Opposition Brief — Youngs v. Industrial Claim Appeals Office

ie Se

No. 10-273 | eae

SPP)

In The Lecmsarminounne |

Supreme Court of the Anited States

4

PATRICK YOUNGS,

Petitioner,

»

INDUSTRIAL CLAIM APPEALS OFFICE,

WHITE MOVING & STORAGE, INC.

and PINNACOL ASSURANCE,

Respondents.

On Petition For A Writ Of Certiorari

To The Colorado Court Of Appeals

*

BRIEF IN OPPOSITION OF RESPONDENTS

WHITE MOVING & STORAGE, INC.

AND PINNACOL ASSURANCE

HARVEY D. FLEWELLING

PINNACOL ASSURANCE

7501 East Lowry Blvd.

Denver, Colorado 80250

303-361-4977

harvey.flewelling@pinnaco)}.com

Attorney for Respondents

White Moving & Storage, Inc.,

and Pinnacol Assurance

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

OR CALL COLLECT (402) 342-2831

CORPORATE DISCLOSURE

Pinnacol Assurance is a political subdivision of

the State of Colorado. There are no parent corpora

tions or publicly held companies owning stock in

Pinnaco!] Assurance

White Moving & Storage, Inc., is a privately

held Colorado corporation. There are no parent

corporations or publicly held companies owning

stock in White Moving & Storage. Inc

TABLE OF CONTENTS

STATEMENT OF THE CASE |

REASONS FOR DENYING THE PETITION 6

I. The Colorado Court of Appeals Did Not

Misapply This Court’s Decisions Regard

ing Separation of Powers

Il. Petitioner’s Right to Equal Protectio1

Was Not Violated

IT] The Colorado Court ol Appeal Did Not

Krr in Denying Petitioner’s Motion for

Disqualification of Judge:

CONCLUSION

TABLE OF AUTHORITIES

Page

CCA 1D LAW

Alaska Public Interest Research Group v. State

167 P.3d 27 (Alaska 2007). 14

Bellendir v. Kezer, 648 P.2d 645 (Colo. 1982) 16

Christie v. Coors Transportation Co., 933 P.2d

1330 (Colo. 1997) 16

Commodity Futures Trading Comm'n v. Schor

478 U.S. 822 (1986) iB:

Crowell i sSerLSON. 28) [ Ss Zz \ 1932) pa SLT

Culver { Ace Flectruc G7] P??2d 641 (Colo 1999) hh

Dee Enterprise { ICAO. 89 P3d 430 (Colo

App 2004 passtm

Dillard v. Industrial Claim Appeals Office, 134

P3d 407 (Colo ZOO) )

In re Marrtage of Klmer, 936 P.2d 617 (Colo

App. 1997) 19

In re Marriavce Oo} Johnson 10 Colo App ZOU

576 P.2d 188 (1977) 19

Johnson District C'ourt H/4 P 2d 952 Colo

LYR6) 19

Kentucky Commission on Human Right

Fraser, 625 S.W.2d 852 (Ky. 1981) 14

Lindsley v. Natural Carbonic Gas Co... 220 U.S

61(1911) 15

Liteky v. Untted States, 510 U.S. 540 (1994 19

PABLE OF AU'THORITTI (continued

Mckay Neu Hamp Aire ( mper atto

Appeals Board, 732 A.2d 1025 (N.H. 1999)

MGM Supply Co ICAO. 62 P3d 1001 (Colo

App. 2002) 1Y

Mistretta v. United Stat 1H I {641 (1989

Vevada Industrial Comm'n v. Fee 60 P

Yay Ney 19 i)

Vorthe J si / fre i7 ( 7 irl } if AA,

thor Pipe / Sid ] ) | y() 19

86 F.2d 1103 (7th Cir. 1993 |

i / } ! j / ; ; { arbi ia \ ; fiiy j

( / ( 1 / Le 1 >}

Van rditum (orp O] Al Lerice |

(Lolo oD sO), Ped 14 BhY if)

Wierman v. Tunnell, 120 P2d 638 (Colo. 1942 iw

Williams v. White Mountain Constructions Co

[rie 749 P.2d 423 (Colo. 1988 ,

STATEMENT OF THE CASE

This case involves a claim for benefits made by

Petitioner pursuant to the Workers’ Compensation

Act of Colorado, Colo. Rev. Stat. § 8-40-101, et seq.

