author: Opinion by JUDGE TAUBMAN

text:
    IN RE the MARRIAGE OF Alexandre Ford GARRETT, Appellant, and Daniel Meyer HEINE, Appellee.
    Court of Appeals No. 17CA1219
    Colorado Court of Appeals, Division I.
    Announced November 1, 2018
    Alexandre Ford Garrett, Pro Se
    Daniel Meyer Heine, Pro Se
   Opinion by JUDGE TAUBMAN

¶ 1 In this post-dissolution of marriage proceeding involving the children of Alexandre Ford Garrett (mother) and Daniel Meyer Heine (father), mother appeals the district court's order modifying child support and awarding retroactive child support. We affirm the portion of the order retroactively establishing a child support order, reverse the portion of the order determining mother's income, and remand the case for further proceedings. In so doing, we interpret a 2013 amendment to the child support statute that resolved conflicting decisions from divisions of our court concerning parents' responsibilities to pay child support when a voluntary change in parenting time occurs.

I. Relevant Facts

¶ 2 Mother and father, the parents of two children, were divorced in 2008.

¶ 3 In 2014, both parents moved to modify parenting time. In February 2015, the district court entered a week on/week off parenting time schedule and modified child support accordingly. The parents then agreed in June 2015 to modify the week on/week off parenting time schedule such that father would be the primary residential parent and mother would have parenting time every other weekend and one evening per week. Based on the revised parenting time schedule, father began paying mother a reduced amount of child support. Father then moved to modify child support in July 2016.

¶ 4 The parties again agreed to change parenting time in February 2017. Mother became the primary residential parent of one child while father remained the primary residential parent of the other child.

¶ 5 After a March 2017 hearing, the district court made the following findings with respect to the parties' incomes for child support purposes:

• father was capable of earning $20,000 per month;
• mother was doing contract work and earning $2000 to $4000 per month;
• mother had an extensive background in public relations, marketing, and communications and had historically earned at least $6000 per month until she lost her job in 2016;
• mother believed that the job market was saturated and that going forward she would not be able to earn the equivalent of her prior salary; and
• the court "was not provided with credible evidence" that mother was incapable of reaching her income potential if employed full time in her field.

¶ 6 Based on these findings, the court calculated child support using $6000 per month as mother's income. The court further determined that because of the substantial changes in parenting time beginning in June 2015, mother should have been paying child support to father and therefore owed him $21,389 in arrearages. Offsetting mother's arrearages against father's current child support obligation, the court ordered father to pay mother $225.58 per month for twenty-four months and then $1116.79 per month thereafter.

II. Income Imputation

¶ 7 Mother contends that the district court erred when it imputed $6000 per month in income to her without finding she was voluntarily underemployed. We agree.

A. Standard of Review

¶ 8 We review child support orders for abuse of discretion. In re Marriage of Davis , 252 P.3d 530, 533 (Colo. App. 2011).

¶ 9 Whether potential income should be imputed to a parent in determining child support is a mixed question of fact and law. People v. Martinez , 70 P.3d 474, 480 (Colo. 2003). We defer to the district court's factual findings if they are supported by the record. Id. We review the district court's application of legal standards and legal conclusions de novo. In re Marriage of Connerton , 260 P.3d 62, 65 (Colo. App. 2010).

B. Legal Principles

¶ 10 If a parent is voluntarily underemployed, child support must be calculated based on that parent's potential income. § 14-10-115(5)(b)(I), C.R.S. 2018; see In re Marriage of Krejci , 2013 COA 6, ¶ 28, 297 P.3d 1035. "Voluntarily" in this context means that the parent is underemployed "intentionally, of free will." Martinez , 70 P.3d at 477-78. Thus, in order to impute potential income to a parent, the district court must find that the parent is shirking his or her child support obligation by unreasonably forgoing higher-paying, obtainable employment. Id. at 480 ; see Krejci , ¶ 28. Imputation of income is an exception to computing child support based on actual income and should be applied with caution. Martinez , 70 P.3d at 478-79.

¶ 11 If the court finds that a parent is voluntarily underemployed after losing a job, it must determine what the parent can reasonably earn and contribute to the child's support by considering the following factors:

[the parent's] firing and post-firing conduct; the amount of time the parent spent looking for a job of equal caliber before accepting a lower paying job; whether the parent refused an offer of employment at a higher salary; whether the parent sought a job in the field in which he or she has experience and training; the availability of jobs for a person with the parent's level of education, training, and skills; the prevailing wage rates in the region; the parent's prior employment experience and history; and the parent's history of child support payment.

Id. at 480. The court's findings must be sufficiently specific so as to inform the appellate court of the basis for its order. In re Marriage of Campbell , 140 P.3d 320, 324 (Colo. App. 2006).

C. Analysis

¶ 12 Mother presented evidence at the hearing about her work in marketing and public relations and about her earnings. Her tax returns, admitted as exhibits during the hearing, reflected that her annual income from her business was $26,946 in 2014 and $23,533 in 2015 and that she earned $52,042 in 2016.

¶ 13 Mother testified that two months after losing her job in November 2016, she accepted a lower-paying position in the design field, earning $500 per week for eight weeks and then commissions at a rate of three to five percent per sale. Additionally, she accepted a short-term contract position with a digital marketing company where she had the potential to earn between $2000 and $4000 per month.

¶ 14 Mother further testified about her efforts to secure a higher-paying position in her field. She consulted online resources, sent out 150 resumes, and had many interviews, yet had not secured a position because, in her opinion, the public relations market was saturated.

¶ 15 The district court made findings regarding mother's income potential, and some of those findings appear to touch on the Martinez factors. See 70 P.3d at 480. For example, the court considered mother's prior employment experience and history as well as her testimony that the market for public relations positions was saturated. However, it did not explicitly find that mother was voluntarily underemployed and shirking her child support obligation, and the record does not support such findings. See Campbell , 140 P.3d at 324. Nor did the court make any findings concerning the reasonableness of mother's efforts to secure a full-time position at her previous salary. See Krejci , ¶ 29.

¶ 16 Thus, we remand the case to the district court for additional findings, reconsideration of mother's income, and recalculation of child support accordingly. See Martinez , 70 P.3d at 481 ; Krejci , ¶¶ 27-30 ; Campbell , 140 P.3d at 324-25.

III. Retroactive Child Support

¶ 17 Mother further contends that the district court erred in applying section 14-10-122(5), C.R.S. 2018, and ordering her to pay retroactive child support back to June 2015, when the parties' mutually agreed upon change in physical care of the children took place. We disagree with mother's contention that imposing a retroactive child support obligation under these circumstances is prohibited.

A. Standard of Review

¶ 18 We review child support orders for an abuse of discretion. In re Marriage of Atencio , 47 P.3d 718, 720 (Colo. App. 2002). We review the district court's application of legal standards and legal conclusions de novo. Connerton , 260 P.3d at 65.

B. Rules of Statutory Interpretation

¶ 19 Resolution of this appeal requires us to determine the meaning of section 14-10-122(5), which is a question of law that we review de novo. In re Marriage of Joel , 2012 COA 128, ¶ 18, 404 P.3d 1251.

¶ 20 When interpreting a statute, we look first to its plain language, giving the words and phrases their plain and ordinary meanings. § 2-4-101, C.R.S. 2018; Joel , ¶ 18. If the statute is clear, we apply it as written. Joel , ¶ 18. But if the statute is ambiguous, or susceptible of more than one reasonable meaning, we may determine the General Assembly's intent by looking to the legislative history. In re Marriage of Ikeler , 161 P.3d 663, 668 (Colo. 2007). "Our task is to choose a construction that gives effect to the legislature's intent and that serves the purpose of the overall statutory scheme." Id.

C. Legislative History and Legal Principles

¶ 21 Ordinarily, a child support modification order is effective as of the date the motion to modify is filed. See §§ 14-10-122(1)(a), (d) ; see also In re Marriage of Paige , 2012 COA 83, ¶ 7, 282 P.3d 506. However, when there has been a court-ordered, voluntary, or mutually agreed upon change in the physical care of a child, child support is modified as of the date of the change in care, rather than as of the date the motion to modify is filed. § 14-10-122(5) ; see also Paige , ¶ 7.

