85 Sanchez v. Industrial Claim Appeals Office

COLORADO COURT OF APPEALS 2017COA71

Court of Appeals No. 16CA1085
Industrial Claim Appeals Office of the State of Colorado
WC No. 4-978-703-01

Michael Sanchez,

Petitioner,

v.

Industrial Claim Appeals Office of the State of Colorado, Denver Water, and
Travelers Indemnity Company,

Respondents.

ORDER AFFIRMED

Division IV
Opinion by JUDGE ASHBY
Hawthorne and Nieto*, JJ., concur

Announced May 18, 2017

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

Cynthia H. Coffman, Attorney General, Emmy A. Langley, Assistant Attorney
General, Denver, Colorado, for Respondent Industrial Claim Appeals Office

Ray Lego & Associates, Jonathan S. Robbins, Gregory W. Plank, Greenwood
Village, Colorado, for Respondent Denver Water

No Appearance for Respondent Travelers Indemnity Company

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2016.
¶1 The claimant in this case challenges the constitutionality of

portions of the Workers’ Compensation Act of Colorado, sections

8-40-101 to -55-105, C.R.S. 2016 (Act). Claimant, Michael

Sanchez, contends that using administrative law judges (ALJs) and

the Industrial Claim Appeals Office (Panel), from the state’s

executive branch, violates equal protection and the separation of

powers. He also challenges the constitutionality of section

8-43-404(5)(a)(II)(A), C.R.S. 2016, which exempts governmental

entities from providing an injured worker with a list of four

physicians from whom the worker may seek medical care for his or

her injury. Because we reject these constitutional arguments, and

are not persuaded by claimant’s remaining contentions, we affirm

the Panel’s decision denying and dismissing claimant’s request for

temporary disability benefits.

I. Background

¶2 Claimant works for Denver Water in the leak detection

department. On March 25, 2015, he sustained a back injury lifting

a hydraulic unit from his truck. He felt immediate back pain,

reported his injury, and was sent to an in-house clinic for treatment

and evaluation. Claimant described his injury as “pain to right low

1
back,” but a pain diagram he completed that day illustrated aching

and stabbing pain mid-way between his armpit and hip. Dr. Hugh

Macaulay, the part-time physician at the clinic, diagnosed claimant

with an injury to the “upper back (thoracic area) on the right side of

the body.”

¶3 A week later, Dr. Macaulay reported that claimant was “doing

markedly better than on his last visit.” Two and half weeks later,

claimant reported that his “pain is much less” and rated it “as 1-

1.5/10.” By May 13, 2015, claimant had been released to full duty

with no restrictions. Dr. Macaulay placed claimant at maximum

medical improvement (MMI) for his mid-back injury on June 3,

2015.

¶4 However, after he was placed at MMI, claimant complained of

“significantly more discomfort in his mid-back area.” An MRI of the

thoracic spine was “benign.” He also told his physical therapist a

day earlier that he had “excruciating” lower back pain.

¶5 Claimant returned for a follow-up visit with Dr. Macaulay in

July 2015 complaining of low back pain. He told Dr. Macaulay that

another physician had diagnosed “lumbar strain, thoracic strain

and depression.” But both Dr. Macaulay and a specialist concluded

2
that claimant’s lumbar strain was not work-related. Based on an

MRI study of claimant’s low back, Dr. Macaulay opined that

claimant’s low back pain was associated with “normal age-related”

degenerative changes.

¶6 Claimant sought temporary partial disability (TPD) benefits

from the date of his injury and temporary total disability (TTD)

benefits from June 2015 when his low back pain flared. But an

ALJ rejected claimant’s request for benefits, finding that his low

back pain was unrelated to his work injury. The ALJ also found

that because claimant had continued working, he had not suffered

a wage loss and therefore was not entitled to either TPD or TTD

benefits. On that basis, the ALJ denied and dismissed claimant’s

request for both TTD and TPD benefits. The Panel affirmed the

ALJ’s rulings, but it remanded the case to the ALJ to address

whether claimant was entitled to a change in his physician.

Claimant now appeals.

II. Issues Raised are Final for Purposes of This Appeal

¶7 We begin by addressing Denver Water’s assertion that

claimant’s appeal should be dismissed for lack of finality. Denver

Water argues that because the Panel remanded part of the ALJ’s

3
order for further consideration, the order was not final for appeal

and the appeal should be dismissed. We disagree.

¶8 Section 8-43-301(2), C.R.S. 2016, permits “[a]ny party

dissatisfied with an order that requires any party to pay a penalty

or benefits or denies a claimant any benefit or penalty [to] file a

petition to review with the division.” Thus, to be final and

appealable, an ALJ’s order “must grant or deny benefits or

penalties.” Flint Energy Servs., Inc. v. Indus. Claim Appeals Office,

194 P.3d 448, 449-50 (Colo. App. 2008); accord Ortiz v. Indus. Claim

Appeals Office, 81 P.3d 1110, 1111 (Colo. App. 2003).

¶9 Because the Panel affirmed the ALJ’s decision denying

claimant’s request for TPD and TTD benefits, that portion of the

ALJ’s order is final and appealable. We therefore turn to the merits

of claimant’s appeal. We first address claimant’s various

constitutional arguments, and then we consider his other claims for

relief.