(2010) (the Act). On March 29, 2005, Petitioner sus-

tained a compensable injury when he tore his left

bicep tendon. Petitioner underwent two surgeries; the

second involved the use of a graft from Petitioner’s

left leg.

On May 4, 2006, Petitioner’s authorized treating

physician (ATP) determined Petitioner reached maxi-

mum medical improvement (MMI) from the effects of

the injury. The ATP assessed an impairment rating of

5% to the left upper extremity and 5% to the left

lower extremity. The ATP imposed work restrictions

pursuant to a functional capacity evaluation (FCE)

which found Petitioner could lift up to 30 pounds

occasionally and 20 pounds frequently (floor to waist),

as well as 40 pounds occasionally and 30 pounds

frequently (waist to shoulder). The FCE also stated

that Petitioner may push 67 pounds combined weight

with both arms, and may pull 73 pounds combined

weight with both arms.

On September 18, 2006, Petitioner underwent a

Colorado Division of Workers’ Compensation inde-

pendent medical examination (DIME) pursuant to

Colo. Rev. Stat. § 8-42-107(8)(c) (2010). The DIME

was administered through Med Ops Management,

Inc. (Med Ops), with which the DIME physician was

affiliated. Med Ops scheduled independent medical

y

examination appointments and made other arrange-

ments such as obtaining patients’ medical records,

collecting fees and providing a location for exam-

inations. The DIME physician issued a report on

September 27, 2006 in which she concurred with the

May 4, 2006 date of MMI. She rated Petitioner’s

impairment at 8% of the left upper extremity and 3%

of the left lower extremity.

The ATP was deposed on March 13, 2007. The

ATP reviewed a list of jobs created by a vocational

expert retained by Respondents. The ATP determined

that Petitioner could perform ten of the jobs, and

stated that Petitioner could perform work in a cate-

gory that falls between sedentary and light.

Respondents’ vocational expert relied on the re-

strictions provided by the ATP’s deposition: lifting

with both arms up to 30 pounds occasionally and

10-15 pounds frequently; no restrictions for the leg;

occasional] shoulder level or above reaching with left

arm; and no driving duties while working. The voca-

tional expert explained that Petitioner is able to

perform light to sedentary, full or part time work.

On May 2, 2007, a hearing was held before an

Administrative Law Judge (ALJ). The issues litigated

included permanent total disability (PTD), whether

Petitioner overcame the DIME physician’s impairment

rating thus affecting a permanent partial disability

(PPD) award, and whether Petitioner’s impairment is

scheduled under Colo. Rev. Stat. § 8-42-107(2) (2010),

or whole person under Colo. Rev. Stat. § 8-42-107(8)

3

(2010). The ALJ issued an order on July 11, 2007. The

ALJ held that Petitioner is not permanently and

totally disabled, Petitioner’s impairment resides on

the schedule, and Petitioner did not overcome the

DIME physiciar’s opinion regarding impairment

rating.

On May 15, 2007, accusations were made

through a local news channel that claimed the owner

of Med Ops modified medical reports previously

prepared by physicians and used the physician’s

electronic signature to “sign” the altered report.

Another accusation claimed that the Med Ops owner

asked physicians to change reports with the threat of

withholding business if the physician would not

comply. There is no evidence in the record substan-

tiating these accusations.

Petitioner appealed the ALJ’s July 11, 2007 order.

Petitioner also filed a motion for new hearing and to

strike the DIME. The ALJ issued a procedural order

dated August 22, 2007 and directed that a hearing be

convened regarding the motion. Petitioner was also

permitted to take the deposition of the DIME physi-

cian, who testified she was 90% certain that nothing

of substance was changed in tiie DIME report, and

that she did not think that anything substantive was

altered.