¶ 22 Prior to 2013, when a mutually agreed upon change in physical care occurred, section 14-10-122(5), C.R.S. 2012, allowed a court to retroactively modify those "provisions for child support of the obligor under the existing child support order." (Emphasis added.) Divisions of this court were split concerning whether that language permitted a parent's child support obligation to be retroactively modified when the parent was not an obligor under the existing child support order. Compare In re Marriage of White , 240 P.3d 534 (Colo. App. 2010) (construing statute according to its plain language to find that it permitted retroactive modification as to the obligor only), with In re Marriage of Emerson , 77 P.3d 923 (Colo. App. 2003) (construing statute more broadly to find that it intended to shift the support duty from the obligor parent to the obligee when a mutually agreed upon change in parental care occurred).

¶ 23 In Emerson , the division concluded that the district court had the authority to require the mother to pay child support as of the date when the father had assumed primary care of the parties' children, even though the mother was the obligee under the existing child support order. 77 P.3d at 926. The mother acknowledged that under section 14-10-122(5), as it then stated, the father's existing child support obligation could be terminated as of the date of the change in the children's care, but she argued that the statute did not permit shifting the child support obligation to her when she was not the obligor under the existing order. Id. at 925.

¶ 24 The division disagreed with the mother's interpretation, noting that if the statute were applied as she urged, the obligor parent's support obligation would end without an obligation being imposed on the other parent, causing the children to suffer a corresponding loss of support. Id. Concluding that such a result was illogical, the division determined that the statute instead intended to shift the support duty and the obligor's identity when the child's physical care changed through a retroactive modification of the existing order. Id. Therefore, under the Emerson division's interpretation, the court was authorized to require the mother to begin paying the father child support as of the date the children began living with the father. Id. at 926.

¶ 25 In White , a different division of this court declined to follow Emerson and instead concluded that the plain language of the statute permitted only the obligor's duty of support to be retroactively modified. White , 240 P.3d at 538. The mother in White agreed that the parties' child could live with the father and that the father could stop paying child support. Id. at 536. The father also agreed that the mother did not have to pay child support to him. Id. However, a year later, the father moved to modify child support, requesting that the mother pay him support as of the date the child began living with him. Id. Because the existing order obligated only the father to pay child support, the division held that the district court could properly reduce or eliminate his obligation retroactive to the date of the change in the child's physical care, but that it could not impose a child support obligation on the mother as of that date or for any period before the father moved to modify. Id. at 538.

¶ 26 The White division first noted that the Uniform Dissolution of Marriage Act, sections 14-10-101 to - 133, C.R.S. (2018), establishes procedures and considerations to enable courts to determine whether, when, and how much a parent should be required to pay to fulfill his or her duty to support a child. Id. at 539. It observed that under those procedures and considerations, only the noncustodial parent qualified as the obligor under an existing child support order, and the statute gave the obligor the choice, on assuming primary physical care of a child, of whether and when to file a motion requiring the other parent to begin paying child support. Id. at 540.

¶ 27 The division also disagreed with the Emerson division's conclusion that a narrow interpretation of the statute would cause a lapse in support during a child's minority. White , 240 P.3d at 539. The White division noted that even though the existing support order did not obligate the former custodial parent to make child support payments, the retroactive modification as of the change in physical care did not terminate that parent's child support obligation. Id. It further noted that section 14-10-122(5) "permits the court to retroactively modify the provisions for the child support of the obligor in the existing order as of the date of the change of custody to ensure that the parent who gives up custody," and no longer incurs the associated expenses, "does not receive a windfall." Id. at 540.

¶ 28 In 2013, the legislature amended section 14-10-122(5) in two ways. First, it clarified that a district court can modify or terminate the obligor's child support obligation as of the date physical care changed.

Notwithstanding the provisions of subsection (1) of this section, when a court-ordered, voluntary, or mutually agreed upon change of physical care occurs, the provisions for child support of the obligor under the existing child support order, if modified pursuant to this section, will be modified or terminated as of the date when physical care was changed.

Ch. 103, sec. 3, § 14-10-122(5), 2013 Colo. Sess. Laws 354 (emphasis added). Second, it added the following language: "The provisions for the establishment of a child support order based on a court-ordered, voluntary, or mutually agreed upon change of physical care may also be entered retroactively to the date when the physical care was changed." Id. We conclude that these modifications, when read together, still do not resolve the statute's ambiguity recognized in Emerson and White . In our view, the statute remains susceptible of multiple interpretations-one, that a court may modify or terminate only the obligor's child support obligation as of the date physical care changed, or two, that a court may establish a new child support obligation against either parent as of the date physical care changed.

¶ 29 In light of this ambiguity, we attempt to discern whether the legislature intended the amendments to address the White - Emerson conflict and, if so, whether it intended the amendments to validate the White or Emerson division's interpretation and application of the statute. We must engage in this examination of legislative intent because the statute is ambiguous. Thus, we look to the legislative history of the 2013 amendments to section 14-10-122(5), and we conclude that the General Assembly intended to change the statute in favor of the Emerson division's interpretation.

¶ 30 The amendments to section 14-10-122(5) were proposed in the House of Representatives in February 2013. When introducing the bill, the bill's sponsor indicated that the proposed amendments were based on recommendations from the Child Support Commission. Hearings on H.B. 13-1209 before the H. Pub. Health Care & Human Servs. Comm., 69th Gen. Assemb., 1st Sess. (Feb. 19, 2013) (statement of Representative May). The Child Support Commission is charged with reviewing the child support guidelines and recommending statutory amendments. See § 14-10-115(16). The Commission's 2011 report is the genesis of the legislature's 2013 amendments to section 14-10-122(5).

¶ 31 In its report, the Commission explicitly recognized the conflict between White and Emerson and recommended the statutory amendments "to empower a court with discretion to retroactively establish a child support obligation back to the date of the mutually agreed upon change of physical care." State of Colorado Child Support Commission, Final Report, at 41 (2011), https://perma.cc/2XB5-7LDR (emphasis added). The Commission provided three reasons in support of its amendments:

1. Parents owe a continuous duty to provide financial support for their child until emancipation, regardless of the location of the child's residence;
2. The duty to provide support should not lapse, during a child's minority, just because of a change in the residence of the child; and
3. The child is the person for whom support is due and a child should not be penalized because the new custodial party fails to promptly act to seek a modification of the existing order.

Id. Because these reasons mirror those set forth in Emerson , we conclude that the General Assembly's 2013 amendments to section 14-10-122(5) legislatively overrule White . Therefore, we further conclude that the statute allows a court to retroactively enter a child support order against either parent, as of the date of a change in physical care of a child, regardless of the parent's status as an obligor or obligee under the existing child support order.

D. Application

¶ 32 In this case, mother was the obligee under the existing child support order. In June 2015, when the parties agreed that their children would live with father, they also agreed that father's child support obligation would be reduced. Father then moved to modify child support, asking the court to retroactively establish a child support order from June 2015 forward.

¶ 33 Even though mother was the obligee under the existing child support order, the court, consistent with Emerson and as permitted by the 2013 amendments to section 14-10-122(5), retroactively established a child support order obligating mother to pay support as of the date the children began living with father. We therefore conclude that the court did not err by imposing a child support obligation on mother beginning in June 2015.

¶ 34 However, because we cannot discern whether the district court imposed the retroactive child support obligation as an act of discretion or imposed it under the mistaken view that it was required to do so, on remand, the district court must set forth the factors it considers in determining whether to impose such an obligation. Because we have remanded the case for the court to reconsider mother's income and redetermine child support accordingly, the court must also recalculate the parties' arrearages under subsections 14-10-122(1)(d) and (5). Because of this disposition, we do not address mother's additional argument that the court erred in assuming the parties' incomes remained unchanged for purposes of retroactive child support calculation. In its discretion, the district court may consider additional evidence from the parties.