III. Constitutional Challenges

A. Separation of Powers

¶ 10 Claimant argues that the separation of powers doctrine is

violated “by having workers’ compensation cases heard in the

4
executive branch.” He contends that “workers’ compensation cases

involve private rights that are properly heard by judicial branch

judges.” We are not persuaded.

¶ 11 “Article III of the Colorado Constitution prohibits one branch

of government from exercising powers that the constitution vests in

another branch.” Dee Enters. v. Indus. Claim Appeals Office, 89

P.3d 430, 433 (Colo. App. 2003). The “separation of powers

doctrine does not require a complete division of authority among

the three branches, however, and the powers exercised by different

branches of government necessarily overlap.” Id. Dee Enterprises

held that the statutory scheme for deciding workers’ compensation

cases does not violate the separation of powers doctrine and that

“review by this court of the Panel’s final orders for errors of law and

abuse of discretion is sufficient to protect the proper exercise of

judicial function.” Id. at 437.

¶ 12 Claimant nevertheless argues that the United States Supreme

Court cases on which Dee Enterprises relied, Thomas v. Union

Carbide Agricultural Products Co., 473 U.S. 568 (1985), and Crowell

v. Benson, 285 U.S. 22 (1932), directly contradict the principles

espoused in Dee Enterprises. But we conclude that Dee Enterprises

5
thoroughly and properly analyzed this issue and faithfully followed

the precedent of Thomas and Crowell.

B. Equal Protection

¶ 13 The Fourteenth Amendment to the United States Constitution

provides that “[n]o state shall . . . deny to any person within its

jurisdiction the equal protection of the laws.” Although the

Colorado Constitution does not contain an identical provision, “it is

well-established that a like guarantee exists within the

constitution’s due process clause, Colo. Const. art. II, sec. 25, and

that its substantive application is the same insofar as equal

protection analysis is concerned.” Qwest Corp. v. Colo. Div. of Prop.

Taxation, 2013 CO 39, ¶ 22 (quoting Lujan v. Colo. State Bd. of

Educ., 649 P.2d 1005, 1014 (Colo. 1982)), abrogated on other

grounds by Warne v. Hall, 2016 CO 50.

¶ 14 We address, and reject, each of claimant’s equal protection

challenges in turn.

1. Standard of Review

¶ 15 Claimant first asserts that his equal protection challenges

should be analyzed under a strict scrutiny standard, rather than

under a rational basis review.

6
Under equal protection law, judicial scrutiny of
a statute varies according to the type of
classification involved and the nature of the
right affected. The rational basis standard of
review applies when a legislative classification
does not involve a suspect class or
abridgement of a fundamental right triggering
strict scrutiny and also when the classification
does not trigger an intermediate standard of
review.

Culver v. Ace Elec., 971 P.2d 641, 645-46 (Colo. 1999) (citations

omitted). “A legislative enactment which infringes on a

fundamental right or which burdens a suspect class is

constitutionally permissible only if it is ‘necessary to promote a

compelling state interest,’ and does so in the least restrictive

manner possible.” Evans v. Romer, 882 P.2d 1335, 1341 (Colo.

1994) (quoting Dunn v. Blumstein, 405 U.S. 330, 342 (1972)), aff’d,

517 U.S. 620 (1996). In contrast, “[u]nder the rational basis

standard of review, a statutory classification will stand if it bears a

rational relationship to legitimate governmental objectives and is

not unreasonable, arbitrary, or capricious.” HealthONE v.

Rodriguez, 50 P.3d 879, 893 (Colo. 2002). Claimant asserts that

because his fundamental right to a fair hearing is threatened by

using non-judicially selected and retained ALJs and Panel

7
members, his claim should be analyzed under the strict scrutiny

standard.

¶ 16 But, “[n]ot all restrictions on fundamental rights are analyzed

under a strict scrutiny standard of review,” Rocky Mountain Gun

Owners v. Hickenlooper, 2016 COA 45M, ¶ 19, and, as Culver held,

“[r]eceipt of workers’ compensation benefits is not a fundamental

right.” Culver, 971 P.2d at 646. Indeed, we have found no case,

and claimant has not cited any to us, that analyzes workers’

compensation hearings under a strict scrutiny standard.

¶ 17 Cases cited by claimant do not persuade us that strict

scrutiny must be applied here. At least two of the cases do not

address the fundamental right to a fair hearing and therefore are

inapposite. See M.L.B. v. S.L.J., 519 U.S. 102, 116 (1996) (state

could not terminate mother’s fundamental right to parent without a

hearing on grounds that mother could not afford court costs);

Evans, 882 P.2d at 1343-44 (Amendment 2 was too broad and “not

narrowly tailored” to constitutionally accomplish its stated goals of

protecting the rights to freely practice religion, “personal privacy,”

and “familial privacy”).

8
¶ 18 A third case expressly holds that a pre-termination evidentiary

hearing is not required — and thus no fundamental right to a

hearing is violated — by the government using administrative

procedures to determine continued social security benefits. See

Mathews v. Eldridge, 424 U.S. 319, 340-42 (1976) (a claimant

seeking continued social security disability benefits is not entitled

to a pre-termination evidentiary hearing because social security

disability benefits are “not based upon financial need” and “other

forms of government assistance will become available where the

termination of disability benefits places a worker or his family below

the subsistence level”).