The hearing to consider the merits of Petitioner’s

motion for new hearing and to strike the DIME was

held on October 24, 2007. On January 8, 2008, the

ALJ issued an order denying Petitioner’s motion. The

ALJ found that Petitioner introduced no persuasive

evidence that Med Ops altered, or coerced the DIME

physician in altering, the DIME report. The ALJ

found that the DIME was not tainted despite the

allegations against Med Ops because Petitioner failed

to present persuasive evidence that the DIME report

was altered.

Petitioner appealed the January 8, 2008 order.

Petitioner’s two appeals were combined. The ALJ

issued a supplemental order on May 14, 2008. App.

44-63. Crediting Respondents’ vocational expert’s

testimony, the ALJ held that Petitioner failed to

establish that it is more likely than not that he is

unable to earn any wages in the same or other em-

ployment. The ALJ also found that Petitioner failed

to prove that the situs of his functional impairment is

beyond the right upper extremity or left lower ex-

tremity. The ALJ determined that Petitioner proved

he has impairment ratings of 8% of the left upper

extremity and 5% of the left lower extremity. The ALJ

noted that the DIME physician’s opinion was not

entitled to presumptive effect. and the ATP’s opinion

regarding the left lower extremity rating was more

persuasive than that of the DIME physician. The ALJ

ordered that Petitioner is not permanently and

totally disabled, Petitioner’s impairment resides on

the schedule, and Petitioner is entitled to PPD bene-

fits based on the scheduled ratings.

Petitioner appealed the ALJ’s supplemental!

order. On October 3, 2008, the Industrial Claim

)

Appeals Office of the State of Colorado (ICAO) af-

firmed. App. 29-43.

Petitioner sought judicial review from the Colo-

rado Court of Appeals. On March 18, 2009, Petitioner

filed a motion for disqualification of judges pursuant

to Colo. R. Civ. P. 97. App. 92-112. Petitioner request-

ed that judges from the judicial branch recuse them-

selves from hearing his case on the alleged grounds of

partiality, bias, and predisposition. Petitioner’s mo-

tion was purportedly supported by an affidavit by

Petitioner’s attorney Chris Forsyth. App. 98-111. On

April 8, 2009, the Colorado Court of Appeals denied

Petitioner’s motion. App. 64-65.

In an unpublished opinion announced on Novem-

ber 19, 2009, the Colorado Court of Appeals affirmed

the decisions of the ALJ and ICAO. App. 1-28. Among

other things, the Colorado Court of Appeals held that

Petitioner failed to meet his burden of demonstrating

beyond a reasonable doubt that the Act’s provision for

using AL.Js to hear workers’ compensation cases is

unconstitutional. Petitioner filed a petition for re

hearing. On February 18, 2010, the Colorado Court of

Appeals modified its opinion and denied Petitioner’s

petition for rehearing. App. 66-67.

Petitioner filed a petition for writ of certiorari

with the Colorado Supreme Court. The Colorado

Supreme Court denied Petitioner’s petition on May

24, 2010. App. 68.

6

REASONS FOR DENYING THE PETITION

Petitioner has not provided any compelling

reason for this Court to grant his petition for a writ

of certiorari. Sup. Ct. R. 10. Petitioner’s primary ar-

gument appears to be that the Colorado Court of

Appeals misapplied this Court’s prior decisions in

Crowell v. Benson, 285 U.S. 22, 51 (1932) and North-

ern Pipeline Construction Co. v. Marathon Pipe Line

Co., 458 U.S. 50 (1982) in holding that giving ALJs in

the executive department jurisdiction under Colo.

Rev. Stat. § 8-43-201 (2010) to hear workers’ com-

pensation cases in Colorado does not violate the sepa-

ration of powers provisions of either the Colorado or

United States Constitutions. Petitioner’s argument is

without merit and fails to justify certiorari review.

