v. ICAO

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.

SUMMARY
June 17, 2021

2021COA83

No. 20CA1475, Browne v. ICAO — Labor and Industry —
Workers’ Compensation — Benefits — Limits on Temporary and
Permanent Partial Disability Payments — Effect of Previous
Injury or Compensation

A division of the court of appeals considers the relationship

between section 8-42-107.5, C.R.S. 2020 (capping disability

benefits based on an injured worker’s “impairment rating”), and

section 8-42-104(5)(a), C.R.S. 2020 (apportioning benefits for

successive injuries to the same body part), of the Workers’

Compensation Act. The division concludes that the applicable

statutory disability cap is determined not by combining, but by

separately calculating, the “impairment ratings” for each injury.
COLORADO COURT OF APPEALS 2021COA83

Court of Appeals No. 20CA1475
Industrial Claim Appeals Office of the State of Colorado
WC No. 5034884

Timothy Browne,

Petitioner,

v.

Industrial Claim Appeals Office of the State of Colorado and City of Colorado
Springs, Colorado,

Respondents.

ORDER AFFIRMED

Division I
Opinion by JUDGE DAILEY
Freyre and Yun, JJ., concur

Announced June 17, 2021

Franklin D. Azar & Associates, P.C., Robert Turner, Colorado Springs,
Colorado; The Elliott Law Offices, P.C., Mark D. Elliott, Alonit Katzman,
Arvada, Colorado, for Petitioner

No Appearance for Respondent Industrial Claim Appeals Office

Dworkin, Chambers, Williams, York, Benson & Evans, P.C., Gregory K.
Chambers, Denver, Colorado, for Respondent City of Colorado Springs

The McCarthy Law Firm, P.C., John D. McCarthy, Arvada, Colorado, for
Amicus Curiae Colorado Workers’ Compensation Education Association
¶1 The Workers’ Compensation Act (Act) limits the amount of

temporary and permanent partial disability benefits awardable to

an injured worker, depending upon an injured worker’s

“impairment rating.” § 8-42-107.5, C.R.S. 2020. In 2016, when

this claimant’s benefits were calculated, for injuries sustained with

impairment ratings of 25% or less, temporary and permanent

disability benefits were capped at $86,697.04; for injuries sustained

with impairment ratings greater than 25%, temporary and

permanent disability benefits were capped at $173,391.90.1

¶2 What happens when a worker suffers multiple, compensable

work-related injuries that cumulatively — but not individually —

produce an impairment rating greater than 25% to the same body

part?

1 These figures ($86,697.04 and $173,391.90) are not found in
section 8-42-107.5, C.R.S. 2020; other figures are. But that
provision instructs the director of the Division of Workers’
Compensation (division) to adjust the disability caps annually “by
the percentage of adjustment made by the director to the state
average weekly wage pursuant to section 8-47-106[, C.R.S. 2020].”
§ 8-42-107.5. The date of a claimant’s injury determines which
benefits caps will apply. The parties on appeal, as well as the
Industrial Claim Appeals Office (Panel) and the administrative law
judge (ALJ), agree that $86,697.04 and $173,391.90 accurately
represent the lower and higher benefits cap numbers for injuries
sustained in 2016.

1
¶3 The Act mandates an apportionment between injuries: “In

cases of permanent medical impairment,” a claimant’s award or

settlement “shall be reduced” by “deduct[ing] from the permanent

medical impairment rating for [a] subsequent injury” the

“permanent medical impairment rating[s] applicable to the previous

injur[ies] to the same body part.” § 8-42-104(5)(a), C.R.S. 2020.

¶4 The Act does not explicitly articulate how and when the

reduced benefits via apportionment should be calculated. The

present case asks us to resolve this question: Should the final

apportioned impairment rating be calculated first, resulting in the

application of the lesser benefits cap, or should the benefit be

calculated based on the combined rating and then reduced by

subtracting earlier awards?

