing fine” without symptoms beyond

the hand. Again, the subject of surgery was explained

to her and she declined. Drs. Hawke and Fanning

App. 41

planned to close her case if she declined surgery as

they had no further non-surgical options to offer.

13. When Claimant visited Dr. Hawke on June

28, 2006, she reported her pain level as “isn’t much

now” with a feeling of weakness.

14. The June 16th restrictions were repeated on

July 10, 2006. In the interim summary of that same

date, Dr. Hawke stated that Claimant was awaiting

surgery.

15. Claimant returned to Dr. Hawke on July 31,

2006. She decided not to proceed with surgery despite

the recommendations of several treating physicians.

Subjectively, Claimant reported increased pain in

both hands. She stated she could not lift more than

ten pounds. She rejected surgery because she felt that

she couldn't take time off for it and could not accept a

5-20% chance of recurrence after surgery. Claimant

was still working her second job at 7-11 and described

it as not being repetitive. Claimant took Tylenol or

Advil as she was not ‘comfortable” with prescription

medication.

16. Dr. Hawke found no impairment beyond the

wrists. He gave Claimant upper extremity impair-

ment ratings based upon lost wrist range of motion.

He then converted the ratings to whole person, as

mandated by the A.M.A. Guides to the Evaluation of

Permanent Impairment, 3rd Ed., Rev. Dr. Hawke

found impairment only to the hands and wrists as the

result of bilateral CTS. He found no impairment to a

part of the body beyond the extremities covered by

App. 42

the schedule. In this regard, his opinion is supported

by multiple nerve conduction studies that showed no

abnormalities beyond the wrists.

17. Dr. Hawke addressed permanent activity

restrictions of limiting lifting, carrying, pushing and

pulling to ten pounds. “For every 20 minutes of

repetitive tasks”, she was to rotate to non-repetitive

tasks for 40 minutes and perform stretching exercises

for 5-10 minutes. Dr. Hawke did not further

articulate what he meant by “repetitive tasks”. He

recommended no additional medical care.

18. Claimant returned to Dr. Hawke on Jan-

uary 26, 2007. Subjectively, she reported decreased

pain in her hands. The only “repetitive” task she

described performing was chopping vegetables for her

family. Claimant reported no symptoms beyond her

hands.

19. Claimant saw Dr. Hawke again on February

16, 2007. She reported waxing and waning pain in

both hands, but no other symptoms. Dr. Hawke did

not change Claimant’s restrictions, impairment

rating, or MMI date.

20. At the request of Claimant’s counsel, Dr.

Hawke reviewed a functional capacity evaluation

(FCE) report prepared by a therapist retained by

Claimant, Gail Gerig. In a letter dated April 14, 2007,

Dr. Hawke disagreed with those FCE findings, noting

that limitations on crouching, stooping or neck flexion

did not pertain to Claimant’s injury.

App. 43

21. Claimant performed a Functional Capaci-

ties Evaluation (FCE) at HealthSouth on June 4,

2007, and a maximum voluntary effort (MVE)

protocol was administered. The results demonstrated

only 4 of 10 coefficients within the 15% variable

limits, reflecting sub maximal effort. In contrast,

Claimant’s performance on the rapid exchange grip

demonstrated maximal effort. The remaining validity

tests were inconsistent. The majority of the lifting

tests were discontinued as a result of Claimant’s

failure to cooperate with the testing as opposed to an

inability to perform the tests.

22. Although Dr. Hawke imposed the above

described restrictions on Claimant’s upper extremity

use, the Functional Range of Motion (F.R.O.M) tests

involved repeated upper extremity reaching from

various positions and Ciaimant registered Methods

Time Measurement (MTM) scores of between 87%

and 110% ranked her between competitive and above

competitive.

23. The evaluators at HealthSouth placed

Claimant in the sedentary work category, concluding:

The results of this evaluation indicate that

[Claimant] demonstrated the ability to lift in

the SEDENTARY category up to 10 pounds

according to the U.S. Department of Labor

for an eight hour day, based on her manxi-

mum occasional lifts. [Claimant] terminated

all lifts secondary to reported pain in her

back and hands or stating that she had

reached her maximum safe limit. She

App. 44

demonstrated the ability to type on an

occasional basis with all other positional

tolerances performed on a frequent to con-

stant bests ... [Claimant] was consistent on

9 of 23 consistency tests which may be an

indicator of sub maximal effort . .

Subjectively, Claimant described an average day of

driving her daughter to school, shopping, running

errands, cooking, and exercising several times a week

on a treadmill or stationary bike. While using the

stationary bike, she would grip the handles and

swing her arms back and forth.

24. At the request of Claimant’s counsel, Dr.

Hawke reviewed a FCE report prepared by a ther-

apist retained by Claimant, Gail Gerig. In a letter

dated April 14, 2007, Dr. Hawke disagreed with those

FCE findings, noting that limitations on crouching,

stooping or neck flexion did not pertain to Claimant’s

InvUry.

25. Dr. Hawke gave Claimant a 10 pound

lifting, carrying, pushing and pulling restriction. The

HealthSouth FCE confirmed this restriction. Dr.

