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Pepper v. Industrial Claim Appeals Office of the State of Colorado9/22/2005
ORDER SET ASIDE AND CASE REMANDED WITH DIRECTIONS
Marquez, J., concurs
Carparelli, J., dissents
The sole issue in this appeal is whether § 8-40- 202(1)(a)(I)(A), C.R.S. 2005, violates equal protection guarantees because it excludes, at the option of the governmental body, members of volunteer police departments from the definition of an "employee" for purposes of workers' compensation coverage. We conclude that the statute is unconstitutional. Accordingly, we set aside the order of the Industrial Claim Appeals Office (Panel) concluding that Booth Pepper (claimant) was not an employee of the City of Florence (City), and we remand for further consideration of his workers' compensation claim.
This case was decided on stipulated facts. Claimant was an unpaid member of the City's volunteer police reserves on September 28, 2001, when he allegedly suffered mental impairment and experienced stress as a result of a shooting incident. At the time of the incident, claimant was performing his duties as a volunteer reserve police officer.
In pertinent part, § 8-40-202(1)(a)(I)(A) provides that, for purposes of the Workers' Compensation Act of Colorado (Act), § 8-40-101, et seq., C.R.S. 2005, regularly employed police officers, firefighters, sheriffs, and deputy sheriffs are deemed employees. In addition, posse members and several types of volunteers, including volunteer firefighters and members of volunteer rescue, disaster, and ambulance teams, are deemed employees. However,
embers 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 City chose not to include members of the volunteer police reserves as employees under its workers' compensation insurance policy. Therefore, the administrative law judge (ALJ) determined that claimant was not the City's employee on the date of the alleged injury.
In his brief in support of his petition to review, claimant challenged the validity of § 8-40-202(1)(a)(I)(A) on equal protection grounds. The Panel, citing its lack of jurisdiction over constitutional issues, affirmed the ALJ's order.
Claimant contends there is no rational basis for allowing a governing body to exclude volunteer police from being considered employees under the Act, when all other similarly situated groups listed in the statute, whether regularly employed or volunteers, are deemed employees. We agree that the classification offends guarantees of equal protection.
I.
At the outset, we reject the Panel's assertion that the constitutionality of this statute is not properly before this court.
In cases involving direct review of agency action, the court of appeals has initial jurisdiction to review actions when the constitutionality of a statute is at issue. Arapahoe Roofing & Sheet Metal, Inc. v. City & County of Denver, 831 P.2d 451 (Colo. 1992) (court of appeals may consider the constitutionality of statutes in appeals taken from decisions of administrative tribunals); Celebrity Custom Builders v. Indus. Claim Appeals Office, 916 P.2d 539 (Colo. App. 1995)(constitutionality may be addressed by review of action brought in either district court or administrative proceeding). Contrary to the Panel's argument, the constitutionality of a statute need not be raised before the ALJ in order to preserve the issue for consideration by this court
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