Petitioner further argues that the Colorado Court

of Appeals erred in concluding that § 8-43-201 does

not violate constitutional equal protection require-

ments because there is sufficient rational basis for

using ALJs to advance the legitimate governmental

goals of quick and efficient resolution of workers’

compensation claims. Whether there is a sufficient

rational basis for using ALJs to hear claims under the

Colorado Workers’ Compensation Act is not an im-

portant federal question. Petitioner fails to cite any

relevant decision of this Court or any other court with

which the decision of the Colorado Court of Appeals is

in conflict.

Finally, Petitioner maintains that his attorney’s

affidavit attached to his motion for disqualification of

7

judges establishes that the Colorado judicial branch

is the equivalent to the membership of a “prison

gang,” and that based upon alleged statements by two

members of the judiciary, the entire Colorado judicial

branch ts biased and thus Petitioner was denied a fair

and impartial tribunal in his workers’ compensation

appeal. Petitioner’s argument is based upon mere

suspicion, surmise, speculation, rationalization, conjec-

ture, or innuendo, and statements of mere conclusions

which may not form the basis of a legally sufficient

motion to disqualify. Petitioner has not established

any reason for granting a writ of certiorari to review

the denial of his motion for disqualification.

I. The Colorado Court of Appeals Did Not

Misapply This Court’s Decisions Regarding

Separation of Powers

Petitioner contends that the separation of powers

analysis of a panel of the Colorado Court of Appeals

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

2003), which was followed by the panel of the Colora-

do Court of Appeals in the instant case, is flawed in

determining that federal law allows for workers’

compensation proceedings to be heard by an executive

branch ALJ. Petitioner’s argument is summarized as

follows: (1) Crowell v. Benson, 285 U.S. 22, 51 (1932),

determined that workers’ compensation claims in-

volved private rights; (2) Northern Pipeline Construc-

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

held that suits that arose at common law regarding

private rights must be heard by an Art. III judicial

8

branch judge; (3) Thus, the Colorado Court of Appeals

violated the rulings of this Court by holding that the

Colorado workers’ compensation system involves

rights that are purely statutory, did not exist at

common law, and “has many characteristics of a

public rights case.” Dee Enterprises, 89 P.3d at 436-

437. Contrary to Petitioner’s contention, the holding

of the Colorado Court of Appeals in Dee Enterprises is

consistent with Art. III as well as the Court’s opinions

in Crowell, Northern Pipeline, and other precedents

such as Thomas v. Union Carbide Agricultural Prod-

ucts Co., 473 U.S. 568 (1985).

In Crowell, supra, the Court upheld the constitu-

tionality of agency adjudication of workers’ compensa-

tion claims, notwithstanding its determination that

workers’ compensation involves private rights. 285

U.S. at 51. Crowell determined that an administra-

tive tribunal may make findings of fact and render an

initial decision of legal questions as long as there is

adequate judicial review. Jd. at 51-65. In order to

ensure that the “essential attributes” of judicial

power remained in Art. III courts, Crowell insisted

upon de novo review of the agency’s determinations of

“Jurisdictional fact” as well as legal determinations.

Id. at 58-63. However, Crowell found Art. IIIT would be

satisfied by a review of the agency’s other fact finding

only upon the administrative record. /d. at 63-65; see

Fallon, Of Legislative Courts, Administrative Agen-

cies, and Article ITI, 101 Harv. L. Rev. 915, 924 (1988).

In Northern Pipeline, supra, the Court held

unconstitutional the authority granted to non-Art. III

9

bankruptcy judges under the Bankruptcy Act of 1978

to adjudicate common law rights. Northern Pipeline

stated that the Court’s precedents establish that only

controversies involving private rights may be re-

moved from Art. III courts and delegated to admin-

istrative agencies for their determination. 458 U.S. at

70. Perhaps incongruously, Northern Pipeline re-

affirmed Crowell and noted tha: therein the Court

had approved the use of administrative agencies as

adjuncts to Art. III courts. /d. at 77.