Hawke also imposed a restriction against repetitive

upper extremity use for more than 20 minutes an

hour. Dr. Hawke did not clarify what he meant by

“repetitive”. As described below, that restriction does,

to some degree, limit Claimant’s access to the open

labor market. Overall, Dr. Hawke’s opinions, par-

ticularly the rejection of Gail Gerig’s FCE, do not

support the proposition that Claimant, more likely

than not, is permanently and totally disabled.

App. 45

26. Mitchell Fremling, M.D., a specialist, saw

Claimant on referral from Dr. Hawke’s associate, Dr.

Fanning. In a note dated June 5, 2006, Dr. Fremling

diagnosed bilateral CTS (carpal tunnel syndrome)

with failed conservative management. Dr. Fremling

offered operative treatment that Claimant refused.

He noted that conservative treatment had failed and

he offered operative treatment of the CTS. Claimant

was very anxious about any operative intervention.

27. Claimant returned to Dr. Fremling on June

29, 2006. Contrary to her reports to Dr. Hawke a day

earlier, Claimant reported significant pain and

numbness. Surgery was discussed and she agreed to

proceed with a right carpal tunnel release. On that

date, Dr. Fremling noted that Claimant still had

significant pain and numbness in her hands. He

noted Claimant was afraid of operations, but she

agreed to proceed to a carpal tunnel release, after a

lengthy discussion.

28. Dr. Hawke recommended surgery and was

of the opinion that surgery would likely have led to

further improvement in her condition. Dr. Fremling

recommended a right CTS release to improve Claim-

ant’s condition. Indeed, Claimant was scheduled for

such surgery. Instead, she decided to reject the

surgery despite reporting to Dr. Manuele that she

would only have a 5-20% chance that her symptoms

could recur. The flipside of her remark is that she had

been advised that she had an 80-95% chance that the

surgery would be successful without a recurrence of

the condition.

App. 46

29. On July 10, 2006, Claimant saw Dr. Hawke

who noted Claimant was waiting for her surgery to be

scheduled. Dr. Hawke noted that Claimant remained

restricted frum lifting, carrying, pushing or pulling

over 10 pounds. He also noted Claimant should avoid

repetitive gripping or grasping with either hand.

30. Surgery was scheduled for August 1, 2006,

at North Suburban Surgery Center.

31. Claimant had been working a different job

at 7-11. Claimant worked at 7-11 one day a week.

Claimant testified, however, that she could no longer

do the work in the position due to the pain and work

restrictions from her work injury. Claimant stated

that she had to leave the one-day-a-week position in

July 2006 due to her work injury.

32. On July 31, 2006, Dr. Hawke noted that

Claimant had cancelled the surgery. Therefore, Dr.

Hawke placed Claimant at MMI. Dr. Hawke provided

a 5% RUE impairment rating and 3% LUE im-

pairment rating. Dr. Hawke provided the following

work restrictions: “I feel it is reasonable to limit

lifting and carrying, pushing and pulling to 10

pounds. Repetitive upper extremity tasks should be

limited to an occasional basis. For every 20 minutes

of repetitive tasks, she will need to rotate to non-

repetitive tasks for 40 minutes and should be allowed

to perform stretching exercises for 5-10 minutes.” Dr.

Hawke has not changed these restrictions and these

restrictions remain the permanent work restrictions

for the Claimant’s admitted work injury.

App. 47

33. Franklin Shih, M.D., performed a DIME on

November 28, 2006. Claimant presented with bi-

lateral upper extremity, upper trunk and low back

symptomatology. Dr. Shih questioned Claimant about

the low back and upper trunk symptoms and she

could only connect them temporally. Otherwise,

Claimant’s symptoms were limited to her wrists and

hands.

34. Despite her low back complaints, Claimant

ambulated without pain behavior. She displayed

normal cervical range of motion with “diffuse non-

specific complaints of tenderness” in the upper trunk.

Dr. Shih found functional, active range of motion at

the shoulders. Claimant had additional “nonspecific

diffuse complaints of tenderness spanning from the

shoulder girdle down into the hands including the

digits and articulations of the fingers”.

35. Dr. Shih assessed Claimant as exhibiting

ongoing, nonspecific upper extremity pain complex

and mild electro diagnostic abnormalities in both

upper extremities. He was of the opinion that her

cervical and lumbar complaints were unrelated to the

admitted injury. Dr. Shih repeatedly stated that

Claimant’s complaints were “rather diffuse, non-

specific, and non-physiologic” as he struggled to give

her an appropriate rating. Dr. Shih agreed with Dr.

Hawke’s placement of Claimant at MMI.

36. The Claimant made no reference to any

functional impairment aside from a_ singular

App. 48

reference to the bilateral CTS she sustained in her

wrists. There is no persuasive reference to any body

part beyond the hands and wrists.

37. Respondent filed a new Final Admission of

Liability, dated December 29, 2006, based on Dr.

Shih’s scheduled ratings.

Medical Evidence Relating to PTD

38. Dr. Fremling expressed no opinion re-

garding Claimant’s capacity to work. Dr. Shih ex-

pressed no opinion regarding Claimant’s capacity to

work. He did have extensive comment on the non-

specific, non-physiological nature of Claimant’s pain

complaints. The ALJ infers and finds that he

questioned the legitimacy of Claimant’s non-specific

complaints. Therefore, the ALJ infers and finds that

Claimant’s self imposed restrictions do not support

Claimant’s inability to earn wages in the job market

on as reasonably sustainable basis.

