No. 90CA0544Colorado Court of Appeals.
Decided January 30, 1992. Rehearing Denied March 12, 1992. Certiorari Denied August 10, 1992 (92SC180).
Review of Order from the Industrial Claim Appeals Office of the State of Colorado.
Page 822
Glasman, Jaynes McBride, Ronald C. Jaynes, Lydia W. Daugherty, for Petitioner.
Duane Woodard, Attorney General, Charles B. Howe, Chief Deputy Attorney General, Richard H. Forman, Solicitor General, Michael J. Steiner, Assistant Attorney General, for Respondents The Industrial Claim Appeals Office of the State of Colorado, the Colorado Division of Labor, and the Subsequent Injury Fund of Colorado.
Douglas R. Phillips, for Respondent Joseph L. Salazar.
Division C.
Opinion by JUDGE RULAND.
[1] This case is before us pursuant to a mandate from our supreme court in Subsequent Injury Fund v. Electron Corp., 817 P.2d 533 (Colo. 1991). There, the court vacated our decision in Electron Corp. v. Industrial Claim Appeals Office, 817 P.2d 576 (Colo.App. 1991) and directed us to reconsider our analysis in light of its decision in Climax Molybdenum Co. v. Walter, 812 P.2d 1168 (Colo. 1991). In accordance with that latter holding, we affirm the order of the Industrial Claim Appeals Panel. [2] Claimant was exposed to significant amounts of silica dust and asbestos fibers during twenty-one and one-half years of employment as a foundry worker at Electron Corporation. In 1977, at age 38, claimant filed a workers’ compensation claim for the occupational disease of silicosis. He was found to be fifty per cent permanently partially disabled and was awarded maximum permanent partial disability benefits of $26,292. The award was upheld by this court. Electron Corp. v. Industrial Commission, (Colo.App. No. 81CA1275, July 15, 1982) (not selected for official publication). [3] Claimant continued to work for Electron and suffered further injurious exposures to silica dust and asbestos fibers. He filed a second claim for workers’ compensation benefits in February 1987, and became totally and permanently disabled from silicosis in May of 1987. [4] Claimant’s sole exposure to silica dust occurred during his employment for Electron.Page 823
[5] Both the Administrative Law Judge (ALJ) and the Panel ruled that the allocation of liability for permanent total disability benefits was controlled by § 8-51-112(1), C.R.S. (1986 Repl. Vol. 3B) (now codified at § 8-41-304(1), C.R.S. (1991 Cum. Supp.)), which imposes liability upon the last employer in occupational disease disability cases, rather than by § 8-51-106(1)(a), C.R.S. (1986 Repl. Vol. 3B) (now codified at § 8-46-101(1)(a), C.R.S. (1991 Cum. Supp.)), which allocates liability between the employer and the Subsequent Injury Fund (SIF) when a worker who previously sustained a permanent partial industrial disability becomes permanently and totally disabled as a result of a subsequent injury. I.
[6] Electron contends that the Panel erred in finding it solely liable for claimant’s permanent total disability under § 8-51-112(1). We disagree.
II.
[12] Alternatively, Electron challenges the constitutionality of the apportionment scheme established by § 8-51-106 and § 8-51-112. We perceive no constitutional defect.
Page 824
permissible state interest. If any state of facts can be conceived that would sustain the challenged classification, that state of facts will be presumed to exist in the absence of legitimate proof to the contrary Orsinger Outdoor Advertising, Inc. v. Department of Highways, 752 P.2d 55
(Colo. 1988).
Page 825
resulting industrial disability, combines with other industrial injuries to cause the worker to be permanently and totally disabled.”
[31] In addition, the majority’s application of Climax to the facts here results in a de facto classification of employers into at least two separate classes when apportioning liability for cumulative permanent partial disabilities: 1) employers whose workers are disabled by accidental injuries (“accidental injury employers”) and 2), C.R.S. (1986 Repl. Vol. 3B) (now codified at § 8-41-304(2), C.R.S. (1991 Cum. Supp.)) employers whose workers are disabled by occupational diseases which do not qualify for SIF contribution under § 8-51-112(2), C.R.S. (1986 Repl. Vol. 3B) (now codified at § 8-41-304(2), C.R.S. (1991 Cum. Supp.) (“occupational disease employers”). The resulting disparate treatment of the two groups is contrary to the legislative intent of providing a single, unified Workers’ Compensation Act as evidenced by the repeal of the Occupational Disease Disability Act in 1975 and its merger into the Workmen’s Compensation Act. See Tape Recording of the Senate Business Committee, 50th General Assembly, First Session (May 19, 1975); see Krumback v. Dow Chemical Co., 676 P.2d 1215 (Colo.App. 1983). [32] Under the majority’s analysis, a “double” liability is imposed upon occupational disease employers in cases in which a worker has a prior permanent partial disability from an occupational disease and the corresponding percentage of the worker’s permanent total disability attributable to the occupational disease does not qualify for SIF contribution under either § 8-51-106(1)(a) or § 8-51-112(2). See Subsequent Injury Fund v. Grant, 827 P.2d 574 (Colo.App. 1991). [33] Contrary to the majority, I can find no legitimate state interest which is served by imposing a “double” liability on occupational disease employers. The question of double liability — and the ancillary issue of constitutional equal protection — was not presented in Climax v. Molybdenum v. Walter, supra. [34] In cases in which two or more permanent partial disabilities combine to render a worker permanently and totally disabled, § 8-51-106(1)(a) provides: [35] “[T]he employer in whose employ the employee sustained such subsequent injury shall be liable only for that portion of the employee’s industrial disability attributable to said subsequent injury, and the balance of