¶5 Because we conclude that an apportioned “impairment rating”

should be calculated first, we affirm the decision of the Panel

upholding the order of an ALJ limiting the claim to the lower

statutory benefits cap.

I. Background

¶6 Claimant, Timothy Browne, worked as a law enforcement

officer for the City of Colorado Springs (the City). In 2007, he

2
sustained an injury to his cervical spine “during defense tactic

training.” He reached maximum medical improvement (MMI) for

that injury in January 2010 with a permanent impairment rating of

6% of the whole person but with no restrictions. The City admitted

to the 6% injury and paid claimant permanent partial disability

(PPD) benefits having a present value of $31,577.95 for the 2007

injury.

¶7 In July 2016, claimant sustained a second work-related injury

to the same body part, his cervical spine. He reached MMI for this

injury in April 2019. The City filed a final admission of liability

(FAL) admitting to an impairment rating of 25% of the whole person

based upon the treating physician’s impairment rating calculation.

Claimant underwent a division-sponsored independent medical

examination (DIME). The DIME physician agreed with the treating

physician that claimant reached MMI in April 2019, but the DIME

physician calculated claimant’s impairment rating to be 26% of the

whole person.

¶8 The City did not file an FAL after the DIME physician issued

his report. Instead, a dispute arose between the parties over the

apportionment of claimant’s injuries and application of the

3
statutory benefits cap. The City took the position that claimant’s

permanent impairment rating should first be reduced by the 6%

impairment attributable to his 2007 injury, leaving him with a net

permanent impairment rating of 20% and a disability benefits cap

of $86,697.04 for the 2016 injury.

¶9 Claimant countered that the City’s approach improperly

reduced the disability benefits to which he was entitled; according

to him, the statutory benefits cap should be based on the DIME

physician’s total impairment rating of 26%, from which the amount

awarded to him for his 2007 injury should be deducted. Under

claimant’s analysis, the statutory benefits cap — based on an

impairment rating of 26% — would be $173,391.90.

¶ 10 The ingredients and sequence of calculation matter. If, as the

City argues, claimant’s impairment rating is deducted first and the

lower benefits cap applied, his resulting net PPD benefit is

$30,763.47. But if, as claimant argues, the impairment rating is

not deducted first and the award is based on the 26% impairment

rating, the higher benefits cap would apply and claimant’s net PPD

benefit would total $85,880.38. Thus, if claimant’s benefits are

calculated based on the 20% apportioned impairment rating, he will

4
receive $55,116.91 less than he would if benefits are calculated

based on the total 26% impairment rating.

¶ 11 An ALJ who heard the matter concluded that the statute’s

plain language supports the City’s position: the impairment rating

should be apportioned first. The ALJ noted that section 8-42-

104(5) specifies that “the permanent medical impairment rating”

attributable to the older injury “shall be deducted from the

permanent medical impairment rating” of the subsequent injury.

He reasoned that apportionment “is part of the process” used to

determine the overall impairment rating attributable to a specific

injury upon which the final award is ultimately based.

¶ 12 The Panel agreed with the ALJ’s interpretation. It noted that,

contrary to claimant’s proposed formula and in contrast to the

statutory declaration to subtract the earlier impairment rating from

the later injury’s impairment rating, the Act does not specify the

deduction of a previous award for a prior injury. It found nothing in

the Act authorizing such a calculation. It therefore affirmed the

ALJ’s PPD award of $30,763.47 to claimant.

¶ 13 On appeal, claimant asserts that the Panel and the ALJ

misinterpreted the Act. He raises two primary contentions: (1) the

5
plain meaning of the Act mandates that the disability benefits cap

be based on total, combined impairment ratings; and (2)

interpreting the Act to apportion an impairment rating before

applying the benefits cap facially violates the Fourteenth

Amendment’s guarantee of equal protection under the law because

those with impairment ratings of 26% or more from a single injury

receive greater benefits than those with combined impairment

ratings from multiple injuries that collectively exceed 25%. For the

reasons discussed below, we are not persuaded by claimant’s

arguments.