39. Dr. Hawke (the ATP) gave Claimant a 10

pound lifting, carrying, pushing and pulling restric-

tion. The HealthSouth FCE confirmed this restric-

tion. This restriction does not support a Claimant’s

inability to earn wages. It was not cited by Claimant

at hearing or her vocational expert as a contributing

factor. Dr. Hawke also imposed a restriction against

“repetitive” upper extremity use for more than 20

minutes an hour. Dr. Hawke did not clarify what he

meant by “repetitive”. As described below, that

restriction does, to some degree, limit Claimant’s

App. 49

access to the open labor market. Overall, Dr. Hawke’s

opinions, particularly the rejection of Gail Gerig’s

FCE, do not support the proposition that Claimant,

more likely than not, is unable to earn wages in the

job market on a reasonably sustainable basis.

40. The FCE from HealthSouth is consistent

with Dr. Hawke's restrictions as to the 10 pound

lifting, carrying, pushing and pulling limit. It is also

consistent in that Claimant was able to demonstrate

the ability to engage in repetitive upper extremity

use for periods of less than 20 minutes at a time. Dr.

Hawke was of the opinion that Claimant could

engage in repetitive upper extremity use for up to 20

minutes. The HealthSouth FCE also found no other

credible limitations based on sub maximal effort in

other areas. Dr. Hawke, for his part, found no other

limitations resulting from the admitted injury. The

two are not exclusive and a vocational expert could

not err by relying upon both.

VOCATIONAL

Claimant’s Vocational Expert

41. According to the Claimant, she now has

difficulties even with activities of daily living due to

the work injury. She states that she now needs

assistance from her family to cook, garden and clean

the house. Her daughter now does most of the

laundry, folding of clothes, ironing and cleaning the

home. Claimant’s pain continues. Claimant states

that she feels pain in her upper extremities and her

App. 50

back. Also, she sometimes wakes up at night in pain.

The Claimant’s activities of daily living, plus the

HealthSouth FCE results and her ATP’s (Dr. Hawke)

opinions about her restrictions contradict, in part,

Claimant’s testimony concerning her self-imposed

limitations.

42. The vocational evidence is in conflict.

Anthony Manuele, Edna Claimant’s vocational ex

pert, is well credentialed. However, he did not clarify

restrictions with any physician, conducted no

transferable skills analysis and conducted no labor

market studies. Meg ‘Turner-Elder, Respondents’

vocational expert, also did not clarify restrictions, but

she did conduct a transferable skills analysis and a

labor market study. Dr. Manuele did not explain his

methodology. Ms. Elder did. Dr. Manuele made the

assumption that all of Claimant’s prior jobs required

repetitive upper extremity use. Ms. Elder did not

make such an assumption. In this regard, Dr.

Manuele erred as Claimant admitted to Dr. Hawke on

July 31, 2006 that the duties of the 7-11 job were not

repetitive in nature. In this regard, the ALJ resolves

the conflict in the testimony in favor of Ms. Elder

because it is based upon more study, research and is

more consistent with the aggregate medical and lay

evidence.

43. Dr. Manuele tried to emphasize what he

perceived to be a lack of formal education on

Claimant’s part. Ms. Elder noted that Claimant was

educated in her country of origin. Elder also noted

that Claimant’s education also consisted of what she

App i]

learned during the course of her employment history

Dr. Manuele ignored any meaningful learning

Claimant obtained from her jobs over the years such

as learning Microsoft Excel. He also ignored Claim

ant’s personal characteristics such as attention to

detail and memory, traits that Elder stated would

give her a competitive advantage in the workplace

44. Dr. Manuele relied on Dr. Hawke’s restric

tion against repetitive upper extremity use. He never

sought clarification as to the meaning of “repetitive”

nor could he offer a persuasive working definition of

that term at hearing. Elder drew upon her prior

experience as a return to work coordinator and relied

upon an article in a professional publication to arrive

at a meaning for the term. Elder’s approach was more

credible and persuasive than that of Dr. Manucle

45. Dr. Manuele was of the opinion that the

work restrictions provided by Dr. Hawke would

prohibit Claimant from returning to any of her pre

vious occupations. Dr. Manuele was also of the

opinion that all of the previous occupations require

repetitive use of the upper extremities. Dr. Manuele

stated that the “theoretical” employment position

proposed by Respondents’ expert, Meg Turner-Elder,

required repetitive motion that was prohibited by D1

Hawke's restrictions. Dr. Manuele wrote: “After

reviewing all of the factors in |Claimant’s] case, it is

highly unlikely that she will be able to return to work

in any job in the economy at the present time and

would not be able to maintain regular and steady

employment in a job if she found such a job due to her

App ho

restrictions, ongoing pain, and numbmne In hes

hand: ” Moy the reasold articulated below Lhe Ald

does not find Dr. Manucle’s opinions persuasive or

( redible

16 Dr. Manuele also | of the opimion that

Claimant retains the capacity to earn any wages if

she would get the previously offered surgery. He is of

the opinion that if Claimant underwent the recom

mended surgery, reviewed her vocational option

researched the labor market and tred to match her

kills to the available job , he'd bye & nployabl

Respondents’ Vocational Expert

Al Mer Turner-Klder reled upon the Hlealth

South FCE und the Opinion ol Ly Hawke as hes

assumptions on physical restriction In both her

report and deposition testimony, she explained how

he relied on the medical evidence. It is unclear what

Dr. Manuele relied upon in terms of restriction

Appar ntly, Dr. Manuele is of the opinion that ar

upper extremity use 1s “repetitive, but he does no

persuasively explain how he arrived at uch an

OPO

To: Milder 3 a vocational consultant with Ca

cade Disability Management. Sie urmarized§ the

medical documents available to her. Under the socio

economic factors of her report he noted Claimant

Latements that Claimant currently enjoys varden

ing, sewing, biking, and use of a treadmill. Claimant

also enjoy organizing and hoiding garage cule

App. 53

involving products left over from her family’s dollar

store.

