Higgs v. Western Landscaping & Sprinkler Systems, Inc. , 789 P.2d 431 ( 1989 )

Opinion by

Judge REED.

The claimant, Jim L. Higgs, seeks review of the order of the Industrial Claim Appeals Office (Panel) which affirmed the findings and order of the Administrative Law Judge (AU) awarding temporary disability benefits to the claimant. Specifically, he challenges the portion of the order which determined the amount of his average weekly wages upon which the award of benefits was based. We affirm.

Claimant sustained an admitted injury arising out of and in the course of his work as a farm and ranch worker. At the time of his injury his employer provided to him, without cost, housing, farm produce, and like benefits of a substantial value. These benefits were in addition to the cash wages received by him which were reflected on his W-2 income tax form. Pursuant to § 8-47-101(2), C.R.S. (1988 Cum. Supp.), the AU included only claimant’s W-2 wages in computing his “average weekly wage.” The sole issue on review is whether the statute governing wage computation for farm and ranch employees under the Colorado Workmen’s Compensation Act (Act) operates to deny claimant equal protection under the law.

Under § 8-47-101(2), C.R.S. (1988 Cum. Supp.), the calculation of a claimant’s average weekly wage is required to include “the reasonable value of board, rent, housing, lodging, or any other similar advantages received from the employer....” But, it further provides that: “The term ‘wages’ as applied to farm and ranch labor employees and as applied to employees of agricultural corporations shall be based solely on the income reported on the employees’ W-2 form for federal income tax purposes.”

The claimant contends that the statutory distinction between farm and ranch employees and all other employees is unreasonable and arbitrary and, therefore represents a denial of equal protection under the law. We do not agree.

The proper standard for determining whether the statutory classification violates equal protection is the “rational” relation standard. Bellendir v. Kezer, 648 P.2d 645 (Colo.1982). Under this standard a legislative enactment is presumed valid and the burden is upon the party challenging the constitutionality of the enactment to prove its invalidity beyond a reasonable doubt. Colorado Society of Community & Institutional Psychologists, Inc. v. Lamm, 741 P.2d 707 (Colo.1987). A statute will be invalidated only if there is no reasonably, conceivable set of facts which establishes a rational relationship between the statute and a permissible governmental purpose. Colorado Society of Community & Institutional Psychologists, Inc. v. Lamm, supra.

Constitutional challenges similar to that asserted by the claimant here have been rejected by the federal courts. In Romero v. Hodgson, 319 F.Supp. 1201 (N.D.Cal.1970), aff'd, 403 U.S. 901, 91 S.Ct. 2215, 29 L.Ed.2d 678 (1971), the court rejected an equal protection challenge to the exclusion of agricultural workers from coverage under the Federal Unemployment Tax Act and similar state statute. Romero was summarily affirmed by the United States Supreme Court and was treated as controlling precedent in Doe v. Hodgson, 478 F.2d 537 (2d Cir.1973), a case challenging the constitutionality of various state and federal laws excluding benefits and protection from agricultural workers.

Similarly, our supreme court followed Romero in ruling that the total exclusion of farm and ranch workers from the Colorado Workmen’s Compensation Act prior to 1971 did not violate equal protection. Anaya v. Industrial Commission, 182 Colo. 244, 512 P.2d 625 (1973). The court in Anaya stated, “It is not our province to comment on the logic or policy of the general assembly in making this exclusion. Rather, our duty is to determine whether there is a reasonable basis for this classification.”

The reasonable basis identified in Romero, and accepted in Anaya, was stated as follows in Romero:

“[T]he exclusion of agriculture from unemployment compensation can be seen as an indirect subsidy of a ‘beneficent enterprise’, or as an effort to save the compensation fund from the drain which would result from the inclusion of another large ‘deficit industry,’ or even as a necessary political compromise without which it would have been impossible to inaugurate a most important reform in American institutions.”

Claimant argues, however, that because agricultural workers are now included within the Workmen’s Compensation Act, their entitlement to benefits must be calculated the same as other employees under the Act. We disagree. As noted by our supreme court in Billings Ditch Co. v. Industrial Commission, 127 Colo. 69, 253 P.2d 1058 (1953), the courts must defer not only to legislative determinations as to coverage under the Act, but also to the “extent and degree” of such coverage.

Claimant’s reliance upon Petrafeck v. Industrial Commission, 191 Colo. 566, 554 P.2d 1097 (1976) is misplaced. In Petrafeck, the disparate treatment of employees had no rational basis nor did it serve any legitimate state interest. Here, in contrast, there is a long-standing governmental interest in assisting the agricultural industry. See Anaya v. Industrial Commission, supra; Romero v. Hodgson, supra.

We conclude that the claimant has failed to show that § 8-47-101(2), as applied to farm and ranch labor employees, bears no rational relationship to a legitimate legislative goal. Accordingly, we hold that the challenged statute is constitutionally sound and does not violate the claimant’s right to equal protection of the law.

Order affirmed.

PLANK, J., concurs. DUBOFSKY, J., dissents.