Northern Pipeline compared the unconstitutional

Bankruptcy Act with the approved administrative

workers’ compensation scheme in Crowell and deter-

mined that the bankruptcy courts were exercising

powers far greater than those lodged in the adjuncts

approved in Crowell. Id. at 78-86. The Colorado Court

of Appeals in Dee Enterprises, supra, 89 P.3d at 438,

made the same comparison between Colorado work-

ers’ compensation provisions and the portion of the

Bankruptcy Act found unconstitutional in Northern

Pipeline. Northern Pipeline noted that in Crowell, the

agency did not possess the power to enforce any of its

compensation orders, and was appealable to a district

court which had sole power to enforce it or set it aside

depending upon whether the agency order was in

accordance with the law and supported by evidence in

the record. 458 U.S. at 78. Northern Pipeline also

observed that Crowell involved the adjudication of

congressionally created rights. Jd. Northern Pipeline

further noted the agency in Crowell “made only

specialized, narrowly confined factual determinations

10

regarding a particularized area of the law” that were

“statutorily channeled,” that such agency “possessed

only a limited power to issue compensation orders

pursuant to specialized procedures, and its orders

could be enforced only by order of the district court,”

and that such orders would be set aside if not sup-

ported by the evidence. /d. at 85.

‘The Court decided Thomas v. Union Carbide Ag-

ricultural Products Co., 473 U.S. 568 (1985) against a

backdrop of criticism regarding the plurality opinion

of Northern Pipeline. See Fallon, supra, 101 Harv. L.

Rev. at 929. Recognizing that a strict construction of

Art. III was not possible “in this area of ‘frequently

arcane distinctions and confusing precedents,” the

Thomas Court upheld as constitutional the power

granted to non-Art. III arbitrators to make final

decisions on compensation claims submitted to the

Environmental Protection Agency, subject to review

by an Art. III court only for “fraud, misrepresenta-

tion, or other misconduct.” The Court stated that

pursuant to its constitutional powers under Art. I,

Congress “may create a seemingly ‘private’ right that

is so closely integrated into a public regulatory

scheme as to be a matter appropriate for agency

resolution with limited involvement by the Art. III

judiciary.” Thomas, supra, 473 U.S. at 593-594.

The Court distinguished Thomas from Northern

Pipeline on the basis that the right to compensation

under the statutory scheme in T’homas did not re-

place a right to such compensation under traditional

common law. Id. at 584. The Court was persuaded

1]

that the statutory scheme did not violate separation

of powers because, although the dispute involved two

private parties, it had many of the characteristics of a

public rights case. Thomas noted that the rights

asserted were purely statutory and arose from a

regulatory scheme designed to promote the public

purpose of safeguarding the public health. /d. at 589

The Colorado Court of Appeals in Dee Enterprises

v. ICAO, 89 P.3d 430, 436 (Colo. App. 2003), deter

mined that the workers’ compensation scheme at

issue is similar to the regulatory scheme in 7’homas

in that the rights provided by the Act are purely

statutory and, contrary to the argument of Petitioner

here, did not exist at common law. This also is con

sistent with other states’ workers’ compensation

schemes. See, e.g., McKay v. New Hampshire Com

pensation Appeals Board, 732 A.2d 1025, 1029 (N.H

1999). Dee Enterprises remarked that prior to the Act,

employees injured in the course of employment were

required to prove negligence on the part of their

employer in order to recover for injuries. Since the

Act was enacted, employees may recover compensa

tion from their employers for job-related injuries

regardless of fault. 89 P.3d at 436. The Act also de

fines both the terms of compensation to the injured

employee and the procedures for arriving at the

proper amount of compensation. /d. at 437. ALJs and

the ICAO possess only such power as is conferred

upon them by the Act, and they cannot exercise any

jurisdiction, exert any powers, perform any duties, or

12

assume any authority unless the right so to do is

given them by statute. /d.