49. Based on the job history provided by Claim-

ant, Elder categorized the prior work experience as

store clerk, stock control clerk, inventory clerk,

general clerk, personnel clerk, data entry clerk, cook,

fast food worker, food and beverage order clerk,

payroll clerk, sorter, administrative clerk, real estate

clerk, receptionist, and manager of a retail store. The

latter was based on Claimant’s experience helping to

run a Family Dollar store.

50. Based upon her transferable skills analysis,

Elder was of the opinion that Claimant retained

access to 500 positions with limitations of sedentary

capability. She identified a number of jobs which did

not require “repetitive” upper extremity use _ in-

cluding:

1. food and beverage order clerk;

2. office manager;

3. school secretary;

4. clerk (benefits, hospital admission, credit,

audit, insurance, accounting, etc);

5. crew scheduler;

6. might auditor;

7. dispatcher;

8. retail store manager;

App. 54

9. customer service representative; and

10. receptionist.

Elder was of the opinion that Claimant retained the

aptitudes acquired during her employment history.

Ultimately, Elder concluded her report, stating:

Based on [Claimant’s] work history,

transferable skills, and in reviewing the

restrictions outlined by Dr. Hawke in [sic]

both of the results of the FCE’s, I have

considered all above reports as it relates to

assigning work restrictions and I believe that

at a minimum, [Claimant] can seek em-

ployment in a sedentary work category...

[Claimant] indicated to me that she has

[sic] works in her own garden, that she

cooks, cleans, and every weekend she has a

garage sale at her home. These activities

indicate that she is currently living her hfe

at least in a sedentary or greater capacity.

This indicates to me that she is able to

perform work in a competitive environment.

[Claimant] also possesses transferable

skills that would allow her to work in other

positions that are commonly found and avail-

able in the Denver geographic labor market.

51. Elder’s methodology includes a review the

provided medical records and interviews the subject

as to work history, educational background, social

background, and any hobbies or skills. This is fol-

lowed by a transferable skills analysis and labor

market research.

App. 55

52. Elder interviewed the Claimant and the

information gleaned from that interview is already

contained in great detail in her report. Elder was

present at hearing and heard Claimant’s testimony.

None of Claimant's testimony regarding background

and work activities varied from that provided in the

interview.

53. Elder reviewed the Gerig FCE, Dr. Hawke’s

records, and the FCE performed at Health South.

54. Elder used a computer program to input the

data obtained from the interview, adjusted for the

identified work restrictions, and generated a trans-

ferable skills analysis. The restrictions that could

have been used were limited to the categories of

sedentary, light, medium and heavy. In Claimant’s

case, Elder used sedentary. Transferable skills are

mental or physical in nature as activities have both

physical and mental components.

55. Once the transferable skills analysis is

completed, Elder then examines whether there are

jobs, based on the Dictionary of Occupational Titles

(DOT), within the subject’s commutable labor market.

In Claimant's case, Elder determined that the

commutable labor market was within a 20-30 mile

radius of Claimant’s home, or the Denver metro-

politan area.

56. Elder is familiar with the term SVP (specific

vocational preparation). It is a seale that measures

the experience that someone in a particular job may

possess. SVP does not measure an individual’s ability

r

App. 56

to perform a particular job as it merely measures the

amount of time a person has on the job.

ry

‘.

57. Claimant’s transferable skills include know-

ing how to order materials, making copies, buying

supplies, managing employees (hiring and firing),

communicating effectively, and dealing with members

of the public. Elder characterized Claimant’s com-

munication skills as adequate if not better. Based

upon Claimant’s ability to recali specific dates of

employment, Elder observed that Claimant had good

powers of recall and was very detail oriented, both of

which were desirable transferable skills. These skills

would give Claimant a competitive advantage over

other job candidates.

58. Claimant argues that Elder’s opinion is

based on the idea that an employer will not be busy.

When questioned regarding the use of a cash register,

Elder testified as follows:

Q But physically, constantly running a cash

register would be repetitive motion by any

definition, correct?

A Depends on the lull of the shop that she

might be in. She might — I don’t know

specifically to what —

Claimant argues that the fact that Elder indicated

that Claimant could not work a busy lunch hour at

McDonald’s translates to an inability to earn wages in

the job market. To accept this argument would be to

equate permanent total disability with any inability

App. 07

to perform some of the busiest and most demanding

job duties. This argument is not well taken.

59. According to Elder, Claimant is capable of

earning wages within her commutable labor market

in at least ten different types of jobs. Within each

type, there are at least ten jobs available.