¶ 35 Mother also argues that the court erred in awarding retroactive child support because doing so created an undue hardship and resulted in a substantial injustice for her, because she and father had an oral contract as to the modified child support, and because the doctrine of equitable estoppel relieved her of her obligation to pay retroactive child support. Because mother did not raise these arguments in the district court, however, we may not address them here. See Melat, Pressman & Higbie, L.L.P. v. Hannon Law Firm, L.L.C. , 2012 CO 61, ¶ 18, 287 P.3d 842 ("It is axiomatic that issues not raised in or decided by a lower court will not be addressed for the first time on appeal."); cf. In re Marriage of Boettcher , 2018 COA 34, ¶ 32, --- P.3d ---- (upholding retroactive modification order when parent did not argue a basis for undue hardship and substantial injustice in district court). In its discretion, however, the district court may consider these arguments on remand.

IV. Conclusion

¶ 36 The portion of the district court's order retroactively establishing a child support obligation for mother is affirmed, the portion of the order determining mother's income is reversed, and the case is remanded for further proceedings as provided herein.

JUDGE BERNARD and JUDGE WELLING concur.


source: Caselaw Access Project

author: Opinion by JUDGE HAWTHORNE

license: Public Domain

text:
    Brian NANEZ, Petitioner, v. INDUSTRIAL CLAIM APPEALS OFFICE of the State of Colorado; Mechanical & Piping, Inc. ; and Pinnacol Assurance, Respondents.
    Court of Appeals No. 17CA1171
    Colorado Court of Appeals, Division IV.
    Announced November 15, 2018
    Kaplan Morrell LLC, Michael H. Kaplan, Greeley, Colorado; Volant Law LLC, J. Bryan Gwinn, Englewood, Colorado, for Petitioner
    No Appearance for Respondent Industrial Claim Appeals Office
    Harvey D. Flewelling, Denver, Colorado, for Respondents Mechanical & Piping, Inc., and Pinnacol Assurance
    Burg Simpson Eldredge Hersh & Jardine, P.C., John M. Connell, Englewood, Colorado, for Amicus Curiae Workers' Compensation Education Association
    Burg Simpson Eldredge Hersh & Jardine, P.C., Nelson Boyle, Englewood, Colorado, for Amicus Curiae Colorado Trial Lawyers Association
   Opinion by JUDGE HAWTHORNE

¶ 1 In this workers' compensation case, claimant, Brian Nanez, seeks review of a final order of the Industrial Claim Appeals Office (Panel), which affirmed an order by the administrative law judge (ALJ) determining that (1) Mechanical & Piping, Inc., and Pinnacol Assurance (collectively, employer) aren't liable to pay for medically prescribed conservator and guardian services under section 8-42-101(1)(a), C.R.S. 2018; and (2) Mr. Nanez's average weekly wage (AWW) shouldn't be increased. We affirm the Panel's final order.

¶ 2 In doing so, we address an issue of first impression as to section 8-42-101(1)(a) 's language requiring "[e]very employer ... [to] furnish such medical ... treatment ... as may reasonably be needed at the time of the injury ... and thereafter during the disability to cure and relieve the employee from the effects of the injury." Specifically, we address whether this language covers the costs of providing conservator or guardian services to a permanently and totally disabled claimant suffering from a traumatic brain injury. Under the circumstances here, we conclude that the statutory language doesn't cover the costs of conservator or guardian services for Mr. Nanez because the conservator services don't help care for or remedy his injury and Mr. Nanez didn't establish that the guardian services are reasonably needed to cure and relieve him from the effects of his injury.

I. Facts and Procedural History

¶ 3 Mr. Nanez worked as a plumber for Mechanical & Piping, Inc. As a result of a work-related accident, he sustained permanent, disabling closed head injuries, causing significant cognitive deficits. Mr. Nanez's authorized treating physician, Dr. Hugh Macaulay, and the physician who conducted a division-sponsored independent medical examination placed Mr. Nanez at maximum medical improvement (MMI) with a permanent impairment rating of forty-seven percent of the whole person, with forty percent of that being attributed to his brain injury. Employer admitted liability for permanent total disability.

¶ 4 Dr. Macaulay's MMI and impairment report noted that Mr. Nanez's brain injury prevented him from "maintain[ing] his function and independence." He described Mr. Nanez as having "executive function, but it is impaired"; "fair" short term memory; and "somewhat unreliable" recent memory. Mr. Nanez requires assistance with everyday tasks such as grocery shopping, banking, and navigating around town.

¶ 5 Because of Mr. Nanez's cognitive impairments, Dr. Macaulay concluded that Mr. Nanez "will need to have oversight for his financial and medical management." And deeming their services to be "reasonable and necessary," Dr. Macaulay recommended that both a conservator and a guardian be appointed to function as Mr. Nanez's "peripheral brain." In a separate proceeding, a district court appointed both a conservator and a guardian for Mr. Nanez.

¶ 6 Mr. Nanez asked for a hearing, seeking an order requiring employer to pay for the conservator's and guardian's services under section 8-42-101(1)(a). He also asked that his AWW be increased to cover his lost potential earning capacity, reflecting wages he would've earned as a master plumber had he not been injured.

¶ 7 The ALJ denied both requests. Applying section 8-42-101(1)(a), he was "not persuaded that the [Workers' Compensation] Act provide[d] [him] with the authority to require [employer] to pay for a guardian and conservator to manage [Mr. Nanez's] workers' compensation benefits." And he found that the services of a conservator and a guardian were "legal in nature," noting that court cases allowing for housekeeping services are based on those services having relieved "the symptoms and effects of the injury and were directly associated with [the] claimant's physical needs."

¶ 8 As to the conservator's services specifically, the ALJ found that "ensuring that [Mr. Nanez] handles his finances does not cure or relieve [him] from the effects of the industrial injury," and even with such services, "[Mr. Nanez's] physical condition remains the same, although his financial situation may improve." And, as to the guardian's services, the ALJ found that "[Mr. Nanez's] medical records document a long history of medical treatment ... prior to [him] having a guardian appointed," and that "the medical records do not document that [the issues as to Mr. Nanez's independent judgment involving his medical care, including taking medications] significantly affected [Mr. Nanez's] ability to receive appropriate medical treatment." So the ALJ found that "Mr. Nanez] ha[d] failed to establish that the duties of a guardian in managing [his] treatment and ongoing care are reasonable and necessary," and that employer "may be able to provide the same services for [Mr. Nanez] through the use of a nurse case manager."

¶ 9 The ALJ also concluded that Mr. Nanez's request to increase his AWW was "too speculative." And he noted that despite Mr. Nanez's professed intent prior to the accident to continue working as a plumber and earn his master plumber certification, it was "impossible to ascertain what would have happened with [Mr. Nanez] if not for his workers' compensation injury."

¶ 10 The Panel affirmed the ALJ's rulings. It followed the ALJ's reasoning, relying on Bogue v. SDI Corp. , 931 P.2d 477 (Colo. App. 1996), Edward Kraemer & Sons, Inc. v. Downey , 852 P.2d 1286 (Colo. App. 1992), and Country Squire Kennels v. Tarshis , 899 P.2d 362 (Colo. App. 1995). The Panel read these cases as reflecting the court of appeals' conclusion that section 8-42-101(1)(a) doesn't allow expenses for services that merely improve a claimant's lifestyle or assist with daily tasks. And, it held that a conservator's "functions are primarily financial and are not accurately described as medical or nursing services. Accordingly, they are not compensable expenses."

¶ 11 The Panel also held that a guardian's services "fail to fall easily into the category of medical benefits." And it noted that the statute governing guardians prohibits an individual from serving as both a guardian and a "direct service provider" to an incapacitated person, see § 15-14-310(5), C.R.S. 2018, and that such "activities are largely outside of a reasonable definition of medical care."

¶ 12 As to Mr. Nanez's request to increase his AWW, the Panel found that the ALJ

didn't err in applying the law and didn't abuse his discretion in determining that such an increase was speculative.

II. The Conservator's and Guardian's Services

¶ 13 On appeal, Mr. Nanez doesn't clearly say how he thinks the Panel erred in its final order. Instead, he contends broadly that employer "should be liable to pay for the fiduciary services of a court-appointed [g]uardian and [c]onservator that provide relief from his brain injury" and that "fiduciary services that are required to compensate for an injured worker's lost brain functioning are medical benefits under the statute because such services relieve the effects of the brain injury."

