W.C. No. 4-578-846Industrial Claim Appeals Office.
February 24, 2004
FINAL ORDER
The claimant seeks review of a Corrected Order of Administrative Law Judge Mattoon (ALJ) which determined the claimant was not an employee at the time of the alleged injury, and therefore, denied and dismissed the claim for workers’ compensation benefits. We affirm.
In pertinent part, § 8-40-202(1)(a)(I)(A), C.R.S. 2003, provides:
“Members of volunteer police departments, volunteer police reserves, and volunteer police teams or groups in any county, city, town, or municipality, while actually performing duties as volunteer police officers, may be deemed employees within the meaning of this paragraph (a) at the option of the governing body of such county or municipality.” (Emphasis added).
The issue before the ALJ was whether the claimant was the respondent-employer’s “employee” on September 28, 2001, when the claimant allegedly suffered mental impairment. The parties stipulated the claimant was an unpaid volunteer reserve police officer on September 28, 2001. The parties also stipulated that the respondent-employer chose not to include volunteer police reserve officers as employees under their workers’ compensation insurance policy. Under these circumstances, the ALJ determined the claimant was not an employee of the respondent-employer on the date of the alleged injury.
On review, the claimant contends there is no rational basis to distinguish volunteer police officers and regular police officers for purposes of workers’ compensation protection. Therefore, the claimant argues that insofar as § 8-40-202(1)(a)(I)(A) allows a volunteer police officer to be deemed an employee at the “option” of the governing municipality, the statute is unconstitutional and a violation of equal protection guarantees afforded by the Colorado and United States constitutions.
As argued by the respondents, we lack jurisdiction to declare the statute unconstitutional. Kinterknecht v. Industrial Commission, 175 Colo. 60, 485 P.2d 721 (1971); Celebrity Custom Builders v. Industrial Claim Appeals Office, 916 P.2d 539
(Colo.App. 1995). Indeed, to address the claimant’s constitutional challenges would “violate the principle of separation of powers, and cause us to engage in constitutional decision-making beyond our area of expertise.” See Denver Center for Performing Arts v. Briggs, 696 P.2d 299, 305 (Colo. 1985). Under these circumstances, the claimant has not presented grounds which afford us a basis on which to interfere with the ALJ’s order.
IT IS THEREFORE ORDERED that the ALJ’s order dated October 17, 2003, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ Kathy E. Dean
______________________________ Dona Halsey
NOTICE
This Order is final unless an action to modify or vacate this Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO 80203, by filing a petition for review with the Court, within twenty (20) days after the date this Order is mailed, pursuant to § 8-43-301(10) and § 8-43-307, C.R.S. 2003. The appealing party must serve a copy of the petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe, Tower 3, Suite 350, Denver, CO 80202.
Copies of this order were mailed to the parties at the addresses shown below on February 24, 2004 by A.Hurtado.
Booth Pepper, 3838 Carlile Ave., Pueblo, CO 81005
City of Florence, 300 W. Main St., Florence, CO 81226
Marla Myers, CIRSA, 3665 Cherry Creek North Dr., Denver, CO 80209
Stephen M. Johnston, Esq., 125 W. “B” St., Pueblo, CO 81003 (For Claimant)
Susan K. Reeves, Esq. and T. Paul Krueger, II, Esq., 111 So. Tejon, #700,
Colorado Springs, CO 80903 (For Respondents)