60. Based on Claimant’s restrictions, Elder

agreed that the weight limitation identified by

Claimant, the Health South FCE and Dr. Hawke is

consistent. As for repetitive movements, Dr. Hawke

did not clarify the term and the DOT does not utilize

the term. Instead, the DOT uses the terms “occa-

sional”, “frequent”, and “continuously”. To address the

definition of “repetitive”, Elder referred to an article,

“Ergonomics for Prevention of Musculoskeletal Dis-

orders” which stated that “repetitive” meant ‘per-

forming the same motion, a_ series of motions

continually or frequently for an extended period of

time”. A task is repetitive if “the same thing” is done

two thirds to the whole time of an eight-hour day. As

an example, writing for ten minutes at a time is not

repetitive. Elder interpreted Dr. Hawke’s restriction

to refer to individual repetitive tasks as distinguished

from other tasks that, individually, are not repetitive.

61. The food and beverage order clerk job

identified in Elder’s report did not require “repetitive”

upper extremity use. Likewise, Elder was of the

opinion that a cashier’s position did not require

“repetitive” upper extremity use.

App. 58

62. Claimant has transferable skills, including

communication, that do not require “repetitive” upper

extremity use. Elder agreed with Dr. Manuele to the

extent that two positions Elder identified for Claim-

ant did not require “repetitive” upper extremity use:

the customer complaint clerk and the manager of

credit and collection.

63. When asked to review the Health South

report and Claimant’s description of using an exercise

bike, Elder concluded that Claimant demonstrated an

ability to engage in “repetitive” upper extremity use

for certain periods of time not inconsistent with the

identified potential jobs. Ultimately, Elder was of the

opinion that Claimant is capable of earning wages in

the job market within her commutable labor market.

64. The expert vocational testimony of Meg

Turner-Elder was more thorough; based on more

study and research; based on more detailed meth-

odology; was more consistent with the aggregate

medical records; and, therefore, was more credible

and persuasive than the expert testimony of Dr.

Anthony Manuele.

65. When the vocational evidence is critically

weighed, it does not support a finding that Claimant

is incapable of earning any wages.

66. Elder indicated that Claimant’s restrictions

would require an employer to make a minor, special

accommodation. Specifically, Elder testified as fol-

lows:

App. 59

Q@ (frorn Respondent counsel) Okay. So

would a requirement that [Claimant] do

stretching exercises, during the course of a

day, would that constitute a special accom-

modation that an employer would have to

make?

A I believe it would.

The ALJ finds that such a non-specific, minor “ac-

commodation” does not rise to the level of rendering

employment “sheltered employment.” Indeed, un-

specified stretching exercises are more analogous to

activities within the sector of “personal comfort,” such

as bathroom breaks. Moreover, such a_ proposed

“accommodation” is so minor that it would not detract

to any significant degree from Claimant’s ability to do

any of the jobs identified by Elder.

ULTIMATE FINDINGS

67. Claimant has failed to prove, by a pre-

ponderance of the evidence that she is incapable of

earning wages in the competitive job market on a

reasonably sustainable basis.

68. Claimant has failed to prove, by a _ pre-

ponderance of the evidence that the situs of her

functional impairment transcends the admitted

upper extremities.

App. 60

CONCLUSIONS OF LAW

Based upon the foregoing Findings of Fact, the

ALJ makes the following Conclusions of Law:

Credibility and Burden of Proof

a. In deciding whether an injured worker has

met the burden of proof, the ALJ is empowered “to

resolve conflicts in the evidence, make credibility

determinations, determine the weight to be accorded

to expert testimony, and draw plausible inferences

from the evidence.” See Kroupa v. Industrial Claim

Appeal’s Office, 53 P.3d 1192, 1197 (Colo. App. 2002).

The same principles concerning credibility determina-

tions that apply to lay witnesses apply to expert

witnesses as well. See Burnham v. Grant, 24 Colo.

App. 131, 134 P. 254 (1913). The fact finder should

consider, among other things, the consistency or

inconsistency of a witness’ testimony and/or actions;

the reasonableness or unreasonableness (probability

or improbability) of a witness’ testimony and/or

actions (this includes whether or not the expert

Opinions are adequately founded upon appropriate

research); the motives of a witness; whether the

testimony has been contradicted; and, bias, prejudice

or interest. See Prudential Ins. Co. v. Cline, 98 Colo.

275, 57 P. 2d 1205 (19386); COLORADO JURY IN-

STRUCTIONS, CIVIL, 3:16 (2005). The fact finder

should consider an expert witness’ special knowledge,

training, experience or research (or lack thereof). See

Young v. Burke, 139 Colo. 305, 338 P. 2d 284 (1959).

App. 61

As found, the expert vocational testimony of Meg

Turner-Elder was more thorough; based on more

study and research; based on more detailed meth-

odology; more consistent with the aggregate medical

records; and, therefore, more credible and persuasive

than the expert testimony of Dr. Anthony Manuele.

b. The injured worker has the burden of proof,

by a preponderance of the evidence, of establishing

the entitlement to additional benefits, beyond those

admitted. Sections 8-43-201 and 8-43-2100, C.RS.

(2007). See City of Boulder v. Streeb, 706 P. 2d 786

(Colo. 1985); Faulkner v. Industrial Claim Appeals

Office, 12 P. 3d 844 (Colo. App. 2000); Lutz v. In-

dustrial Claim Appeals Office, 24 P. 3d 29 (Colo. App.