¶ 19 Accepting claimant’s argument that strict scrutiny analysis

applies could also lead to the absurd result that the standard would

apply whenever a litigant is dealt an unfavorable decision and then

asserts the hearing was unfair because it was conducted by an

allegedly unqualified or inadequately vetted judge.

¶ 20 Colorado courts have repeatedly held that workers’

compensation claimants are not a suspect class and that workers’

compensation benefits are not a fundamental right. See Dillard v.

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

9
Simpson v. Indus. Claim Appeals Office, 219 P.3d 354, 364 (Colo.

App. 2009), rev’d in part and vacated in part on other grounds sub

nom. Benchmark/Elite, Inc. v. Simpson, 232 P.3d 777, 778 (Colo.

2010); Kroupa v. Indus. Claim Appeals Office, 53 P.3d 1192, 1197

(Colo. App. 2002) (“[R]eceiving workers’ compensation benefits is

not a fundamental right.”). The rational basis test therefore applies

to equal protection challenges in the workers’ compensation

context, and claimant’s constitutional challenge should be assessed

under that standard. See Mathews, 424 U.S. at 349; Dillard, 134

P.3d at 413; Kroupa, 53 P.3d at 1197.

¶ 21 Under the rational basis test, “a statutory classification is

presumed constitutional and does not violate equal protection

unless it is proven beyond a reasonable doubt that the classification

does not bear a rational relationship to a legitimate legislative

purpose.” Pace Membership Warehouse v. Axelson, 938 P.2d 504,

506 (Colo. 1997). “[T]he burden is on claimant, as the challenging

party, to prove the statute is unconstitutional beyond a reasonable

doubt.” Pepper v. Indus. Claim Appeals Office, 131 P.3d 1137, 1139

(Colo. App. 2005), aff’d on other grounds sub nom. City of Florence v.

Pepper, 145 P.3d 654 (Colo. 2006).

10
¶ 22 In applying rational basis review, “we do not decide whether

the legislature has chosen the best route to accomplish its

objectives.” Dean v. People, 2016 CO 14, ¶ 13. Instead, “[o]ur

inquiry is limited to whether the scheme as constituted furthers a

legitimate state purpose in a rational manner.” Id.

2. Use of ALJs and Panel Members Who are Not Subject to
Selection by the Governor or Retention by the Voters Does Not
Violate Equal Protection

¶ 23 Claimant contends that the structure of the Division of

Workers’ Compensation — particularly its use of ALJs and the

Panel to resolve disputes — violates his and other workers’

compensation litigants’ rights to equal protection. Claimant

challenges the constitutionality of the selection process for Panel

members and the use of ALJs by asserting identical arguments.

Because these arguments overlap, we address them together.

¶ 24 Claimant contends that the state’s process for choosing and

retaining judicial officers is “carefully crafted to obtain fair and

impartial judges.” He suggests that he and other workers’

compensation litigants are forced to have their claims heard by a

potentially partial ALJ or tribunal, because ALJs and Panel

members are “appointed by the executive director of the department

11
of labor and employment[,] can serve forever,” and have not

undergone the careful vetting of judges appointed under article VI.1

This dichotomy between litigating civil suits and workers’

compensation claims, he argues, violates his and other workers’

compensation litigants’ right to equal protection. We disagree.

¶ 25 Claimant bears the burden of showing “that the classification

lacks a legitimate governmental purpose and, without a rational

basis, arbitrarily singles out a group of persons for disparate

treatment in comparison to other persons who are similarly

situated.” Dillard, 134 P.3d at 413. He identifies the class as all

civil litigants. But, as several divisions of this court have noted,

workers’ compensation litigants should not be lumped together with

civil litigants generally because

workers’ compensation cases are not ordinary
civil disputes between “private parties litigating
private rights” that must be resolved in the
courts. Rather, the parties in workers’
compensation proceedings have expressly
surrendered common law rights, remedies, and
proceedings in exchange for the benefits of the
Act — namely, compensation to the employee
for job-related injuries and immunity for the
employer from common law claims.

1 Judicial power in the State of Colorado is vested in the judicial
branch by article VI of the Colorado Constitution.

12
MGM Supply Co. v. Indus. Claim Appeals Office, 62 P.3d 1001, 1004

(Colo. App. 2002); see also Aviado v. Indus. Claim Appeals Office,

228 P.3d 177, 180-81 (Colo. App. 2009) (“[T]he General Assembly

essentially has determined that workers' compensation cases are

not civil cases that must be heard in a judicial court.”). We

therefore conclude that the class should be defined more narrowly

as comprising all workers’ compensation litigants, because parties

to workers’ compensation actions are subject to different rules and

a different statutory scheme than other litigants. See MGM Supply,

62 P.3d at 1004 (observing differences between litigants in

“ordinary civil disputes” and litigants in workers’ compensation

proceedings). Classified in this manner, it is clear that all workers’

compensation litigants, including claimant, are treated equally.