Dee Enterprises determined that, as in Thomas,

supra, “the Colorado workers’ compensation scheme

has many characteristics of a public rights case and

serves the legitimate purpose of safeguarding the

public health.” /d. The Colorado Court of Appeals

concluded that granting ALJs and ICAO the task of

hearing and determining workers’ compensation

matters “does not diminish the likelihood of impartial

decisonmaking |sic], nor does it threaten the role of

the judiciary,” and that “|tlo hold otherwise would

‘defeat the obvious purpose of the legislation to fur

nish a prompt, continuous, expert and inexpensive

method for dealing with a class of questions of fact

which are peculiarly suited to examination and

determination by an administrative agency specially

assigned to that task.’” Jd. (citing Thomas and quot

ing Crowell)

Petitioner here points out that Thomas did not

overturn Crowell’s holding that workers’ compensa

tion matters involved private rights. However, this is

a distinction without a difference. Petitioner over

looks the fact that neither Northern Pipeline nor

Thomas overturned the Court’s analysis in Crowell

approving administrative adjudication of workers’

compensation claims, subject to judicial review, de-

spite the existence of private rights.

Dee Enterprises further interpreted Thomas as

not requiring de novo review of the agency findings,

and review by the Colorado Court of Appeal: ol

ICAO’s final orders for errors of law and abuse of

discretion “is sufficient to protect the proper exercise

of judicial function.” /d.; see Colo. Rev. Stat. § 8-43

308 (2010) (listing grounds for setting aside agency

orders). This interpretation ts also consistent with the

observation by the Court in Northern Pipeline, supra

that de novo judicial review of “jurisdictional” and

“constitutional” facts has been undermined by late:

cases. See 458 U.S. at 82, n. 34. The Dee enterprise

court stated that this scheme “is consistent with the

purpose of the Act, which 1s to avoid congestion of the

courts with piecemeal litigation and to provide a

method whereby claims arising out of work-related

Injuries can be resolved in a just and speedy manne!

RY P3d at 437

Dev Ienterprise also rejected the aryument that

itis a violation of Art. III to deny parties to worker

compensation proceedings the option to consent to an

adjudication by an ALJ. /d. at 437-438. Petitioner

here does not cite any authority to establish that such

an option } required to avoid an Art. IIT violation, but

merely cites a case, Commodity Futures ‘Tyadinp

Comm'n v. Schor, 478 U.S. 822 (1986). in which the

regulatory scheme at issue did provide uch an Op

tion. Moreover, Dee Knterprises pointed out that “the

Colorado Act, like the agency modei approved in

Crowell and Schor, deals with only a particularized

area of law, and the rights to be adjudicated in th

employer-employee relation hip are of preat WN por

tance to the publi health and welfare in that the

14

provide a method by which workers” compensation

matters may be speedily and justly resolved” consist

ently with the purpose of the Act, which is to provide

quick and efficient delivery of benefits to injured

workers at a reasonable cost to employers, without

the necessity of any litigation. 89 Psd 43%) see Colo

Rev. Stat. § &-40-102 (2010) (stating the lepishaitive

intent of the Act)

Workers’ compensation is an area of law that ha

been subject to administrative adjudication for a

considerable period of time. Alaska Publre Interest

Reesearch G;roup f State. 167 PSdd 27, be (Alaska

2007). In most jurisdictions inp the United State

workers’ compensation claims are processed through

administrative ayences, and such systems are almost

universally held constitutional even though they

utilize administrative apencies, do not provide for

trials by jury, and involve only private disputes. See

Plasti-Line Inc. vo. Tennessee Human Riphts Conan

sion. 746 S.W.2d 691, 698 CTenn. 19BR) Kentucky

Commission on Human Riphts oo Fraser, 625 S.Wo2d

ROY 54-855 (Ky 1981): Nevada Industrial Comin

vw. Reese, 560 PY2d 1452, doo, nm. 6 (Nev 1977) A

demonstrated by Thonia: Mapra, and Miustretta ¢

United States, 488 U.S. 361, 381 (1989), the Court

has more recently emphasized a “flexible understand

ing. of separation of powers.” See also himiat o LTT

Kederal Ilectrical International, 986 kY%d 1LIOS8, LLO9

1110 (7th Cir. 1993) Collowing Thomas and other

more recent decisions of the Court regarding Art. TID)

15

Petitioner here wants a return to a rigid and

unworkable system that is out of touch with the

needs and practices of the modern administrative

state for agencies to adjudicate private as well as

public disputes. This request must be denied.