II. The Panel Correctly Interpreted The Act

¶ 14 Claimant first contends that to harmonize the Act’s provisions

and adhere to the words’ plain meaning, the statutory disability cap

should be applied to his combined impairment rating of 26%.

Although he concedes the City is entitled to an apportionment

between injuries, he argues that (1) the cap must be determined,

without regard to apportionment, “as part of the award”; and (2) any

apportionment must be taken later. According to him,

apportionment (1) “simply explains how to calculate the appropriate

offset” after the initial award has been determined; and (2) is

6
accomplished by deducting from the initial award the amount of

disability benefits previously awarded in connection with the prior

injury.

¶ 15 Adhering to this sequence in the calculation, claimant asserts,

achieves both the goal of preventing double recovery and the

beneficent purpose of the Act because it would not block claimants

from “accessing the second cap of benefits.”

¶ 16 We disagree with claimant’s reading of the Act.

A. Standard of Review and Rules of Statutory Construction

¶ 17 We review issues of statutory construction de novo. Ray v.

Indus. Claim Appeals Off., 124 P.3d 891, 893 (Colo. App. 2005),

aff’d, 145 P.3d 661 (Colo. 2006). Consequently, we are not bound

by the Panel’s interpretation of the Act or the Panel’s earlier

decisions. Olivas-Soto v. Indus. Claim Appeals Off., 143 P.3d 1178,

1180 (Colo. App. 2006).

¶ 18 We interpret the Act “according to its plain and ordinary

meaning.” Davison v. Indus. Claim Appeals Off., 84 P.3d 1023,

1029 (Colo. 2004). “[W]e give effect to every word and render none

superfluous because we ‘do not presume that the legislature used

language idly and with no intent that meaning should be given to

7
its language.’” Lombard v. Colo. Outdoor Educ. Ctr., Inc., 187 P.3d

565, 571 (Colo. 2008) (quoting Colo. Water Conservation Bd. v.

Upper Gunnison River Water Conservancy Dist., 109 P.3d 585, 597

(Colo. 2005)). “If the statutory language is clear, we apply it as

written.” Pinnacol Assurance v. Hoff, 2016 CO 53, ¶ 48.

¶ 19 However, where an agency’s governing statute is subject to

different reasonable interpretations, we defer to the agency’s

interpretation. Keel v. Indus. Claim Appeals Off., 2016 COA 8, ¶ 31;

see Rocky Mountain Cardiology v. Indus. Claim Appeals Off., 94 P.3d

1182, 1184-85 (Colo. App. 2004) (noting that an administrative

agency’s interpretation of its governing statute will be set aside

“only if it is inconsistent with the clear language of the statute or

with the legislative intent”).

B. Relevant Statutory Provisions

¶ 20 We are concerned here with the interpretation of two statutes:

section 8-42-107.5 and section 8-42-104(5).

¶ 21 Section 8-42-107.5 places a cap on the amount of combined

temporary and permanent disability benefits a claimant can receive.

It divides claims into two categories: (1) those for injuries with an

impairment rating of “twenty-five percent or less” and (2) those for

8
injuries with an impairment rating “greater than twenty-five

percent.” § 8-42-107.5. The former are subject to a lower benefits

cap than the latter. The statute provides:

No claimant whose impairment rating is
twenty-five percent or less may receive more
than[, as applicable here, $86,697.04] from
combined temporary disability payments and
permanent partial disability payments. No
claimant whose impairment rating is greater
than twenty-five percent may receive more
than[, as applicable here, $173,391.90] from
combined temporary disability payments and
permanent partial disability payments. . . .

Id.