Also, using ALJs and the Panel — both of whom fall under

Colorado’s executive branch — to hear workers’ compensation

claims advances the Act’s goals of quickly and efficiently resolving

claims. § 8-40-102(1), C.R.S. 2016; see Simpson, 219 P.3d at 363;

MGM Supply, 62 P.3d at 1004. We conclude that advancing these

legitimate governmental goals is a sufficient rational basis for

13
employing executive branch ALJs and the Panel to decide workers’

compensation cases.

¶ 26 Claimant’s arguments here mirror those addressed and

rejected by other divisions of this court in two prior decisions: (1)

Youngs v. Industrial Claim Appeals Office, (Colo. App. No.

08CA2209, Nov. 19, 2009) (not published pursuant to C.A.R. 35(f))

(Youngs I);2 and (2) Youngs v. Industrial Claim Appeals Office, 2012

COA 85M (Colo. App. 2012) (Youngs II). In Youngs I, a claimant

argued that his fundamental right to a fair hearing was jeopardized

by the Division of Workers’ Compensation’s use of executive-

appointed ALJs rather than judicial branch officers. In Youngs II,

the same claimant argued that his rights to equal protection were

violated because ALJs and Panel members were “not appointed by

the Governor of Colorado for a term of years . . . and . . . not subject

to impeachment.” Youngs II, ¶ 48. The division in Youngs II relied

on the prior division’s decision as to the equal protection challenge

on the basis of the doctrines of law of the case and issue preclusion.

Further, relying on prior decisions of this court, Youngs I and II held

2 Although the policy of this court forbids citation by parties to
unpublished opinions, we cite to Youngs I to explain the procedural
history and to place the decision in Youngs II in context.

14
that the claimant’s constitutional rights were not violated. Youngs

II, ¶ 61. Youngs I and II show that, contrary to claimant’s

conclusory assertion, the arguments he raises here are not

“separate and distinct from arguments raised in prior cases.”

¶ 27 The prior decisions on which Youngs I and II relied apply

equally here. And, they provide precedential grounds for rejecting

the argument claimant now makes. See Aviado, 228 P.3d at 180-81

(because there is no fundamental right to recover damages in

district court, workers’ compensation claimants are not deprived of

a “fundamental constitutional right to a hearing in district court”);

Dee Enters., 89 P.3d at 434 (use of executive branch ALJs and the

Panel does not prevent “the judicial branch of government from

exercising power that is essential to its proper functioning”); MGM

Supply, 62 P.3d at 1004.

¶ 28 Claimant denounces these prior opinions as “wrongly decided”

and demands that they “be overturned.” Yet, he fails to articulate

any sound legal bases for doing so. We conclude that Aviado, Dee

Enterprises, and MGM Supply are well reasoned, and we find no

basis to disagree with their holdings. The same basic complaint

asserted in those three cases is argued here — that depriving

15
workers’ compensation claimants and respondents of access to

judicial branch hearings violates their constitutional rights. No

case cited by claimant, or any we have found, has held that

administrative hearings deprive workers’ compensation litigants of a

right to a fair hearing. To the contrary, the workers’ compensation

scheme of dispute resolution has been universally upheld.

¶ 29 Moreover, workers’ compensation litigants have access to

judicial review. Like the appellants in Aviado, Dee Enterprises,

MGM Supply, and Youngs I and II, claimant had a right — which he

exercised — to have his claim heard by a judicial branch appellate

court. “The General Assembly has explicitly made the exercise of

the powers conferred upon ALJs and the Panel subordinate to the

judiciary by providing for a review as of right by this court for errors

of law and findings of fact that are unsupported by the evidence.”

Dee Enters., 89 P.3d at 434. Thus, “[a]ny right [claimant] may have

to have [his] disputes considered by judges subject to popular vote

is protected by the provisions of the Act authorizing judicial review

by direct appeal to this court.” MGM Supply, 62 P.3d at 1004.

16
¶ 30 Accordingly, we reject claimant’s contention that his right to

equal protection was violated because his claim was heard by an

executive branch ALJ and the Panel.

3. The Industrial Claim Appeals Office’s Presence as a Party and
Representation by the Attorney General’s Office Do Not Violate
Equal Protection

¶ 31 Claimant next challenges the Panel’s dual roles as a decision-

maker and as a named litigant if a case is subsequently appealed to

this court. He contends that the Panel’s fluid roles can improperly

lead it to “magically transform back into an appellate tribunal,” a

“scenario [that] reeks of impropriety.” He claims further that

workers’ compensation claimants are the only litigants subjected to

this dichotomy, which wrongfully deprives him and other workers’

compensation litigants of equal protection. Again, we are not

persuaded.

¶ 32 The Act permits “[a]ny person in interest, including Pinnacol

Assurance, being dissatisfied with any final order of the division,

[to] commence an action in the court of appeals against the

industrial claim appeals office as defendant to modify or vacate any

such order on the grounds set forth in section 8-43-308.”

§ 8-43-307(1), C.R.S. 2016 (emphasis added). Thus, claimant was

17
following the legislature’s mandate to name the Panel as a

defendant when he appealed to this court.