¶ 14 Mr. Nanez also contends that employer failed to submit any rebuttal testimony or evidence at the hearing to contradict his evidence, and that the ALJ abused his discretion by disregarding the undisputed evidence that his injuries affect his ability to perform daily tasks. He asserts that his cognitive deficits render tasks such as banking, taking medication, following physicians' instructions, and managing his money nearly impossible. He argues that the conservator and guardian carry out these functions on his behalf, essentially acting as his "peripheral brain," and thus "reliev[e] the effects" of his admitted, work-related injuries.

¶ 15 Finally, Mr. Nanez contends that substantial evidence, without any contrary evidence, supports a finding that the conservator's and guardian's services are reasonable and necessary.

¶ 16 Employer responds that we needn't interpret section 8-42-101(1)(a) to determine whether the fees for the conservator's or guardian's services constitute medical treatment that must be provided under the statute because the ALJ's factual finding that those services aren't reasonable and necessary in this case is supported by substantial evidence.

¶ 17 We disagree with Mr. Nanez and conclude that substantial record evidence supports the ALJ's finding that Mr. Nanez failed to establish that the conservator's and guardian's services are reasonable and necessary in this case.

A. Standard of Review and Law

¶ 18 We review an administrative agency's conclusions of law de novo. Specialty Rests. Corp. v. Nelson , 231 P.3d 393, 397 (Colo. 2010). Though we afford considerable weight to an agency's reasonable interpretation of its own enabling statute, we aren't bound by its legal interpretations. Id. We also defer to the interpretation of a statute adopted by the officer or agency charged with its administration as long as that interpretation is consistent with the statute. Id.

¶ 19 We are bound by and may not set aside the ALJ's factual findings if they are supported by substantial evidence in the record. See § 8-43-308, C.R.S. 2018; Paint Connection Plus v. Indus. Claim Appeals Office , 240 P.3d 429, 431 (Colo. App. 2010) ("When an ALJ's findings of fact are supported by substantial evidence, we are bound by them."); Leewaye v. Indus. Claim Appeals Office , 178 P.3d 1254, 1256 (Colo. App. 2007). As the fact finder, the ALJ may resolve conflicts in the evidence, make credibility determinations, determine the weight to be accorded to expert testimony, and draw plausible inferences from the evidence. Kroupa v. Indus. Claim Appeals Office , 53 P.3d 1192, 1197 (Colo. App. 2002).

¶ 20 "A claimant in a workers' compensation claim shall have the burden of proving entitlement to benefits by a preponderance of the evidence...." § 8-43-201(1), C.R.S. 2018.

B. Compensable Medical Treatment Under the Statute

¶ 21 Section 8-42-101(1)(a) requires "[e]very employer ... [to] furnish such medical, surgical, dental, nursing, and hospital treatment, medical, hospital, and surgical supplies, crutches, and apparatus as may reasonably be needed at the time of the injury ... and thereafter during the disability to cure and relieve the employee from the effects of the injury."

¶ 22 We conclude that the conservator's and the guardian's services aren't medical treatment as that term is used in section 8-42-101(1)(a). It follows that employer isn't liable to pay for such services as compensable medical treatment under the statute.

¶ 23 We also conclude that substantial record evidence supports the ALJ's factual findings that (1) the conservator's services in handling Mr. Nanez's finances don't cure or relieve him of his injury's effects, and his "physical condition remains the same, although his financial situation may improve" with such services; and (2) Mr. Nanez failed to establish that the guardian's duties in managing his treatment and ongoing care are reasonable and necessary.

¶ 24 Under the plain language of section 8-42-101(1)(a), the claimed expenses must be for medical or nursing treatment or incidental to obtaining such medical or nursing treatment. Bellone v. Indus. Claim Appeals Office, 940 P.2d 1116, 1118 (Colo. App. 1997) (citing Country Squire Kennels , 899 P.2d 362 ). And the service provided must be reasonably needed to cure and relieve the injury's effects and be related to the claimant's physical needs. Id. (citing Hillen v. Tool King , 851 P.2d 289 (Colo. App. 1993) ). In other words, to be considered a medical benefit under the statute, the service must be a medical service that is reasonably necessary for treating the injury or that provides therapeutic relief from the injury's effects. See Bogue , 931 P.2d at 478 (applying the statutory interpretation in Cheyenne County Nursing Home v. Industrial Claim Appeals Office , 892 P.2d 443, 445 (Colo. App. 1995), which states that the statute requires "the apparatus or service have therapeutic benefit" (emphasis added), to support a claim for wheelchair-accessible van as medical "apparatus" or benefit).

1. Claim for Conservator's Services

¶ 25 Mr. Nanez's claim for the conservator's services is analogous to the claims made and rejected in Cheyenne and Bogue . Certainly, we recognize that those cases involved claims for a medical apparatus under subsection 101(1)(a), but we conclude that the principles enunciated therein are equally applicable to claims under the same statutory subsection for services asserted to be "medical treatment." After all, the statutory terms "treatment" and "apparatus" are both modified by the term "medical" and therefore refer to a treatment or an apparatus used "as may reasonably be needed ... to cure and relieve the employee from the effects of the injury." § 8-42-101(1)(a) ; see ABC Disposal Servs. v. Fortier , 809 P.2d 1071, 1072 (Colo. App. 1990) (interpreting section 8-42-101 's predecessor statute and stating that the term "apparatus" refers to a medical apparatus used for treatment "to cure and relieve from the effects of the injury"; therefore, a snowblower wasn't prescribed as a medical aid to cure or relieve the claimant of symptoms of his injury, but instead to provide an easier way to perform a household chore).

¶ 26 In Cheyenne , another division of this court denied the request of a quadriplegic, wheelchair-restricted claimant for a stair glider to allow her access to her basement during dangerous weather. In doing so, the division relied on Hillen , 851 P.2d 289 (denying lawn care service not prescribed to cure or relieve symptoms of the claimant's injury, but only to relieve claimant from the rigors of yard work), and held that "the employer's obligation was limited to providing services that relieved the symptoms of the injury and which provided for the claimant's direct physical needs." 892 P.2d at 445. The division ultimately concluded that "the stair glider provide[d] no therapeutic benefit relative to [the claimant's] disabling injury," nor was it "necessary for access to health or medical necessities." Id. at 446.

¶ 27 The Bogue division relied on Cheyenne in concluding that, under the facts before it, a wheelchair-accessible van wasn't a compensable medical "apparatus" or benefit. Bogue , 931 P.2d at 478. The claimant had suffered a work-related accident that rendered him an incomplete quadriplegic. Following the Cheyenne division's lead, the Bogue division held that for a particular apparatus to be a statutory medical benefit, "it must be a medical apparatus that is reasonably necessary for treatment of the injury or that provides therapeutic relief from the effects of the injury." Id. And based on this reasoning, the division concluded that the requested van wasn't a medical aid reasonably necessary for treating the claimant's injury because the van wouldn't help care for or remedy the claimant's quadriplegia, nor would it provide therapeutic medical relief from the injury's effects or symptoms. Id. at 479.

¶ 28 We likewise conclude that the conservator's services provided by her exercising her powers "granted in ... § 15-14-425" for Mr. Nanez's benefit to assist him with his workers' compensation claim and with handling his finances won't help care for or remedy Mr. Nanez's cognitive deficiencies caused by his traumatic brain injury. As the ALJ found, "ensuring that [Mr. Nanez] properly handles his finances does not cure or relieve [him] from the effects of the industrial injury"; in other words, Mr. Nanez's "physical condition remains the same, although his financial situation may improve."

¶ 29 The ALJ's finding and our conclusion are supported by substantial record evidence-namely, an opinion letter from Dr. Macaulay, Dr. Macaulay's MMI report, and Dr. Macaulay's testimony at the hearing. First, in the letter, Dr. Macaulay said that he and Mr. Nanez's psychiatrist and psychologist agree that Mr. Nanez doesn't have the ability to adequately supervise conventional functions of daily life, and "to that end," they recommended "both a guardian and a conservator to provide him with adequate management in his activities of daily living." Second, in his MMI report, Dr. Macaulay said that "Mr. Nanez has significant need for supervision," and he needs "someone to oversee his planning, use of financial resources and protect him from other individuals and facilitate interactions." Finally, Dr. Macaulay testified at the hearing that because of Mr. Nanez's brain injury, he requires assistance with everyday tasks such as taking medication, following physicians' instructions, navigating around town, grocery shopping, banking, and managing his money.