¶ 22 Section 8-42-104(5) — which applies when a claimant has

sustained multiple injuries to the same body part — mandates that

the permanent impairment rating from the first injury must be

subtracted from any permanent impairment rating assigned after

the second, or subsequent, injury. The relevant portions of section

8-42-104 provide:

(1) The fact that an employee has suffered a
previous disability or impairment or received
compensation therefor shall not preclude
compensation for a later injury or for
death . . . .

....

9
(3) An employee’s temporary total disability,
temporary partial disability, or medical
benefits shall not be reduced based on a
previous injury.

....

(5) In cases of permanent medical impairment,
the employee’s award or settlement shall be
reduced:

(a) When an employee has suffered more than
one permanent medical impairment to the
same body part and has received an award or
settlement under the [Act] or a similar act from
another state. The permanent medical
impairment rating applicable to the previous
injury to the same body part, established by
award or settlement, shall be deducted from
the permanent medical impairment rating for
the subsequent injury to the same body part.

Id. (emphasis added).

C. Analysis

1. The Apportionment Provision is Clear and Unambiguous

¶ 23 Section 8-42-104(5) permits the apportionment of a disability

between multiple injuries. It unequivocally states that, as between

successive injuries to the same body part, apportionment is

accomplished by subtracting the “permanent medical impairment

rating” attributable to a claimant’s previous injury from the

“permanent medical impairment rating” assigned to a claimant after

10
any subsequent injury. § 8-42-104(5). Contrary to claimant’s

assertion, nothing in section 8-42-104(5) or any other provision in

the Act authorizes apportionment based on the deduction of a

previous monetary award from a later one.

¶ 24 Because “[i]n interpreting a statute, we must accept the

General Assembly’s choice of language,” we cannot “add or imply

words that simply are not there.” State v. Medved, 2019 CO 1, ¶ 19

(quoting People v. Diaz, 2015 CO 28, ¶ 15); see Kraus v. Artcraft

Sign Co., 710 P.2d 480, 482 (Colo. 1985) (“We have uniformly held

that a court should not read nonexistent provisions into the

Colorado Work[ers’] Compensation Act.”). Had the General

Assembly wanted the Act to authorize apportionment by, as

claimant wishes, subtracting a prior award from a subsequent one,

it could have “written the statute to reflect that outcome.” Munoz v.

Am. Fam. Mut. Ins. Co., 2018 CO 68, ¶ 13. But it didn’t: it based

apportionment solely on a consideration of “permanent medical

impairment rating[s].”

¶ 25 Because section 8-42-104(5) plainly and unambiguously

states that a claimant’s prior “impairment rating” must be deducted

when apportioning a prior injury, we must adhere to this statutory

11
mandate and apportion claimant’s impairment rating by deducting

the 6% attributable to his 2007 injury from the 26% impairment

rating he received after his 2016 work injury.2 Under section 8-42-

104(5)’s mandate, this results in an impairment rating of 20%

attributable to claimant’s 2016 injury.

2. Determining the Applicable Benefits Cap

¶ 26 The statutory disability benefits cap, section 8-42-107.5, is

similarly clear. It sets a lower cap for injuries resulting in

impairment ratings of 25% or less, and a higher cap for more

serious injuries that result in impairment ratings of 26% or higher.

¶ 27 But what is the applicable “permanent medical impairment

rating,” for purposes of determining which of the two benefits caps

applies in section 8-42-107.5? Is it, as claimant argues, the “total”

or “cumulative” impairment rating resulting from multiple injuries

to the same body part? Or is it, as the City argues, simply the

2 This, by the way, has long been the practice in this state. See,
e.g., Colo. Fuel & Iron Corp. v. Rhodes, 166 Colo. 82, 86, 441 P.2d
652, 654 (1968) (Apportionment is determined by “computing the
percentage of entire disability and deducting therefrom the
percentage of the previous disability as it existed at the time of the
subsequent injury.”).

12
“permanent impairment” rating attributable to the current injury

alone (as determined via the apportionment process)?