¶ 33 First, workers’ compensation claimants are not the only

litigants who encounter the Panel as both decision-maker and

defendant. The Panel also appears as a defendant in

unemployment cases brought before this court. See § 8-74-107,

C.R.S. 2016.

The threshold question in an equal protection
challenge is whether the legislation results in
dissimilar treatment of similarly situated
individuals. To violate equal protection
provisions, the classification must arbitrarily
single out a group of persons for disparate
treatment from that of other persons who are
similarly situated.

Pepper, 131 P.3d at 1140.

¶ 34 Claimant asserts that workers’ compensation litigants are

treated unlike any other litigant and attempts to distinguish

workers’ compensation litigants from unemployment litigants. But

we perceive no fundamental distinction between these groups for

equal protection purposes.

¶ 35 And, contrary to claimant’s underlying assumption, this exact

dichotomy exists in the judicial branch, as well. Parties appearing

18
before article VI courts who are dissatisfied with an order may seek

immediate relief from the order in the supreme court under C.A.R.

21, and may name the lower court or judge as a party. See Colo.

State Bd. of Med. Exam’rs v. Colo. Court of Appeals, 920 P.2d 807,

814 (Colo. 1996) (holding under C.A.R. 21 that the court of appeals

exceeded its jurisdiction in issuing stay). In such actions, the

district court is generally represented by the Attorney General’s

Office. See, e.g., Pearson v. Dist. Court, 924 P.2d 512, 517 (Colo.

1996) (ordering trial court to vacate its orders for mediation); People

v. Dist. Court, 894 P.2d 739, 746 (Colo. 1995) (finding respondent

court erred by suppressing evidence obtained through discovery in

the prior civil proceeding). In fact, if a court or judge is named in a

C.A.R. 21 petition, the implication for conflicts could be more

serious than the types of conflicts claimant fears; unlike workers’

compensation or unemployment cases that name the Panel

generally, a C.A.R. 21 petition that names an individual judge is

likely to be returned to that same judge to preside over subsequent

proceedings. See Halaby, McCrea & Cross v. Hoffman, 831 P.2d

902, 908 (Colo. 1992) (holding that judge exceeded his jurisdiction

19
when he imposed sanctions against party and prohibited

enforcement of the sanction).

¶ 36 Still, even assuming there is disparate treatment of workers’

compensation litigants in requiring them to name the Panel as a

defendant in an appeal, we conclude such a requirement does not

violate equal protection. Requiring the Panel to be added as a

party, and permitting the Attorney General’s Office to represent the

Panel on appeal, is not arbitrary. The entire Act is designed to

“provide for the quick and efficient delivery of benefits to injured

claimants at a reasonable cost to employers.” Dworkin, Chambers

& Williams, P.C. v. Provo, 81 P.3d 1053, 1057 (Colo. 2003). The

requirement that the Panel be named as a party to any appeal

serves the Act’s legitimate and stated purpose of ensuring the

thorough and expeditious review and, as necessary, enforcement of

ALJ and Panel orders under the Act. Nevertheless, claimant insists

that workers’ compensation litigants are denied their right to a fair

hearing because they must appear before Panel members who are

biased because of their dual status as arbiters of claims and also as

parties in any appeal of those claims. He correctly asserts that the

Code of Judicial Conduct requires a judge to disqualify himself or

20
herself if he or she becomes a party to the proceeding, and that

another division of this court has held that the Code applies to ALJs

and Panel members. See C.J.C. 2.11; Kilpatrick v. Indus. Claim

Appeals Office, 2015 COA 30, ¶ 29 (“The C.J.C. thus

unambiguously and expressly applies to PALJs, ALJs, and Panel

members, contrary to claimant’s assertion.”). The Panel, however,

is not in the same position as those individual judges in the cases

on which claimant relies. The Panel is named as a collective body

and its members never appear in an individual capacity. We detect

neither actual partiality nor the appearance of partiality in this

arrangement.

¶ 37 A review of the cases cited by claimant illustrates this

distinction. Claimant cites to Venard v. Department of Corrections,

72 P.3d 446 (Colo. App. 2003), for the proposition that judges may

not become “advocates in a matter where they serve as judges.” In

Venard, however, unlike this case, the same individual served on a

decision-making board hearing a case brought by a plaintiff’s

counsel and then also represented the state against the same

plaintiff’s counsel in an unrelated matter. A division of this court

disqualified the board member from deciding cases involving the

21
plaintiff’s attorney because of the undeniable appearance of

impropriety. Id. at 450.

¶ 38 In contrast, Panel members who ruled on claimant’s case do

not appear as individual defendants and the Panel is represented on

appeal by counsel from the Attorney General’s Office. So, individual

Panel members are not in the same adversarial posture as the

board member described in Venard.

¶ 39 Claimant also relies on People v. Martinez, 185 Colo. 187, 523

P.2d 120 (1974). In that case the court found that, after the

prosecutor failed to appear for a hearing, the trial judge

assumed the role of the district attorney. The
court not only moved sua sponte for the
admission of the transcript of the preliminary
hearing into evidence, but called witnesses for
the People, examined them and cross-
examined defense witnesses. He made sua
sponte objections to defense counsel’s
questions and ruled on objections made to his
own questions — many leading ones.