2000). A “preponderance of the evidence” is that

quantum of evidence that makes a fact, or facts, more

reasonably probable, or improbable, than not. Page v.

Clark, 197 Colo. 306, 592 P. 2d 792 (1979); People v.

M.A., 104 P. 3d 273 (Colo. App. 2004); Hoster v. Weld

County Bi-Products, Inc., W.C. No. 4-483-341 [In-

dustrial Claim Appeals Office (ICAO), March 20,

2002]. Also see Ortiz v. Principt, 274 F.3d 1361 (D.C.

Cir. 2001). As found, Claimant has failed to sustain

her burden of proof with respect to PPD beyond the

scheduled ratings of both upper extremities, admitted

by the Respondents. Also, as found, Claimant has

failed to meet her burden of proof with respect to

PTD.

App. 62

Additional Permanent Partial Disability

c. Claimant must prove that the situs of func-

tional impairment is not a part of the body contained

on the schedule. Langton v. Rocky Mountain Health

Care Corp., 937 P.2d 883 (Colo. App. 1996); Strauch v.

PSL Health Care Systems, 917 P.2d 366 (Colo. App.

1996); Yakovich v. Dayton Hudson, W.C. 4-638-044

[Industrial Claim Appeals Office (ICAO), May 9,

2007); Brewer v. General Motors, W.C. 4-163-770 & 4-

264-470 (ICAO, March 31, 1999). In determining the

situs of functional impairment, the ALJ should con-

sider the actual impairment rating Clark v. Kaiser

Hill Co., W.C. 4-510-204 (ICAO, June 3, 2004). As

found, the Claimant has made no reference to any

functional impairment aside from a singular ref-

erence to the bilateral CTS she sustained in her

wrists. There was no persuasive reference to any body

part beyond the hands and wrists. As further found,

Dr. Shih, the DIME examiner was of the opinion that

any cervical spine complaints are unrelated to the

admitted injury. As found, Dr. Hawke (the ATP) was

of the opinion that there was impairment only to the

hands and wrists as the result of bilateral CTS. He

found no impairment to a part of the body beyond the

schedule. In this regard, his opinion is supported hy

multiple nerve conduction studies that showed no

abnormalities beyond the wrists, Claimant’s subjec-

tive complaints of back pain are outweighed by the

opinions of Drs. Hawke and Shih as well as the

objective nerve conduction studies.

App. 63

Permanent Total Disability

d. An employee is permanently and _ totally

disabled if she is unable to earn any wages in the

same or other employment. Section 8-40-201(16.5)(a)

C.R.S. (2007). See Holly Nursing Care Center v.

Industrial Claim Appeals Office, 992 P.2d 701 (Colo.

App. 1999). In determining whether a claimant is

permanently and totally disabled, an ALJ may

consider the claimant’s “human factors,” including

the claimant’s age, work history, general physical

condition, education, and prior training and ex-

perience. Christie v. Coors Transportation Co., 933

P.2d 1330 (Colo. 1997); Weld County School District

RE-12 v. Byrnes, 955 P.2d 550 (Colo. 1998); Joslin’s

Dry Goods Co. v. Industrial Claim Appeals Office, 21

P.3d 866 (Colo. App. 2001). The test for permanent

total disability is whether employment exists that is

reasonably available to the claimant under her par

ticular circumstances. /d. This means whether

employment is available in the competitive job

market, which a claimant can perform on a rea-

sonably sustainable basis. Another human factor is a

claimant’s ability to obtain and maintain employment

within her physical abilities. See Professional Fire

Protection, Inc. v. Long, 867 P.2d 175 (Colo. App.

1993). This is because the ability to earn wages in-

herently includes consideration of whether a claimant

is capable of getting hired and sustaining em-

ployment. See Christie v. Coors Transportation Co.,

supra; Cotton v. Econ. Lube N Tune, W.C. No. 4-220-

395 (ICAO, January 16, 1997), aff'd, Econ. Lube N

App. 64

Tune v. Cotton (Colo. App. No. 97CA0193, July 17,

1997). Consequently, if the evidence shows the

claimant would not be physically able to sustain

employment, the ALJ need not find the claimant is

capable of earning wages. Joslins Dry Goods Co. v.

Industrial Claim Appeals Office, supra.

e. As found, Claimant unreasonably declined,

which is her right, CTS surgery when the chances of

success were approximately 85%. Viewed in that

light, her decision to decline the surgery was objec-

tively unreasonable and serves to bar a claim for

permanent total disability benefits. Industrial Com-

mission v. Vigil, 150 Colo. 356, 373 P.2d 308 (1962);

Cain v. Industrial Commission, 136 Colo. 227, 315

P.2d 823 (1957); Seals v. Samsonite Corp., W.C. 3-897-

180 (ICAO, January 2, 1990); Fries v. Pueblo County,

W.C. 3-826-911 (ICAO, September 15, 1989). As

found, Dr. Hawke recommended surgery and was of

the opinion that it would likely have led to further

improvement in her condition. Dr. Fremling recom

mended a right CTS release to improve Claimant’s

condition. Indeed, Claimant was scheduled for such

surgery. Instead, she decided to reject the surgery

despite reporting to Dr. Manuele that she would only

have a 5-20% chance that her symptoms could recur.