¶ 28 In support of his argument, claimant points out that despite

numerous amendments to the apportionment statute, it has never

been altered to specify how the benefits cap should be determined.

While that’s true, the legislature’s silence does not answer the

question posed. With no express guidance from the legislature, it is

equally likely that it intended claims to be apportioned first and the

applicable benefits cap determined second. We do not read the

General Assembly’s silence on this issue as making claimant’s

proposed interpretation more plausible.

¶ 29 Indeed, in our view the more plausible construction

determines the statutory cap based on a previously apportioned

impairment rating.

¶ 30 Apportionment recognizes that an injured worker is not barred

from recovering for a work injury just because he may have

previously suffered a compensable work-related injury. See Empire

Oldsmobile, Inc. v. McLain, 151 Colo. 510, 516, 379 P.2d 402, 405

(1963). But it likewise protects employers from liability attaching

from pre-existing or previous injuries. See, e.g., Lindner Chevrolet v.

13
Indus. Claim Appeals Off., 914 P.2d 496, 499 (Colo. App. 1995)

(noting that the General Assembly “has accorded employers the

protection of apportionment” for prior work-related injuries),

overruling recognized by Baldwin Constr. Inc. v. Indus. Claim

Appeals Off., 937 P.2d 895, 897 (Colo. App. 1997). In practice,

apportionment ensures that an employer is only liable for

impairment resulting from the particular work injury. And that

goal is accomplished by determining the impairment rating for the

injury in question.

¶ 31 Indeed, this distinction becomes apparent when one considers

that the disability benefits cap cannot be applied until a claimant’s

permanent impairment rating can be calculated.

¶ 32 Section 8-42-107.5 applies to permanent, not temporary,

impairment ratings. Consequently, several divisions of this court

have held the cap cannot be applied until a claimant has reached

MMI and been awarded permanent disability benefits. See United

Airlines v. Indus. Claim Appeals Off., 2013 COA 48, ¶ 14

(determining that claimant whose temporary disability benefits

exceeded the statutory cap did not have to repay any portion above

the cap because she had not reached MMI and had not received any

14
permanent disability benefits); Leprino Foods Co. v. Indus. Claim

Appeals Off., 134 P.3d 475, 480 (Colo. App. 2005) (“[B]ecause MMI

is a predicate to a determination of claimant’s medical impairment

rating, and claimant has not yet reached MMI, her permanent

impairment rating cannot yet be determined. Accordingly,

application of the cap is premature.”) (citation omitted); Donald B.

Murphy Contractors, Inc. v. Indus. Claim Appeals Off., 916 P.2d 611,

613 (Colo. App. 1995) (“[O]nly after (1) the claimant reaches [MMI]

and (2) his medical impairment rating is established can the

applicability of [section] 8-42-107.5 be determined.”).

¶ 33 A claimant whose impairment rating must be apportioned has,

then, already reached MMI with respect to at least one prior injury,

and the statutory cap would have been applied to that previous

award. Applying the cap to a combined, rather than an

apportioned, rating effectively caps that portion of the claim twice.

¶ 34 Apportioning a claim before applying the statutory cap avoids

this scenario. When apportionment is taken first, the statutory cap

limits the award for the permanent impairment rating attributable

to each particular injury. Claimant received PPD benefits for his

15
2007 injury and was therefore already subject to the statutory cap

for that injury.

¶ 35 Claimant, however, argues that because the precise language

used in section 8-42-104(5) — “shall be reduced” — is found in

sections 8-42-103 and 8-42-114, C.R.S. 2020, which mandate

offsets for social security and unemployment benefits,

apportionment must also work as an offset to a previously

determined award. But claimant’s reasoning is flawed.

¶ 36 An offset is loosely defined as follows: “the noun ‘offset’ is

defined as a contrary claim or demand by which a given claim may

be lessened or canceled; and the verb ‘offset’ as meaning to balance;

to cancel by contrary claims or sums; to counteract.” Lalime v.