Id. at 188-89, 523 P.2d at 120-21. These actions, the supreme

court determined, demonstrated that the trial judge was not

impartial but instead acted as “an advocate and not a judge.” Id. at

189, 523 P.2d at 121. The Panel in this case did not take any

similar actions; claimant named the Panel as a defendant as

22
required by section 8-43-307, and the Attorney General’s Office filed

a brief on the Panel’s behalf as anticipated by that statute.

Claimant cannot establish that the individual Panel members have

provided evidence or testimony in his case, or have personally

advocated the Panel’s position against his interests. The only

individuals who have presented the Panel’s position are members of

the Attorney General’s Office who have no role whatsoever in the

Panel’s decision-making functions.

¶ 40 There simply has not been a showing, as there was in Martinez

and Venard, that an individual Panel member has acted with any

partiality or appearance of impropriety. For these reasons, we

conclude that claimant has not established an equal protection

violation due to the Act’s requirement that the Panel be named as a

party. Pepper, 131 P.3d at 1140.

¶ 41 To the extent claimant asserts any impropriety or equal

protection violation from the Attorney General’s Office representing

the Panel, the argument is undeveloped. We therefore decline to

address it. See Meza v. Indus. Claim Appeals Office, 2013 COA 71,

¶ 38; Antolovich v. Brown Grp. Retail, Inc., 183 P.3d 582, 604 (Colo.

App. 2007) (declining to address “underdeveloped arguments”).

23
4. Section 8-43-404(5)(a)(II)(A) Does Not Improperly Single Out
Governmental Workers and Therefore Does Not Violate Equal
Protection

¶ 42 Claimant next challenges on equal protection grounds the

statute that obligates an employer to furnish an injured worker with

options for medical care. Section 8-43-404(5)(a)(I)(A) requires an

employer to “provide a list of at least four physicians or four

corporate medical providers or at least two physicians and two

corporate medical providers or a combination thereof where

available, in the first instance, from which list an injured employee

may select the physician who attends the injured employee.” A

later subsection of the statute carves out an exception for

governmental entities and health care providers. It provides as

follows:

If the employer is a health care provider or a
governmental entity that currently has its own
occupational health care provider system, the
employer may designate health care providers
from within its own system and is not required
to provide an alternative physician or
corporate medical provider from outside its
own system.

24
§ 8-43-404(5)(a)(II)(A). Claimant asserts that this exemption

deprives governmental workers of the right to select a physician in

violation of equal protection. We disagree.

¶ 43 “To successfully challenge a statute on equal protection

grounds, ‘the party asserting the statute’s unconstitutionality must

show that the classification lacks a legitimate governmental

purpose and, without a rational basis, arbitrarily singles out a group

of persons for disparate treatment in comparison to other persons

who are similarly situated.’” Zerba v. Dillon Cos., 2012 COA 78,

¶ 11 (emphasis added) (quoting Dillard, 134 P.3d at 413). By the

plain terms of the statute, governmental workers are not the only

group denied a list of four physicians. And if we determine that a

rational basis exists for excluding employees of governmental

entities and health care providers that have their own occupational

health care provider system from the four-physician requirement,

these groups are necessarily not “arbitrarily single[d] out . . . for

disparate treatment” from other injured workers. Zerba, ¶ 11

(emphasis added) (quoting Dillard, 134 P.3d at 413).

¶ 44 We conclude that a rational basis does exist for excluding

employees of governmental entities and health care providers from

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the four-physician referral requirement. Both health care providers

and governmental entities are more likely to have the expertise and

means to establish their own provider systems than other

employers. The legislature having determined that only these two

types of entities qualify for the exclusion is therefore not arbitrary

or irrational. And requiring employees of these entities to use

providers within those systems is consistent with the Act’s goals to

minimize costs while efficiently providing care and compensation to

injured workers. The fact that the statutory classification may

impact only employees of these two types of entities does not render

the classification unconstitutional. See Dillard, 134 P.3d at 414.

Claimant therefore cannot establish an equal protection violation

due to the physician referral exclusion.

IV. Non-Constitutional Challenges to Panel’s Order

¶ 45 Claimant asserts three non-constitutional arguments: (1) the

exemption from providing a list of four possible physicians did not

apply because Denver Water did not meet the requirements of

section 8-43-404(5)(a)(II)(A); (2) substantial evidence does not

support the ALJ’s factual findings; and (3) the ALJ made numerous

26
evidentiary errors. We are not persuaded to set aside the Panel’s

order by any of these arguments.

A. Denver Water Complies with Statutory and Regulatory
Requirements for Having Its Own Occupational
Health Care Provider

¶ 46 Claimant argues that Denver Water’s clinic does not meet

section 8-43-404(5)(a)(II)(A)’s criteria for an “occupational health

care provider system” because it does not have a full-time physician

at the clinic. Specifically, claimant contends that because Dr.

Macaulay is only present at the clinic two days per week and does

not supervise the clinic’s operations, Denver Water’s clinic does not

comply with the statutory and regulatory requirements for an on-

site health care facility. So, he maintains, Denver Water was not

statutorily exempt; should have provided him with a list of four

potential physicians; and, when it failed to do so, violated section

8-43-404(5)(a)(I)(A). We are not persuaded.