The flipside of that remark is that she had been

advised that she had an 84-95% chance that the

surgery would be successful without a recurrence of

the condition. As further found, Dr. Hawke’s opinions,

particularly the rejection of Gail Gerig’s FCE, do not

support the proposition that Claimant, more likely

App. 65

than not, cannot work and earn wages. Dr. Fremling

expressed no opinion regarding Claimant’s capacity to

work. Dr. Shih (the DIME) expressed no opinion

regarding Claimant’s capacity to work. The medical

evidence does not support the proposition that Claim-

ant is unable to work and earn wages. As found the

conflict between Dr. Manuele’s vocational opinions

and Meg Turner-Elder’s opinions was resolved in

favor of Meg ‘Turner-Elder’s vocational opinions.

When the vocational evidence is critically weighed, it

does not support a conclusion that Claimant is per-

manently and totally disabled within the meaning of

the Workers’ Compensation Act and the cases here-

inabove that further elaborate of the meaning of

“permanent total disability.”

f. Citing Crist v. Booth Land & Livestock, W.C.

No. 4-357-507 (ICAO, April 9, 1999), a decision of the

Industrial Claim Appeals Office that does not set

precedent, Claimant argues that Claimant’s refusal to

undergo the surgery recommended by Claimant’s

physicians was an affirmative defense that Respon-

dents had not plead and proven. Claimant proceeds to

claim surprise and a violation of Claimant’s due

¢

process rights by allowing this “affirmative defense”

to be “endorsed after the evidentiary hearing.” The

approach of this argument is disingenuous insofar as

it diverts the focus from Claimant’s burden of

establishing that she is permanently and _ totally

disabled. Indeed, as found, the Claimant cannot

unreasonably refuse recommended surgery, which

would more than likely render her capable of earning

App. 66

wages, and claim lifetime permanent total disability

benefits

ORDER

[T IS, THEREFORE, ORDERED THAT

A. Any and all claims for permanent total

disability benefits are hereby denied and dismissed.

B. Any and all claims for additional permanent

partial disability benefits are hereby denied and

dismissed and the Final Admission, dated December

29, 2006, is hereby affirmed and adopted as part of

this decision

DATED this 6 day of November 2007.

/s/ Edwin L. Felter

EDWIN L. FELTER JR

Administrative Law Judge

This decision of the Judge is final, unless a

Petition to Review this decision is filed within twenty

(20) days from the date this decision is mailed. Sec

tion 8-43-301(2), C.R.S. The Petition to Review must

be filed with the Office of Administrative Courts, 633

17th St, Suite 1300, Denver, CO 80202. See Rule 26,

OACRP, for further information regarding the pro

cedure to be followed when filing a Petition to Review

[Certificate Of Service Omitted In Printing]

App. 67

COLORADO COURT OF APPEALS

Court of Appeals No.: 0O8CA0923

Industrial Claim Appeals Office of the State of Colorado

WC No.: 4685483

Rosario Aviado,

Petitioner,

VS.

Industrial Claim Appeals Office of the

State of Colorado, Ensicon Corporation

and Wausau Insurance Corporation

Respondents.

ORDER OF COURT RE: PENDING MOTIONS

1. The division denies claimant’s motion to disqual-

ify. The fact, if it is one, that the judicial branch

has opposed the transfer of Administrative Law

Judges into the judiciary is not a basis to

conclude that the judges of this court, including

the division now assigned to the case, cannot be

impartial. The court denies as moot that part of

the motion that requests disqualification of Chief

Judge Davidson because Judge Davidson is not

slated to be a member of the panel deciding this

case. The court has no power to act on the motion

to the extent it prematurely moves to disqualify

Chief Justice Mary Mullarkey of the Colorado

8

App. 68

Supreme Court. The court denies and rejects any

remaining contentions or requests contained in

the motion to disqualify or any supplements

thereto.

The court grants the request for expanded oral

argument. Each party shall have thirty minutes

for oral argument.

The court denies the request to take judicial no-

tice of briefs filed in the cases cited in the briefs

and noted in claimant’s motion to supplement the

record.

The court denies the request to amend the open-

ing brief to include the argument that workers’

compensation claimants are a suspect class, re-

quiring a strict scrutiny level of review. The

issues are those framed by the Opening Brief,

except as set forth below.

The court defers a decision on claimant’s requests

concerning § 8-43-309, C.R.S. 2008, which in-

cludes the request for a ruling within thirty days

and the motion to-.vacate findings below and to

proceed in district court. The court will include a

disposition of these motions in its written opinion

that will follow oral arguments. At oral argu-

ment, the parties shall address the issues raised

in the motion and the response, including wheth-

er the statute is jurisdictional or directory. See

DiMarco v. Dep't of Revenue, 857 P.2d 1349 (Colo.

App. 1993); Burns v. Bd. of Assessment Appeals,

820 P.2d 1175 (Colo. App. 1991).

BY THE COURT:

Casebolt, J.

Roy, J.

Connelly, J.

February 10, 2009

Copies to: Counsel of Record

COLORADO COURT OF APPEALS

Court of Appeals No.: 08CA0923

Industrial Claim Appeals Office of the State of Colorado

WC No.: 4685483

Rosario Aviado,

Petitioner,

VS.