Desbiens, 55 A.2d 121, 123 (Vt. 1947) (citation omitted). Under the

Act, apportionment is not an offset. It is, as we explained above, a

reduction in the impairment rating attributable to an injury. It is

not a reduction of any sum or monetary award.3

3 Claimant’s reliance on Leprino Foods Co. v. Industrial Claim
Appeals Office, 134 P.3d 475 (Colo. App. 2005), for a contrary
conclusion is misplaced. Leprino Foods had nothing to do with
apportionments; it held that no cap could apply until after a
claimant had reached MMI but offered no guidance on when any
apportionment should be computed. Id. at 481. Consequently, its

16
¶ 37 Nor does the Act’s goal of preventing double recovery convince

us to adopt claimant’s proposed statutory interpretation. To be

sure, preventing double recovery by claimants is “[a]n important

policy of the” Act. Colo. Comp. Ins. Auth. v. Jorgensen, 992 P.2d

1156, 1165 (Colo. 2000). But determining the benefits cap based

on a claimant’s total or combined impairment rating does not

achieve that goal unless, as claimant suggests, his prior award is

deducted from his current claim benefit. And we have already

determined that the Act does not expressly authorize such a

calculation in place of apportioning a claimant’s impairment rating.

¶ 38 Calculating a claimant’s disability benefit based on a

combined, instead of apportioned, impairment rating is duplicative

in the sense that a claimant would receive a benefit award based on

the earlier impairment rating — here, 6% — and a second award

based on the earlier rating plus the later rating — here, a combined

impairment rating of 26%. Further, in arguing to the contrary,

claimant fails to acknowledge that an impairment rating is part of

the calculation determining the final benefits sum to which a

description of benefits caps does not assist us in answering the
questions posed here.

17
claimant is entitled and directly affects how much a claimant will

recover. See §§ 8-42-106, -107(8)(d), C.R.S. 2020 (medical

impairment disability benefits). Incorporating the 6% attributable

to claimant’s prior injury into the calculation of benefits awardable

for his 2016 injury would necessarily result in that 6% being

incorporated into the calculation of benefits twice: first in 2007 and

again in 2016. Adding in the 6% impairment rating from his 2007

injury thus inflates his 2016 award, enabling him to recover more

than just the benefit tied to the 2016 impairment.

¶ 39 As claimant also observes, the purpose of the statutory cap is

“to create an overall savings in workers’ compensation costs to

employers while allowing a more generous award for levels of

impairment exceeding twenty-five percent.” Rogan v. Indus. Claim

Appeals Off., 91 P.3d 414, 416 (Colo. App. 2003). Certainly, then,

permitting higher recoveries in cases of more serious injury is one

goal of the statutory cap, but equally important are cost savings.

Although claimant’s combined impairment rating totals 26%, his

rating with respect to this injury is only 20%. Applying the cap to

the combined impairment rating would, in effect, award claimant

benefits twice for the 6% impairment he suffered in his 2007 injury

18
because calculating benefits based on a 26% impairment rating

necessarily incorporates the 6% impairment rating from the

previous injury. Consequently, applying the benefits cap to the

combined impairment rating frustrates the cost saving goal built

into the Act. See id.

¶ 40 True, the Act “is intended to be ‘remedial and beneficent in

purpose, and should be liberally construed’ in order to accomplish

these goals.” Davison, 84 P.3d at 1029 (quoting Colo. Counties, Inc.

v. Davis, 801 P.2d 10, 11 (Colo. App. 1990)). But the beneficent

goal arching over the Act does not trump an express provision of

the Act. Cf. Curran v. Progressive Northwestern Ins. Co., 29 P.3d

829, 833 (Alaska 2001) (“[P]ublic policy can guide statutory

construction but cannot override a clear and unequivocal statutory

requirement”). Consequently, although one of the Act’s underlying

goals is to generously compensate workers suffering more serious

injuries with a higher benefit cap, we cannot ignore the Act’s

directive to apportion impairment derived from multiple injuries.