¶ 47 Section 8-43-404(5)(a)(II)(B) specifically states that in order for

a governmental entity or health care provider to be exempt under

the Act from listing four physicians, the on-site health care facility

must meet “all applicable state requirements to provide health care

services on the employer’s premises.” Id. The regulation governing

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this provision requires “the on-site facility [to] be under the

supervision and control of a physician, and a physician must be on

the premises or reasonably available.” Dep’t of Labor & Emp’t Rule

8-1(C)(1), 7 Code Colo. Regs. 1101-3 (emphasis added). We

conclude that Denver Water’s clinic adequately complies with these

requirements.

¶ 48 The regulation does not require that a physician be on the

premises at all times. Rather, so long as a physician is “reasonably

available” the statutory mandate is met. Dr. Macaulay works at the

clinic twice per week and can be reached at other times, as needed.

This meets the statutory requirements.

¶ 49 Dr. Macaulay does not have administrative authority over the

clinic’s nursing staff or other personnel. But, Dr. Macaulay

emphasized that he demands medical independence and is

available to the clinic nurses to answer their medical questions. In

other words, Dr. Macaulay exercises independent medical judgment

and provides medical supervision at the clinic even though he does

not provide any administrative supervision over the nursing staff

such as approving vacation time, hiring staff, or making other

personnel decisions.

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¶ 50 Claimant asserts that this is fatal to Denver Water’s clinic

qualifying as an on-site health care facility. But the Panel

interpreted Rule 8-1 as mandating that a physician be “responsible

for making the necessary medical determinations and does not refer

to the administrative supervision of employees such as scheduling

time off and personnel matters.” While we are not bound by the

Panel’s interpretation of the statute, and our review is de novo, we

give “considerable weight” to the Panel’s interpretation, Zerba, ¶ 35,

and do not set it aside “unless plainly erroneous or inconsistent

with such regulations.” Id. at ¶ 37 (quoting Jiminez v. Indus. Claim

Appeals Office, 51 P.3d 1090, 1093 (Colo. App. 2002)); see also

Anderson v. Longmont Toyota, Inc., 102 P.3d 323, 326 (Colo. 2004).

The Panel’s interpretation will therefore be set aside only “if it is

inconsistent with the clear language of the statute or with the

legislative intent.” Support, Inc. v. Indus. Claim Appeals Office, 968

P.2d 174, 175 (Colo. App. 1998). We conclude that the Panel’s

interpretation is reasonable and consistent with the legislative

intent. We therefore adopt it and apply it.

¶ 51 Nor are we persuaded by claimant’s argument that the clinic

does not comply with the statute because only one physician at a

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time is staffing it. Focusing on the statute’s use of the plural —

“the employer may designate health care providers” — claimant

reasons that section 8-43-404(5)(a)(II)(A) requires every clinic to

have more than one physician on-hand and available at any given

time. (Emphasis added.) We disagree.

¶ 52 Nothing in the statute suggests that multiple physicians must

be present at a clinic. Claimant cites to no authority for his

proposed interpretation and we have found none. The statute’s

plain language addresses an employer that “has its own

occupational health care provider system” — singular — and the

reference to designating “health care providers” within its own

system simply allows an exempted employer the flexibility to employ

or contract with one or more physicians. See § 8-43-404(5)(a)(II)(A).

¶ 53 Last, claimant argues that Denver Water effectively conceded

that Dr. Macaulay is not part of its occupational health care

provider system and waived its right to argue it had its own

occupation health care provider system. He claims this is so

because Denver Water objected when claimant’s counsel questioned

claimant about his conversations with Dr. Macaulay concerning

claimant’s impairment rating. As we understand claimant’s

30
reasoning, he contends that if Denver Water considered Dr.

Macaulay an employee, it could not object to his statements on

hearsay grounds because the testimony would be an admission by

a party opponent and therefore fall within an exception to the

hearsay rule. But Denver Water’s counsel objected to the questions

about claimant’s conversation with Dr. Macaulay because the

statements were not made for purposes of a medical diagnosis.

And, claimant’s counsel argued only that the doctor’s statements

were admissible as prior inconsistent statements. Neither party

laid the foundation for or characterized the statements as an

admission nor argued that the court should admit them as such.

So we find no basis to conclude that Denver Water made any

concession or waived its right to argue that its clinic qualified as an

on-site health care facility. For these reasons, we conclude that

Denver Water’s clinic complied with the requirements of section

8-43-404(5)(a)(II)(B) and Rule 8-1(C)(1).

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B. Substantial Evidence Supports the ALJ’s Conclusion that
Claimant’s Low Back Injury was Not Work-Related

¶ 54 Claimant next contends that the ALJ disregarded critical

evidence when he determined that claimant’s low back pain was

unrelated to his work injury. We disagree.

1. Governing Law and Standard of Review

¶ 55 “Proof of causation is a threshold requirement which an

injured employee must establish by a preponderance of the

evidence before any compensation is awarded.” Faulkner v. Indus.

Claim Appeals Office, 12 P.3d 844, 846 (Colo. App. 2000). The

issue of causation “is generally one of fact for determination by the

ALJ.” Id.; see also H&H Warehouse v. Vicory, 805 P.2d 1167, 1170

(Colo. App. 1990) (“The ALJ has great discretion in determining the

facts and deciding ultimate medical issues.”).