compensation due such employee on account of permanent total disability shall be paid from the subsequent injury fund . . . .” (emphasis added) [36] The constitutional infirmity arises in cases in which a worker’ prior permanent partial disability is an occupational disease. Because, under the Climax holding, SIF contribution is not available under § 8-51-106(1)(a), the employer responsible for the prior occupational disease either pays twice for the occupational disease, or that portion of the worker’s total permanent disability which is attributable to the occupational disease goes uncompensated. Subsequent Injury Fund v. Grant, supra. [37] While equal protection of the laws does not demand that a statute or rule necessarily apply equally to all persons, it does require, under rational basis analysis, that a governmental classification which singles out a group of persons for disparate treatment be rationally founded on differences that are real and not illusory and that such classification be reasonably related to a legitimate state interest. Tassian v. People, 731 P.2d 672 (Colo. 1987). [38] The apportionment scheme established by § 8-51-106 and § 8-51-112 discriminates against occupational disease employers and workers disabled by occupational diseases by restricting SIF coverage for occupational diseases to the specific diseases and circumstances enumerated in § 8-51-112(2). However, neither the statutory scheme nor the administrative record in this case establishes a rational basis for distinguishing between the two categories of employers for purposes of apportioning liability for subsequent injuries. [39] The SIF is financed by assessments imposed uniformly on all Colorado employersPage 826
and carriers. Section 8-51-106(1)(b), C.R.S. (1986 Repl. Vol. 3B) (subsequently amended and now codified at § 8-46-102, C.R.S. (1991 Cum. Supp.)). Therefore, employers of workers disabled by occupational disease are subject to the same mandatory assessments as are accidental injury employers.
[40] Similarly, while there are obvious physiological differences between occupational diseases and accidental injuries, liability for both types of disabilities is governed by the same statutory benefits provisions, with nodistinction between the two types of disabilities. Sections 8-51-101 to § 8-51-113, C.R.S. (1986 Repl. Vol. 3B) (now codified at § 8-42-101
to § 8-42-124, C.R.S. (1991 Cum. Supp.)). Thus, occupational disease employers pay the same types and amounts of benefits as do accidental injury employers. [41] Accordingly, because both classes of employers pay the same benefits and pay equivalent assessments to fund the Subsequent Injury Fund, I find no rational basis for the disparate treatment accorded to occupational disease employers. [42] The second prong of the rational-basis test requires a “serious and genuine judicial inquiry into the correspondence between the classification and the legislative goals.” Austin v. Litvak, 682 P.2d 41 (Colo. 1984). A distinction between classes or groups of people must have some relevance to the purpose for which the classification is made. Gallegos v. Phipps, 779 P.2d 856 (Colo. 1989). [43] The governmental purpose underlying § 8-51-112 is to facilitate litigation and establish a fixed liability in occupational disease cases. This interest, standing alone, is legitimate. Union Carbide Corp. v. Industrial Commission, 196 Colo. 56, 581 P.2d 734 (Colo. 1978). However, the state’s interest in fixing initial liability for occupational diseases is not implicated in cases of cumulative permanent partial disabilities involving prior occupational disease disabilities incurred by a worker while employed only by a single employer. In other words, the state’s interest in initially determining liability for occupational diseases is not advanced by a statutory scheme which makes occupational disease employers doubly liable for prior occupational diseases when the occupational disease subsequently combines with another occupational disease incurred while working for the same employer and renders a worker permanently and totally disabled. [44] Penalizing occupational disease employers, or workers disabled by occupational diseases, is contrary to the public policy of encouraging the employment of partially disabled workers. It also circumvents the legislative objective of providing a single, unified Workers’ Compensation Act. [45] Concededly, the state could properly decide that a subsequent injury fund is unnecessary for either accidental injury employers or occupational disease employers. However, once the state has established and funded a scheme for providing employers relief from full liability in cases of cumulative partial disabilities, the scheme by which subsequent injury relief is accorded must have a rational basis. Higgs v. Western Landscaping, 804 P.2d 161 (Colo. 1991). [46] I find that the statutory classification which arises under §§ 8-51-106(1)(a) and 8-51-112 in apportioning liability for total permanent disability is arbitrary, unreasonable, and discriminatory. See Stevenson v. Industrial Commission, 190 Colo. 234, 545 P.2d 712 (1976). To sanction the disparate treatment accorded to occupational disease employers and their employees by the statutory apportionment scheme would subject the employers’ and workers’ equal protection rights to “unrestricted legislative license and would thereby deprive the equal protection principle of much of its meaningful content.” Higgs v. Western Landscaping, supra. [47] Therefore, in my opinion, under the circumstances presented here, the statutory scheme, as interpreted by the majority, violates the guarantees of equal protection under the Fourteenth Amendment and Colo. Const. art. II, § 25. Accordingly, I would set aside the order and remand with directions that the benefits due claimant be
Page 827
apportioned between Electron and the Subsequent Injury Fund.