¶ 41 We conclude that the legislature’s intent in imposing a

statutory cap and also mandating apportionment of multiple claims

arising out of injuries to the same body part is best achieved by

19
applying the cap to the apportioned impairment rating, as the Panel

determined. Because the Panel’s interpretation does not conflict

with the legislative intent, it is “entitled to great weight.” Jiminez v.

Indus. Claim Appeals Off., 51 P.3d 1090, 1093 (Colo. App. 2002).

We therefore defer to it and adopt it. See Keel, ¶ 31.

¶ 42 Consequently, we perceive no error in the Panel’s affirmance of

the ALJ’s order limiting claimant’s recovery on this claim to the

lower statutory benefits cap.

III. Equal Protection

¶ 43 Claimant also contends that the Panel’s interpretation violates

his right to equal protection under the law. Specifically, he argues

that it treats him differently from other injured workers. He asserts

that applying the statutory benefits cap to an apportioned injury

“would deny workers who receive a total rating of 26% or higher

from two or more combined injuries the ability to reach the higher

cap of benefits, but would allow those with just one injury of 26% or

higher to reach the higher cap of benefits.” We are not persuaded

that the Panel’s interpretation violates equal protection.

20
A. Law Governing Equal Protection

¶ 44 As claimant concedes, “workers’ compensation claimants are

not a suspect class and . . . workers’ compensation benefits are 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.” Sanchez v. Indus. Claim Appeals Off., 2017 COA

71, ¶ 20 (citations omitted).

¶ 45 “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.’” Id. at ¶ 21 (quoting Pace Membership Warehouse v.

Axelson, 938 P.2d 504, 506 (Colo. 1997)). Our review must be

“especially deferential to legislative choice: ‘[S]o long as it is

arguable that the other branch of government had [a rational] basis

for creating the classification, a court should not invalidate the

law.’” Culver v. Ace Elec., 971 P.2d 641, 646 (Colo. 1999) (quoting 2

Ronald D. Rotunda et al., Treatise on Constitutional Law § 18.3

(1986)).

21
¶ 46 “[T]he burden is on claimant, as the challenging party, to

prove the statute is unconstitutional . . . .” Pepper v. Indus. Claim

Appeals Off., 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).

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 other persons who are similarly
situated.

Peregoy v. Indus. Claim Appeals Off., 87 P.3d 261, 265 (Colo. App.

2004).

B. Analysis

¶ 47 Here, claimant’s equal protection challenge rests on his

assertion that all claimants with impairment ratings in excess of

25% are similarly situated and entitled to equal treatment under

the law. But they are not. Claimant’s impairment rating is the sum

of his ratings from two different injuries. Other claimants with

impairment ratings greater than 25% suffered just one injury.

22
¶ 48 Sustaining two work-related injuries places claimant and

other multiple-incident claimants in a different category from

claimants who have sustained just one injury and results in a key

distinction between the two groups: those claimants who have

suffered a prior injury received disability benefits for the prior injury

because those claimants were entitled to disability benefits based

on that earlier permanent impairment rating. See § 8-42-104(5);

§ 8-42-107; § 8-42-111, C.R.S. 2020. In contrast, workers who

sustained a single injury resulting in an impairment rating of 26%

or more have not previously received any disability benefits. The

two groups are consequently not similarly situated. Claimant

therefore cannot meet his threshold burden of establishing that he

was treated differently than other similarly situated claimants. See

Peregoy, 87 P.3d at 265.