Industrial Claim Appeals Office of the

State of Colorado, Ensicon Corporation

and Wausau Insurance Corporation

Respondents.

ORDER OF COURT RE: PENDING MOTIONS

Claimant’s Motion for Reconsideration and Amend-

ment to Motion for Reconsideration are before the

court for ruling. Having considered the motions, the

court rules as follows:

1. Claimant asserts the court did not employ the

appropriate standard in denying the motion for dis-

qualification. The court disagrees. The statement in

the previous order that “The fact, if it is one” was

meant to convey that the court accepted that the

asserted fact was true. Even assuming that fact to be

true, the court perceived and continues to perceive no

appearance of impropriety that would require dis-

qualification.

App. 71

2. Claimant asserts that this court is the trial court

for purposes of hearing a constitutional challenge and

that we should allow amendments to “pleadings” to

raise new issues. We disagree. We sit as an appellate

court only. We do not find facts. Claimant could have

presented evidence in a declaratory judgment pro-

ceeding had she filed one or, alternatively, submitted

evidence to the ALJ in the administrative proceeding

by an offer of proof.

3. Claimant asserts that this court has neglected its

statutory mandate to give worker’s compensation

cases priority over other cases. The opinion of the

court in this case, issued contemporaneously with

this order, responds to and addresses the legal effect

of claimant’s assertion.

4. The court rejects any assertion that a ruling in

another case demonstrates some bias against the

arguments that claimant has made in this case. The

court continues to perceive no reason for disqual-

ification.

BY THE COURT:

Casebolt, J.

Roy, J.

Connelly, J.

April 16, 2009

Copies to: Counsel of Record

App. 72

Colorado Court of Appeals

2 East 14th Ave., Third Floor

Denver, CO 80203

Industrial Claim Appeals Office

WC4685483

Petitioner:

Rosario Aviado,

Vv.

Respondents:

Ensicon Corporation, Wausau

Insurance Corporation, and

Industrial Claim Appeals Office.

COPIES MAILED

TO COUNSEL

OF RECORD

Tr. Ct. Judge

Tr. Ct. Clerk

AND

ON ___ 05/14/09 __

BY _ [Illegible]

Court of Appeals

Case Number:

2008CA923

SE

ORDER DENYING PETITION FOR REHEARING

The PETITION FOR REHEARING filed in this

appeal by: Rosario Aviado, Petitioner

is DENIED.

Issuance of the Mandate is stayed until: June 15,

2009.

If a Petition for Certiorari is timely filed with the

Supreme Court of Colorado, the stay shall remain in

effect until disposition of the cause by that Court.

DATE: MAY 14, 2009

BY THE COURT:

Judge Casebolt

Judge Connelly

Judge Roy

App. 73

Colorado Supreme Court

2 East 14th Ave., Fourth Floor

Denver, CO 80203

Certiorari to the Colorado Court!

of Appeals, 2008CA923

Industrial Claim Appeals

Office, WC 4-685-483 |

Petitioner: Supreme Court Case

No: 2009SC454

Rosario Aviado,

Vv.

Respondents:

Industrial Claim Appeals Office

of the State of Colorado,

Ensicon Corporation, and

Wausau Insurance Corporation.

ORDER OF COURT

Upon consideration of the Petition for Writ of

Certiorari to the Colorado Court of Appeals and after

review of the record, briefs, and the judgment of said

Court of Appeals,

IT IS ORDERED that said Petition for Writ of

Certiorari shall be, and the same _ hereby is,

DENIED.

BY THE COURT, EN BANC, APRIL 5, 2010.

[SEAL]

[Certificate Of Service Omitted In Printing]

App. 74

Colo. Rev. Stat. § 8-1-102. Industrial claim ap-

peals office —- creation - powers and duties.

(1) There is hereby created in the office of the

executive director of the department of labor and

employment the industrial claim appeals office, which

may consist of five industrial claim appeals exam-

iners, who shall be appointed to serve on the indus-

trial claim appeals panel by the executive director

pursuant to section 13 of article XII of the state

constitution and the laws and rules governing the

state personnel system. Each industrial claim appeals

examiner shall exercise such examiner’s powers and

perform such examiner’s duties and functions in the

industrial claim appeals office within the office of the

executive director of the department as if transferred

thereto by a type 2 transfer as such transfer is de-

fined in the “Administrative Organization Act of 1968”,

article 1 of title 24, C.R.S. Decisions and orders of the

industrial claim appeals panel may be made by two

appeals examiners. In the event of a disagreement

between such two appeals examiners, a third appeals

examiner shall review the case, and the decision and

final order of the appeals panel shall reflect the

collective decision of all three appeals examiners.

(2) The industrial claim appeals panel has the

duty and the power to conduct administrative

appellate review of any order entered pursuant to

articles 43 and 74 of this title and to make a decision

on said appeal.

App. 75

Colo. Rev. Stat. § 8-40-102. Legislative declara-

tion.

(1) It is the intent of the general assembly that

the “Workers’ Compensation Act of Colorado” be inter-

preted 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 neces-

sity 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.

(2) The general assembly hereby finds that the

determination of whether an individual is an

emplovee for purposes of the “Workers’ Compensation

Act of Colorado” is subject to a great deal of specu-

lation and litigation. It is the intent of

This text is long and has been trimmed here. Open the source document for the complete record.