¶ 30 But "compensation is not awarded ... if the only services being rendered to the claimant are ordinary household services." Edward Kraemer & Sons , 852 P.2d at 1288 ; see also ABC Disposal Servs. , 809 P.2d at 1073 (holding that snowblower wasn't prescribed as medical aid to cure or relieve injury's symptoms, but to provide easier method of performing a household chore).

¶ 31 Dr. Macaulay didn't say that the conservator's services in managing Mr. Nanez's finances were necessary for treating Mr. Nanez's brain injury or that such services would provide therapeutic relief from the injury's effects. Instead, he said that the conservator's services would act as a "peripheral brain" in the same manner that a seeing-eye dog "serves as peripheral eyesight," and that Mr. Nanez "needs help in guiding him in what he should be doing." Dr. Macaulay also described what he would want the conservator to do as to Mr. Nanez's medical treatment and keeping him safe: "In regard to his medical treatment, I would like any comments or thoughts ...[,] but the management of the medical is going to be mine and the management of the financial is going to be [hers]." And finally, Dr. Macaulay testified that "at this point, we're not going to improve [Mr. Nanez's] function."

¶ 32 Based on this substantial record evidence, we conclude that the conservator's services don't help care for or remedy Mr. Nanez's traumatic brain injury or his resulting cognitive disabilities. Nor do her services provide Mr. Nanez therapeutic medical relief from his injury's effects or symptoms. So we reject Mr. Nanez's contention that employer is statutorily liable to pay for the conservator's services. We also reject his contention that, as to the conservator's services, the ALJ abused his discretion by disregarding the undisputed evidence that his injuries affect his ability to carry out daily tasks. As indicated above, the ALJ's finding that although the conservator's services assist Mr. Nanez in improving his financial situation, his physical condition remains the same, is supported by substantial record evidence. See § 8-43-308.

2. Claim for Guardian's Services

¶ 33 The ALJ found that Mr. Nanez "failed to establish that the duties of a guardian in managing [his] treatment and ongoing care are reasonable and necessary in this case." Mr. Nanez contends that substantial evidence, without any contrary evidence, supports a finding that the guardian's services are reasonable and necessary. We disagree that no contrary evidence supported the ALJ's finding.

¶ 34 Determining whether services are either medically necessary to treat a claimant's injuries or incidental to obtaining such treatment presents a factual question. Bellone , 940 P.2d at 1117. We must uphold an ALJ's resolution of a factual question that is supported by substantial evidence. Id. at 1117-18. "Substantial evidence is that which is probative, credible, and competent, such that it warrants a reasonable belief in the existence of a particular fact without regard to contradictory testimony or inference." City of Loveland Police Dep't v. Indus. Claim Appeals Office , 141 P.3d 943, 950 (Colo. App. 2006).

¶ 35 The ALJ acknowledged Mr. Nanez's argument that the guardian's services allow him to schedule and attend medical appointments. But he found that the same type of service could be provided by a less restrictive measure. The ALJ based his finding on extensive medical records documenting Mr. Nanez's long history of medical treatment prior to the guardian being appointed. And he found that although Dr. Macaulay testified to some significant doubts about Mr. Nanez's judgment as to his medical care, including taking medications, Mr. Nanez's medical records didn't document those issues as having significantly affected his ability to receive appropriate medical treatment. The ALJ also found that employer may be able to provide the same services as a guardian in managing Mr. Nanez's treatment and ongoing care by using a nurse case manager to schedule his medical appointments and remind him of upcoming appointments.

¶ 36 As we read these findings, they rest on the premise that a nurse case manager can provide the services Mr. Nanez needs in managing his treatment and ongoing care for his work-related injury. We conclude that these findings are supported by substantial record evidence. Specifically, the record shows that a nurse case manager assisted in Mr. Nanez's care for approximately seven months. Her twenty-two pages of detailed medical review notes for that period show that, among other things, she maintained contact with Mr. Nanez's medical providers to keep updated on his progress, facilitated treatment recommendations and Mr. Nanez's compliance with those recommendations, monitored his medications and complaints for possible medical needs, and on at least one occasion attended a medical appointment with him. We have found nothing in the record, and Mr. Nanez hasn't pointed us to anything, indicating that the type of services provided by the nurse case manager were insufficient to manage Mr. Nanez's medical treatment and ongoing care. And Mr. Nanez concedes in his opening brief that "some of the [g]uardian's duties resemble services that could theoretically be provided by Pinnacol and/or a [nurse case manager]," and that Pinnacol assigned another nurse case manager to Mr. Nanez's case after the hearing. So we conclude that substantial record evidence supports the ALJ's finding that a nurse case manager may be able to provide the same services as a guardian would in managing Mr. Nanez's treatment and ongoing care.

¶ 37 Still, Mr. Nanez argues that the guardian complements the nurse case manager by providing fiduciary services and the "sort of hand holding" his brain injury requires. But, again, the ALJ found, based on the record of Mr. Nanez's long medical history, that these issues hadn't affected Mr. Nanez's receiving appropriate medical treatment. Again, our review of the record doesn't show otherwise and Mr. Nanez hasn't pointed us to anything in the record showing otherwise.

¶ 38 We therefore conclude that the ALJ's factual findings are supported by substantial evidence, and we affirm the Panel's determination that Mr. Nanez failed to establish that the services of the guardian are reasonable and necessary in this case.

¶ 39 Finally, we note that "[t]he purpose in requiring an employer to provide medical benefits under the Act is to allow an injured worker to reach maximum medical improvement and maintain that status." Bogue , 931 P.2d at 480 (citing Grover v. Indus. Comm'n , 759 P.2d 705 (Colo. 1988) ). But, as with the wheelchair-accessible van in Bogue , the conservator's and the guardian's services here weren't prescribed as medical treatment to cure Mr. Nanez's traumatic brain injury or relieve him from its medical effects. Instead, these services were prescribed as a way of helping Mr. Nanez deal with everyday tasks of daily life. "While these are certainly salutary goals, they are beyond the intent of § 8-42-101(1)(a)." Id. And whether the services necessary to meet these salutary goals should be compensable under the statute is an intrinsically legislative decision that we must avoid making. Town of Telluride v. Lot Thirty-Four Venture, L.L.C. , 3 P.3d 30, 38 (Colo. 2000) (it's not up to a court to make or weigh policy).

III. Requested AWW Increase

¶ 40 Mr. Nanez contends that the Panel erred in affirming the ALJ's denial of an increase to his AWW. We affirm this portion of the Panel's order.

¶ 41 The ALJ found that Mr. Nanez's request to increase his AWW based on his intent to earn a master plumber certification "would require too much speculation as to what Mr. Nanez would have done if not for the work injury." Mr. Nanez argues that because the uncontroverted evidence established that he had "career aspirations," "plans ... to continue in commercial plumbing," and "expectations" of obtaining his plumbers' license, his future AWW wasn't speculative but instead showed a demonstrated intent to pursue master plumber certification. Indeed, he argues, the evidence showed that his income was likely to increase. He argues that it would be "manifestly unjust" to freeze his wages at the amount he was earning when he was injured given that he potentially could have earned much more. So, he reasons, the ALJ should have acted under his discretionary authority to adopt a more equitable AWW.

¶ 42 We aren't persuaded. We agree with the ALJ and the Panel that "expectations," "a plan," and "career aspirations" don't constitute sufficient concrete steps toward Mr. Nanez's goal of becoming a master plumber to support an increase in AWW. Because any number of unforeseen barriers could have inhibited Mr. Nanez's intent to become a master plumber, we perceive no abuse of discretion in the ALJ's finding that Mr. Nanez's future earnings were too speculative to warrant increasing his AWW.