¶ 49 Certainly, in some circumstances, all workers’ compensation

claimants have been lumped into the same category. See, e.g.,

Culver, 971 P.2d at 646 (“For purposes of further analysis, we

assume that all injured claimants are similarly situated.”); Sanchez,

¶ 25 (“We therefore conclude that the class should be defined more

narrowly as comprising all workers’ compensation litigants, because

23
parties to workers’ compensation actions are subject to different

rules and a different statutory scheme than other litigants.”). But

even if we were to assume for the purposes of our analysis here that

all workers’ compensation claimants with impairment ratings

greater than 25% are similarly situated, claimant still cannot meet

his burden of establishing a constitutional violation.

¶ 50 Employing claimant’s formula to ascertain benefits payable to

multi-injury claimants necessarily results in basing benefits on the

same impairment rating twice: (1) when calculating benefits for the

previous injury; and (2) when adding the prior impairment rating to

the rating obtained in the subsequent injury. As claimant’s

situation exemplifies, he received PPD benefits based on his 6%

impairment rating for his 2007 injury. If we now calculate his

award based on the combined rating of 26%, rather than

apportioning first, benefits for the initial 6% rating would effectively

be calculated twice and the resulting sum would be inflated by an

additional 6% not attributable to the current injury. And that is a

result at odds with the Act’s goal of avoiding duplicative recoveries.

See Jorgensen, 992 P.2d at 1165.

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¶ 51 Nor was claimant actually deprived of access to a higher total

award for his two injuries. In 2007, his injury was subject to a

$75,000 cap applicable to injuries with impairment ratings of 25%

or less. § 8-42-107.5, C.R.S. 2006. He received $28,930.94 in

disability benefits for that injury, but had his need been greater or

his disability more extensive, up to $75,000 was available to him

before reaching the statutory cap in place in 2007. Importantly, the

2007 award is not tallied into the statutory cap for the 2016 injury;

the 2016 injury is subject to its own statutory cap, which had

increased to $86,697.04. Thus, the maximum combined statutory

caps available to claimant for his 2007 and 2016 injuries totals

$161,697.04. It is worth noting, too, that had claimant’s 2007

injury been subject to the cap in place in 2016, he would have had

available to him up to $173,394.08 for the two injuries.4 In that

scenario, the combined caps from claimant’s two injuries would

thus slightly exceed the 2016 higher statutory cap of $173,391.90.

Consequently, we disagree that claimant suffered any deprivation at

all.

4 $86,697.04 x 2 = $173,394.08.

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¶ 52 Also important to our equal protection analysis is the

existence of a rational basis for any unequal treatment. To

successfully plead an equal protection violation, claimant must

establish the absence of a legitimate governmental interest in

treating some workers with impairment ratings over 25% differently

than others. He has not done so. Although claimant maintains

that his treatment was unfair and unjustified, the supreme court

has found financial grounds to be the basis for rational and

legitimate legislative goals under the Act. The supreme court noted

that there is

a three-fold rational basis for the disparate
treatment of [permanent total disability]
claimants in comparison to [temporary partial
disability], [temporary total disability], and
[permanent partial disability] claimants to
whom social security and employer-paid
retirement benefits are payable after the
person’s sixty-fifth birthday. They include:
maintaining the fiscal integrity of the workers’
compensation system; allocating the fiscal
burden equitably among funding sources; and
controlling costs to employers while providing
legislatively-intended benefits to injured
workers. We agree that the offset provision
has a rational basis.

Culver, 971 P.2d at 651-52. Similarly here, the goal of preventing

inflated recoveries is a rational basis for the legislature to treat

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claimants with one injury netting an impairment rating greater than

25% differently from claimants whose impairment rating of 26% or

more was caused by multiple injuries to the same body part.

¶ 53 We therefore conclude that claimant has failed to establish

that basing the statutory benefits cap on apportioned impairment

ratings violates his right to equal protection under the law. See

Pepper, 131 P.3d at 1139.

IV. Disposition

¶ 54 The order is affirmed.

JUDGE FREYRE and JUDGE YUN concur.

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