# Petition for Writ of Certiorari — Aviado v. Industrial Claim Appeals Office > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_2200%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2010 - **Citation:** 562 U.S. 892 ## Text Supreme C 1) p me ourt US. Ne... 9-34 JUL § - 2010 ~~ OFFICE OF THE CLERK In The Supreme Court of the United States ROSARIO AVIADO, ) wat [ CULTLOTLE ‘ ~ INDUSTRIAL CLAIM APPEALS OFFICE, e? adZ., Respondents ‘climactic — On Petition For A Writ For Certiorari To The Colorado Court Of Appeals ies WN eeaeeticeenemensamed 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] ay. i ae es een ESE sedeisaxess SU 2 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_2200%3A1. Public record. Not legal advice.