¶ 43 Under the Act, an ALJ "may compute the average weekly wage of [an] employee in such other manner and by such other method as will, in the opinion of the director based upon the facts presented, fairly determine such employee's average weekly wage." § 8-42-102(3), C.R.S. 2018. This provision grants an ALJ wide discretion to determine a claimant's AWW. Because the determination is discretionary, we won't set it aside absent a showing that the ALJ abused his discretion. "Because the authority to select an alternative method for computing the average weekly wage is discretionary, we may not interfere with the ALJ's order unless it is beyond the bounds of reason, that is, where it is unsupported by the evidence or contrary to law." Pizza Hut v. Indus. Claim Appeals Office , 18 P.3d 867, 869 (Colo. App. 2001).

[T]he claimant's average weekly wage is to be calculated "in such other manner and by such other method as will, in the opinion of the [ALJ] " fairly compensate a claimant. The method of calculation to be used in the ultimate determination of the claimant's award then ... is to be left in the first instance to the ALJ. Put simply, the ALJ should be allowed to employ the discretion accorded him or her ... before a court expropriates that discretion by ordering a specific compensation award to the claimant.

Coates, Reid & Waldron v. Vigil , 856 P.2d 850, 857-58 (Colo. 1993) (citation omitted).

¶ 44 The ALJ found that Mr. Nanez's professed plan to earn his master plumber certification was simply that-a plan with no concrete steps taken toward its execution. Distinguishing the facts before him from those in Pizza Hut , the ALJ noted that unlike Mr. Nanez, the injured worker in Pizza Hut had completed his degree and begun a job in his field of choice. See 18 P.3d at 868. Mr. Nanez, by contrast, hadn't yet enrolled in classes to become a master plumber when he was injured. Thus, although Mr. Nanez testified that he had hoped to become a master plumber and own his own plumbing business, those goals were merely aspirational at the time of his accident. We can't say that the ALJ abused his discretion in deciding that Mr. Nanez's potential future wages were too speculative to warrant increasing his AWW.

¶ 45 Because the ALJ's decision declining to increase Mr. Nanez's AWW is supported by substantial record evidence, the Panel properly affirmed it. See Coates, Reid & Waldron , 856 P.2d at 857-58 ; Pizza Hut , 18 P.3d at 869.

IV. Conclusion

¶ 46 The Panel's final order is affirmed.

J. Jones and Vogt , JJ., concur

      Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5 (3), and § 24-51-1105, C.R.S. 2018.


author: Opinion by JUDGE TOW

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Jasmine Eloisa SALGADO, Defendant-Appellee.
    Court of Appeals No. 18CA0885
    Colorado Court of Appeals, Division IV.
    Announced January 10, 2019
    Philip J. Weiser, Attorney General, Robert M. Booth, First Assistant Attorney General, Jacquelynn N. Rich Fredericks, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellant
    Antony Noble, Alternate Defense Counsel, Lakewood, Colorado, for Defendant-Appellee
   Opinion by JUDGE TOW

¶ 1 In this case, we are asked to decide whether an executive order issued thirty years ago provides continuing authorization for the Attorney General to prosecute Medicaid fraud and patient abuse cases across the state. We hold that it does and therefore reverse the order dismissing the charges against defendant, Jasmine Eloisa Salgado.

I. Factual Background

¶ 2 On March 4, 1987, then-Governor Roy Romer promulgated Colorado Executive Order No. D 0017 87, Continuing the Colorado Medicaid Fraud Control Unit in the Colorado Department of Law (the 1987 Executive Order). This executive order requires the Attorney General, through the Medicaid Fraud Control Unit (the MFCU), to investigate and prosecute Medicaid fraud and patient abuse cases "either in his capacity as attorney general, or when so designated, acting in the capacity of a special deputy district attorney." Id. The 1987 Executive Order has never been repealed, rescinded, or modified.

¶ 3 In December 2017, the MFCU filed a felony charge involving neglect of an at-risk adult against Salgado, an employee of an assisted living facility. The Jefferson County District Attorney filed a notice asserting that the Attorney General lacked legal authority or jurisdiction to file and prosecute this case. Specifically, the District Attorney argued that the executive order was an unconstitutional exercise of legislative power by the Governor, that the executive order did not authorize the Attorney General to prosecute cases in her own name, and that the executive order had been superseded by legislation.

¶ 4 The district court rejected the third argument and did not address the second. The court then reframed the District Attorney's first argument, asking if "a former governor [can] require the current Attorney General to act" and, more generally, how long a governor's executive order lasts. It then found that "Governor Romer had the authority to require the Attorney General to investigate and prosecute Medicaid fraud and patient abuse cases during his terms as governor" but that "reliance on the 1987 order to confer authority in 2018 would be an unconstitutional exercise of legislative power by the executive branch." It further found that "a former governor cannot require the current Attorney General to act." The district court then dismissed the charge.

¶ 5 The Attorney General appealed, and Salgado responded. The Jefferson County District Attorney, however, did not seek to intervene or otherwise assert its position before this court.

II. The Executive Order

¶ 6 No one involved in this case appears to challenge the Governor's general authority to direct the Attorney General to prosecute certain cases. Pursuant to section 24-31-101(1)(a), C.R.S. 2018, the Attorney General must "appear for the state and prosecute and defend all actions and proceedings, civil and criminal, in which the state is a party or is interested when required to do so by the governor...." When the Attorney General is required to prosecute a case, whether by the Governor or the General Assembly, "he becomes to all intents and purposes the district attorney, and may in his own name and official capacity exercise all the powers of such officer, for he is then, and in that case, the public prosecutor." Harrah v. People ex rel. Attorney Gen. , 125 Colo. 420, 427, 243 P.2d 1035, 1038 (1952) (quoting People v. Gibson , 53 Colo. 231, 244, 125 P. 531, 536 (1912) ).

¶ 7 Instead, we are asked to determine whether the particular grant of authority in the 1987 Executive Order went beyond what is authorized by section 24-31-101(1)(a).

A. Review

¶ 8 As an initial matter, we note that the parties dispute what, precisely, the district court ruled. The People argue the district court incorrectly found that the 1987 Executive Order had, in fact, expired at the conclusion of Governor Romer's term in office. Salgado, on the other hand, asserts the district court found that orders directing the Attorney General to prosecute cases under section 24-31-101(1)(a) must contain a "temporal and spatial framework" and, therefore, the broad grant of authority contained in the 1987 Executive Order could not support a prosecution so long after it was issued. We need not distinguish between these diverging interpretations of the district court's order because under either interpretation, the district court erred.

¶ 9 We first ask whether an order directing the Attorney General to prosecute certain cases pursuant to section 24-31-101(1)(a) necessarily expires-either when the issuing governor leaves office or at some undefined point thereafter-or whether it remains in effect until rescinded or supplanted. We must also consider whether the 1987 Executive Order was an improper exercise of legislative authority by Governor Romer, either when it was promulgated or at some point in the future.

¶ 10 Both questions require constitutional and statutory interpretation, presenting questions of law we review de novo. Gessler v. Colo. Common Cause , 2014 CO 44, ¶ 7, 327 P.3d 232. We review an executive order under the same standard used to review a statute or ordinance. Stamm v. City & Cty. of Denver , 856 P.2d 54, 56 (Colo. App. 1993). "Thus, an executive order is presumed to be constitutional, and the burden is on a party attacking it to prove its unconstitutionality beyond a reasonable doubt." Id.

B. The 1987 Executive Order Did Not Expire

¶ 11 In its ruling, the district court made several references to the age of the 1987 Executive Order. It also expressed "concern" that the governor issuing the order had left office in January 1999. Finally, the district court stated that it "[took] no issue with the Executive Order and the effect of the order while Governor Romer was in office." Thus, though not explicitly stated, it appears that the district court concluded that the 1987 Executive Order expired at the end of Governor Romer's term.