II. Petitioner’s Right to Equal Protection Was

Not Violated

Petitioner argues that § 8-43-201, which provides

executive branch ALJs with jurisdiction to hear and

decide workers’ compensation matters, violates his

right to equal protection. Generally, the provisions of

the Act are presumed constitutional and the burden

rests with the party challenging them to prove un-

constitutionality beyond a reasonable doubt. Lindsley

v. Natural Carbonic Gas Co., 220 U.S. 61, 78-79 (1911):

Williams v. White Mountain Constructions Co., Inc.,

749 P.2d 423, 4380 (Colo. 1988). Petitioner has made

no such showing here to justify certiorari review.

Petitioner’s equal protection rights were not vio-

lated. The receipt of workers’ compensation benefits

is not a fundamental right. Dillard v. Industrial

Claim Appeals Office, 134 P.3d 407, 413 (Colo. 2006).

Petitioner has not shown he is a member of a suspect

classification. Accordingly. a rational basis analysis

must be applied. San Antonio Independent School

District v. Rodriguez, 411 U.S. 1, 40 (1973); Culver v.

Ace Electric, 971 P.2d 641, 646 (Colo. 1999). The chal-

lenged provision will be allowed to stand if it bears a

rational relationship to a legitimate governmentai

16

objective and is not unreasonable, arbitrary or capri-

cious. If any conceivable set of facts would lead to the

conclusion that the challenged provision serves a

legitimate purpose, the interpreting court must as-

sume those facts exist. Christie v. Coors Transporta-

tion Co., 933 P.2d 1330, 1333 (Colo. 1997).

The Colorado General Assembly intended the Act

to “assure the quick and efficient delivery of disability

and medical benefits to injured workers at a reason-

able cost to employers, without the necessity of any

litigation.” Colo. Rev. Stat. § 8-40-102(1) (2010). The

purpose of the Act is to protect employees who sustain

injuries arising from employment. Vanadium Corp. of

America v. Sargent, 134 Colo. 555, 562, 307 P.2d 454,

459 (1957). This purpose is effectuated by providing a

reliable source of income without the need of proving

fault and providing a framework within which claims

are speedily resolved. Bellendir v. Kezer, 648 P.2d

645, 647 (Colo. 1982). The administrative law struc-

ture allows for the speedy resolution of workers’

compensation claims without the necessity of proving

fault. Contrary to Petitioner’s contention, the Aci and

its use of ALJs exist for many more reasons than

merely “administrative convenience.”

Petitioner questions the conclusion of the Colo-

rado Court of Appeals below that using ALJs to hear

workers’ compensation claims advances the Act’s

goals of quick and efficient claims resolution. Peti-

tioner asserts that because the Act includes in its

appellate procedures the

.

‘extra step” of review by the

ICAO, the Colorado workers’ compensation scheme

“takes longer than other actions.” Petitioner provides

no evidentiary or legal support for this assertion.

Petitioner also overlooks the expedient timelines and

other streamlined processes that pervade the Act.

See, e.g., Colo. Rev. Stat. § 8-43-207(1)(e) (2010)

(limiting discovery); Colo. Rev. Stat. § 8-43-209 (2010)

(hearings shall commence within 100 days after the

hearing is set, and only one extension of time of 60

days te commence the hearing is permitted); Colo.

Rev. Stat. § 8-43-215 (2010) (ALJ has 15 working days

after the conclusion of a hearing to issue a written

order); Colo. Rev. Stat. § 8-43-301 (2010) (a petition to

review must be filed within 20 days of the mailing of

an order, briefs must be filed within 20 days, ALJ has

30 days after briefs to issue supplemental order,

ICAO has 60 days after receipt of record to issue

order); Colo. Rev. Stat. § 8-43-302 (2010) (ALJ has 30

days from entry of an order to issue a corrected

order); Colo. Rev. Stat. § 8-43-3809 (2010) (Colorado

Court of Appeals directed to hear appeal within 30

days); Colo. Rev. Stat. § 8-43-313 (2010) (Colorado

Supreme Court directed to advance workers’ compen-

sation cases on its calendar and render final decision

within 60 days). Moreover, unlike Art. III judges,

ALJs are presumed to possess special expertise and

competence in dealing with the medical evidence that

is a ubiquitous part of workers’ compensation cases.