¶ 56 We must uphold the ALJ’s factual determinations if the

decision is supported by substantial evidence in the record. See

§ 8-43-308, C.R.S. 2016; Leewaye v. Indus. Claim Appeals Office,

178 P.3d 1254, 1256 (Colo. App. 2007) (“We are bound by the

factual determinations of the ALJ, if they are supported by

substantial evidence in the record.”); Wal-Mart Stores, Inc. v. Indus.

32
Claims Office, 989 P.2d 251, 252 (Colo. App. 1999) (“If substantial

evidence supports the ALJ’s conclusion that a claimant’s condition

is work-related, that determination may not be disturbed on

review.”). The reviewing court is bound by the ALJ’s factual

determinations even if the evidence was conflicting and could have

supported a contrary result. It is the fact finder’s sole province to

weigh the evidence and resolve any contradictions. Pacesetter Corp.

v. Collett, 33 P.3d 1230, 1234 (Colo. App. 2001); Metro Moving &

Storage Co. v. Gussert, 914 P.2d 411, 415 (Colo. App. 1995)

(reviewing court must defer to the ALJ’s credibility determinations

and resolution of conflicts in the evidence and may not substitute

its judgment for that of the ALJ).

2. Substantial Evidence Supports the ALJ’s Decision

¶ 57 Dr. Macaulay repeatedly testified that, in his opinion,

claimant’s low back pain was not related to his work injury. Even

though he acknowledged that other doctors had differing opinions,

Dr. Macaulay also expressed this opinion in a written report and

when questioned by Denver Water’s counsel. The ALJ could have

reached a different conclusion based on other available evidence.

But the mere fact that contrary evidence exists that could support

33
the opposite result is insufficient to justify setting aside an ALJ’s

order or the Panel’s decision affirming it. And, we may not reweigh

the evidence to reach a result contrary to the ALJ’s factual findings

if those findings are supported by evidence in the record. See

Pacesetter Corp., 33 P.3d at 1234; Metro Moving & Storage Co., 914

P.2d at 415.

¶ 58 The ALJ credited Dr. Macaulay’s testimony over other

witnesses’ testimony. And because Dr. Macaulay’s opinions

substantially support the ALJ’s factual finding that claimant’s low

back pain is not related to his work injury, we must uphold this

finding. See § 8-43-308; Leewaye, 178 P.3d at 1256; Wal-Mart

Stores, Inc., 989 P.2d at 252.

C. Other Alleged Evidentiary Errors Provide No Basis for Setting
Aside the Panel’s Decision

¶ 59 Last, claimant lumps together a number of “other issues,”

including “multiple evidentiary issues,” that he asserts “constitute

reversible error.” He implies that the Panel wrongly relied on

mootness to dispose of issues; argues that the “case should be

remanded for a determination regarding waiver”; asserts that the

final admission should be stricken because it “does not have an

34
impairment rating attached”; and claims that “multiple evidentiary

issues were raised.” None of these contentions provide a basis for

setting aside the Panel’s order.

¶ 60 Claimant suggests the ALJ committed an evidentiary error

that prevented him from impeaching Dr. Macaulay. As we

understand his argument, claimant sought to discredit Dr.

Macaulay with a contract purporting to show that Denver Water

only renewed Dr. Macaulay’s contract because he had reduced its

workers’ compensation costs. He contends that the ALJ “refused to

consider such evidence and ruled the information was irrelevant.”

¶ 61 The record reveals, however, that the contract in question was

admitted into evidence in its entirety. The ALJ was not required to

explicitly reference this contract to demonstrate that he had

considered it. An “ALJ operates under no obligation to address

either every issue raised or evidence which he or she considers to

be unpersuasive.” Magnetic Eng’g, Inc. v. Indus. Claim Appeals

Office, 5 P.3d 385, 389 (Colo. App. 2000). Moreover, an ALJ “is not

held to a crystalline standard in articulating his findings of fact”;

findings are sufficient if “we are able to discern from the order the

reasoning which underlies” it. Id. at 388.

35
¶ 62 Claimant offers nothing more than one or two conclusory

sentences, with no citations to legal authority, addressing his

remaining allegations of waiver, striking the final admission, and

“multiple” other evidentiary issues.

Our Court will not search through briefs to
discover what errors are relied on, and then
search through the record for supporting
evidence. It is the task of counsel to inform
us, as required by our rules, both as to the
specific errors relied on and the grounds and
supporting facts and authorities therefor.

Mauldin v. Lowery, 127 Colo. 234, 236, 255 P.2d 976, 977 (1953).

“Given the dearth of legal grounds offered,” we decline to address

claimant’s remaining arguments. Meza, ¶ 38; see also Antolovich,

183 P.3d at 604; Castillo v. Koppes-Conway, 148 P.3d 289, 291

(Colo. App. 2006) (a party who does not refer to evidence or

authority in support of an argument does not present a cogent

argument for review).

V. Conclusion

¶ 63 The Panel’s order is affirmed.

JUDGE HAWTHORNE and JUDGE NIETO concur.

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