¶ 12 As a general rule, executive orders validly issued pursuant to legislative or constitutional grants of authority remain in effect until revoked, modified, or superseded by later authority, and remain in effect beyond the expiration of the term of the governor who issued them. 81A C.J.S. States § 257, Westlaw (database updated Dec. 2018); see also McGinness v. Hunt , 57 Ariz. 70, 111 P.2d 65, 73-74 (1941) ; Baxter v. State , 134 Ga.App. 286, 214 S.E.2d 578, 582 (1975). Colorado's appellate courts have not had the occasion to address this issue. However, in at least one case, a division of this court has given present effect to an executive order that had been issued by a governor no longer in office at the time the executive order was invoked. See Kilpatrick v. Indus. Claim Appeals Office , 2015 COA 30, 356 P.3d 1008 (in a dispute arising in 2011, giving effect to a 2001 executive order). Thus, we are aware of no authority, and have been provided with none, to support the district court's tacit conclusion that executive orders expire along with the term of the issuing governor.

¶ 13 The district court also appeared to agree with the District Attorney's position, adopted by Salgado in this appeal, that there must be some "temporal and spatial framework" to a gubernatorial delegation of prosecutorial authority to the Attorney General. However, we are again aware of no authority dictating that such executive orders must expire after the governor who issued them leaves office. Nor are we aware of authority suggesting that such executive orders must expire after the lapse of some undefined period deemed sufficient by a court. Most importantly, such a rule finds no support in the language of section 24-31-101(1)(a).

¶ 14 Again, section 24-31-101(1)(a) requires the Attorney General to "appear for the state and prosecute and defend all actions and proceedings, civil and criminal, in which the state is a party or is interested when required to do so by the governor...." By its terms, it does not require the Governor, in directing the Attorney General, to restrict his or her directive to a geographic area, timeframe, or set of specific cases. The only requirement is that the state be "a party or ... interested." Id.

¶ 15 The supreme executive power is vested in the Governor. Colo. Const. art. IV, § 2. However, this power vests in the office, not the individual person inhabiting the office at any given time. An executive order, in other words, is the mandate of the office of the Governor, not the individual holding the title. Such a declaration of law no more expires at the end of the individual's term than a statute enacted by the Seventy-First General Assembly expired upon the opening of the first regular session of the Seventy-Second General Assembly in January 2019. This continuity of the law is "inherent and necessary to preservation of the stability and the integrity of our constitutional government." Baxter , 214 S.E.2d at 582.

¶ 16 In short, we agree with the great weight of historical treatment of executive orders across the nation. We hold that, absent some clear limitation on the effective lifespan of an executive order, or some limitation in the terms of the executive order itself, an executive order remains in effect until modified, rescinded, or superseded, and it does not expire merely because the issuing governor is no longer in office.

C. The 1987 Executive Order Was Not a Legislative Act

¶ 17 The district court determined that "reliance on the 1987 order to confer authority would be an unconstitutional exercise of legislative power by the executive branch as applied to this case." Again, this conclusion appears to flow from the district court's belief that any executive order directing the Attorney General to prosecute cases must include a "temporal and spatial framework" restricting the Attorney General's prosecutorial authority. As we discussed above, there is no such requirement in the legislative grant of authority, and we may not amend the statute to impose one. See Estate of Brookoff v. Clark , 2018 CO 80, ¶¶ 5-6, 429 P.3d 835 (explaining that we are not free to carve out exceptions or limitations not provided by the terms of the statute).

¶ 18 Salgado argues that the district court correctly relied on two cases to find that a governor cannot issue a "blanket grant of authority" for the Attorney General to "prosecute a class of cases throughout the state for an indefinite period of time." We are not persuaded.

¶ 19 The first of these cases, People ex rel. Witcher v. District Court , reaffirmed that the authorization for the Attorney General to prosecute criminal cases did not conflict with a statute establishing the duties of district attorneys. 190 Colo. 483, 549 P.2d 778 (1976). The court in Witcher did not address the outer limitations of the Governor's authority to direct the Attorney General. Id. And while the executive order at issue in Witcher did pertain to an arguably more limited set of cases-" 'all actions and proceedings' stemming from disorders occurring within the Colorado state penitentiary"-nothing in the court's opinion suggested that the limited scope of the order was a prerequisite to finding it valid. Id. at 484, 549 P.2d at 779.

¶ 20 Likewise, in Colorado v. ASARCO, Inc. , 616 F.Supp. 822, 828 (D. Colo. 1985), a federal district court addressed whether a particular executive order directing the Attorney General to file claims concerning damages to natural resources at a particular site also "authorize[d] the Attorney General to proceed with claims for costs of removal and remedial action" on that site. The court was not asked to, and did not, decide precisely how an executive order must identify cases for the Attorney General to prosecute. Id.

¶ 21 Witcher does shed some light on Salgado's argument that the Governor can only authorize the Attorney General to act as a specially deputized district attorney, and not to prosecute in the Attorney General's own name. Significantly, the dispute in Witcher arose when the District Attorney asserted that he, and not the Attorney General, was the proper prosecutorial authority. People ex rel. Witcher v. Dist. Court , 190 Colo. 483, 484, 549 P.2d 778, 779 (1976). Clearly, then, the District Attorney had not deputized the Attorney General. Nevertheless, the Colorado Supreme Court held that the Governor's action properly authorized the Attorney General to assume the prosecutorial mantle in the designated types of cases. Id. at 485, 549 P.2d at 780. Salgado's argument, therefore, is at least unsupported if not directly contradicted by Witcher .

¶ 22 Other than on this point, Witcher and ASARCO offer little to no guidance in determining the breadth of a governor's power to direct the Attorney General to prosecute cases. Nor are they instructive on the issue of whether the 1987 Executive Order was an act of legislative, rather than executive, power.

¶ 23 Fortunately, little illumination on this point is needed beyond a straightforward view of the 1987 Executive Order itself. The order does not purport to create any new offenses or establish penalties for any act. It does not seek to announce any policy or agenda. Rather, it merely instructs an agency within the executive branch to prosecute certain offenses already established by the legislature. This action is nothing more than a mandate that a designated group of people undeniably under the aegis of the executive branch will be in charge of enforcing existing law. As such, it cannot be said that at the time it was promulgated, it was an act of legislation.

¶ 24 Even the district court acknowledged that the 1987 Executive Order was appropriate, and thus an act of executive rather than legislative power, at the time it was promulgated. We are unaware of any doctrine, and Salgado has cited none, that would suggest that an executive act becomes an exercise of legislative power merely because the executive act remains operative for a lengthy period of time.

¶ 25 Finally, we note that the district court placed weight on the fact that, during the course of the intervening three decades, the legislature "could have specifically acted but chose not to." This observation is inaccurate and, in any event, does not support the district court's conclusions.

¶ 26 First, the MFCU was created even before the 1987 Executive Order. The General Assembly has never acted to revise section 24-31-101 to exclude Medicaid fraud and patient abuse cases from the Attorney General's purview. Nor has it attempted to curtail the Governor's authority to direct the Attorney General to prosecute such cases. Rather than undercutting the continuing viability of the 1987 Executive Order, this lengthy period of inaction supports it.

¶ 27 More importantly, the General Assembly has not been silent in this area. Instead, the legislature has specifically appropriated funds in the annual budget for the Attorney General's programs implementing the Medicaid Fraud Control Program in every year since the 1987 Executive Order was issued. See, e.g. , Ch. 1, sec. 2, 1987 Colo. Sess. Laws 54; Ch. 424, sec. 2, 2018 Colo. Sess. Laws 2836.

III. Conclusion

¶ 28 In sum, the statute includes no requirement that the Governor direct the Attorney General to prosecute cases only within specific, restricted bounds. Further, the General Assembly has tacitly permitted and affirmatively funded the continued operation of the MFCU for thirty years. Therefore, we conclude that the 1987 Executive Order directs, and therefore properly authorizes, the Attorney General in his or her own capacity to prosecute cases of Medicaid fraud and patient abuse in Colorado.

¶ 29 The judgment is reversed, and the case is remanded for the district court to reinstate the charge against Salgado.

Hawthorne and Miller , JJ., concur

      The MFCU had originally been created several years earlier by Governor Romer's predecessor, Governor Richard Lamm. Through a series of executive orders, the MFCU had been housed in different governmental and quasi-governmental agencies, ultimately landing in the Attorney General's Office pursuant to Colorado Executive Order D 0034 81, Transferring the Colorado Medicaid Fraud Control Unit to, and Establishing Said Unit in, the Colorado Department of Law (Oct. 23, 1981). The 1987 Executive Order differed from its immediate predecessor in that the Attorney General was no longer directed to act "in cooperation with the District Attorneys of Colorado."