See Wierman v. Tunnell, 120 P.2d 638, 640 (Colo.

1942).

Because Petitioner has not shown beyond a rea-

sonable doubt that the current adjudicative provisions

18

of the Act fail to serve the legitimate purposes of the

Act, his equal protection argument is without merit.

Petitioner has advanced no legitimate argument to

support the disturbance of the well-established law.

He has not shown beyond a reasonable doubt that

§ 8-43-201, which provides ALJs exclusive jurisdictien

to hear and decide entitlement to workers’ compensa-

tion benefits, is unconstitutional. Petitioner has failed

to demonstrate the existence of any important federal

questions or meaningful conflict in appellate opin-

ions. Thus, certiorari review is unwarranted.

Ili. The Colorado Court of Appeals Did Not Err

in Denying Petitioner’s Motion for Disqual-

ification of Judges

Petitioner asserts that the Colorado Court of

Appeals below has an “appearance of impropriety”

and erred in rejecting the facts alleged by Petitioner's

attorney's affidavit in support of the motion for

disqualification of judges. Petitioner has attempted

to relate purported “partiality, bias and predisposi-

tion” of the entire “judicial branch” specifically to

Chief Justice Mullarkey of the Colorado Supreme

Court and Chief Judge Davidson of the Colorado

Court of Appeals. Contrary to Petitioner’s motion,

the affidavit of Chris Forsyth does not demonstrate

that Chief Justice Mullarkey and Chief Judge

Davidson “have acted with particular malice toward

the issue of workers’ compensation judges being

in the judicial branch.” Nothing ‘in the affidavit of

Chris Forsyth states facts, even if true, from which

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it may reasonably be inferred that they have bias or

prejudice that will prevent them from dealing fairly

with Petitioner. The “facts” set forth in affidavit are

legally insufficient because they are based on mere

suspicion, surmise, speculation, rationalization, con-

jecture, or innuendo, and are statements of mere

conclusions of the pleader which may not form the

basis of a legally sufficient motion to disqualify.

See Johnson v. District Court, 674 P.2d 952, 956

(Colo. 1986).

Regarding Chief Justice Mullarkey, Mr. Forsyth

merely recites hearsay of purported statements she

made and the fact that she participated in the denial

of certiorari in MGM Supply Co. v. ICAO, 62 P.3d

1001 (Colo. App. 2002), in which Mr. Forsyth was an

attorney for the unsuccessful petitioners. Regarding

Chief Judge Davidson, Mr. Forsyth cites her opinion

in Dee Enterprises, supra, in which Mr. Forsyth again

was an attorney for the unsuccessful petitioners.

Affidavits that contain only opinions and hearsay

statements do not establish any bias or prejudice. See

In re Marriage of Elmer, 936 P.2d 617, 619-620 (Colo.

App. 1997). Adverse rulings alone do not constitute

evidence of prejudice or bias warranting disqualifica-

tion of a judge. Liteky v. United States, 510 U.S. 540,

555 (1994); Jn re Marriage of Johnson, 40 Colo. App.

250, 252, 576 P.2d 188, 190 (1977).

Petitioner failed to establish any basis for dis-

qualification of judges, or any important question of

federal law. Petitioner has not established any reason

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to warrant certiorari review of the denial of his

motion for disqualification.

CONCLUSION

For all of the foregoing reasons, Respondents

respectfully request that the Court deny the Petition.

Respectfully submitted,

HARVEY D. FLEWELLING

PINNACOL ASSURANCE

7501 East Lowry Blvd.

Denver, Colorado 80230

303-361-4977

harvey.flewelling@pinnacol.com

Attorney for Respondents

White Moving & Storage, Inc.,

and Pinnacol Assurance