      The Jefferson County District Attorney had previously declined to file charges because he felt there was insufficient evidence to prosecute Salgado.

      Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5 (3), and § 24-51-1105, C.R.S. 2018.


author: Opinion by JUDGE J. JONES

text:
    The PEOPLE of the State of Colorado, Petitioner-Appellee,
    IN the INTEREST OF D.M., Juvenile-Appellant.
    Court of Appeals No. 17CA0159
    Colorado Court of Appeals, Division V.
    Announced April 18, 2019 As Modified May 23, 2019
    Philip J. Weiser, Attorney General, Kevin E. McReynolds, Assistant Attorney General, Denver, Colorado, for Petitioner-Appellee
    The Law Office of Thomas W. Martin, LLC, Thomas W. Martin, Fort Collins, Colorado, for Juvenile-Appellant
   Opinion by JUDGE J. JONES

¶ 1 Section 18-1.3-603(1), C.R.S. 2018, says that every order of conviction for a criminal offense (with certain exceptions) must "include consideration of restitution." And, unless the sentencing court finds that no victim suffered a pecuniary loss, the court must order the defendant to pay restitution to the victim. Id.

¶ 2 Likewise, a juvenile whom the court has adjudicated delinquent must pay restitution for a victim's loss of personal property as required by section 18-1.3-603. § 19-2-918(1), C.R.S. 2018. But what if the victim's pecuniary loss is the value of marijuana stolen from the victim's marijuana store? Can a defendant be required to pay restitution for such loss?

¶ 3 D.M., a juvenile who stole marijuana from a marijuana store, says "no," contending that because the Federal Controlled Substances Act (CSA), 21 U.S.C. §§ 801 - 971 (2018), makes it a federal offense to distribute marijuana and provides that no one has a property interest in marijuana, Colorado's restitution statutes can't be applied to his conduct. In short, he contends that the CSA preempts the restitution statutes in these circumstances. But because we don't see any positive conflict between the CSA and the restitution statutes, we reject D.M.'s preemption argument and affirm the order of restitution.

I. Background

¶ 4 D.M. and two of his friends broke into a licensed marijuana dispensary in the middle of the night and stole marijuana plants and products worth $ 178,000. The People filed a petition for delinquency, charging D.M. with theft and second degree burglary, both class 3 felonies. D.M. agreed to plead guilty to burglary of a nondwelling, a class 4 felony, in exchange for dismissal of the original charges. The district court accepted the plea agreement, adjudicated D.M. delinquent, and sentenced him to nine months of probation.

¶ 5 The prosecution filed a motion for an order requiring D.M. to pay $ 178,000 in restitution for the value of the stolen marijuana. D.M. didn't dispute the amount of the loss but argued that the court couldn't order such restitution because the CSA preempts the restitution statutes. The district court rejected that argument and ordered D.M. to pay the store owner $ 178,000 in restitution.

II. The CSA Doesn't Preempt Colorado's Restitution Statutes

A. Standard of Review

¶ 6 We review de novo whether federal law preempts state law. People v. Crouse , 2017 CO 5, ¶ 9, 388 P.3d 39.

B. Applicable Law

¶ 7 The principle that federal law may preempt state law is anchored in the Supremacy Clause (Article VI, Clause 2) of the United States Constitution. Id. at ¶ 13 (citing Arizona v. United States , 567 U.S. 387, 399, 132 S.Ct. 2492, 183 L.Ed.2d 351 (2012) ). The Supreme Court has recognized three forms of federal preemption: (1) field preemption - meaning that Congress's intent to displace state law altogether can be inferred by its creation of a pervasive framework of regulation; (2) express preemption - meaning that Congress has enacted a statute expressly preempting state law; and (3) conflict preemption - meaning that complying with both federal and state law is physically impossible so that "the challenged state law 'stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.' " Arizona , 567 U.S. at 399, 132 S.Ct. 2492 (quoting Hines v. Davidowitz , 312 U.S. 52, 67, 61 S.Ct. 399, 85 L.Ed. 581 (1941) ); see Fuentes-Espinoza v. People , 2017 CO 98, ¶¶ 23-26, 408 P.3d 445. But the Court has also told us that "courts should assume that 'the historic police powers of the States' are not superseded 'unless that was the clear and manifest purpose of Congress.' " Arizona , 567 U.S. at 400, 132 S.Ct. 2492 (quoting Rice v. Santa Fe Elevator Corp. , 331 U.S. 218, 230, 67 S.Ct. 1146, 91 L.Ed. 1447 (1947) ); see Fuentes-Espinoza , ¶ 22.

¶ 8 Just as Congress may say that its law preempts state law, it may say that the federal law does not preempt state law, or that it does only if certain conditions are present. And Congress expressly placed such a limit on preemption in the text of the CSA.

¶ 9 As relevant to this case, the CSA prohibits the possession and distribution of marijuana for nearly all uses. See 21 U.S.C. § 802(6) (2018) (definition of a controlled substance); 21 U.S.C. § 841 (2018) (prohibiting manufacturing, distributing, dispensing, or possessing with intent to manufacture, distribute, or dispense); 21 U.S.C. § 844 (2018) (prohibiting possession). And, as D.M. points out, the CSA says "[n]o property right shall exist in ... [a]ll controlled substances which have been manufactured, distributed, dispensed, or acquired in violation of this subchapter." 21 U.S.C. § 881(a)(1) (2018).

¶ 10 Nonetheless, Congress expressly limited the preemptive effect of the CSA:

No provision of this subchapter shall be construed as indicating an intent on the part of the Congress to occupy the field in which that provision operates, including criminal penalties, to the exclusion of any State law on the same subject matter which would otherwise be within the authority of the State, unless there is a positive conflict between that provision of this subchapter and that State law so that the two cannot consistently stand together.

21 U.S.C. § 903 (2018) (emphasis added). So Congress has taken field preemption and express preemption off the table; the only question before us is whether the CSA and the restitution statutes positively conflict when the restitution sought is for the value of stolen marijuana.

C. Analysis

¶ 11 D.M. relies on People v. Crouse , in which the Colorado Supreme Court held that the return provision of article XVIII, section 14(2)(e) of the Colorado Constitution creates a positive conflict with the CSA by requiring law enforcement officers to return seized marijuana to a medical marijuana patient who has been acquitted of unlawful possession. Crouse , ¶ 14. The court reasoned that because "the CSA ... prohibits the distribution of marijuana without regard to whether state law permits it," requiring police officers to deliver - that is, to distribute - seized marijuana to marijuana patients effectively causes officers to violate federal law. Id. Put differently, there is a positive conflict "[b]ecause compliance with one law necessarily requires noncompliance with the other." Id.

¶ 12 But this case is a horse of a different color. The district court's order only requires D.M. to make the victim whole for value lost because of his conduct. It doesn't require him to violate any provision of the CSA: it doesn't require him to possess marijuana, see 21 U.S.C. § 844, and it doesn't require him to manufacture, distribute, dispense, or possess marijuana with the intent to manufacture, distribute, or dispense marijuana, see 21 U.S.C. § 841. And while the CSA contains other prohibitions, D.M. doesn't argue that the restitution order requires him to violate any of them.

¶ 13 We aren't persuaded by D.M.'s alternative argument that the order conflicts with the CSA because it effectively recognizes a property interest in marijuana. Though D.M. insists that, "[w]here federal statute provides that a property right cannot exist, a state cannot create a property right," he doesn't cite any authority for that proposition. And there is contrary authority. See, e.g. , Allen v. Cty. of Lake , No. 14-CV-03934-TEH, 2017 WL 363209, at *6 (N.D. Cal. Jan. 25, 2017) ("[W]hile the Fourteenth Amendment of the federal Constitution may not recognize a property interest in medical marijuana, this does not preclude California from recognizing the property right under its own constitution."); City of Garden Grove v. Superior Court , 157 Cal.App.4th 355, 68 Cal.Rptr.3d 656, 672-73 (2007) (appearing to recognize a property interest in marijuana lawfully possessed under California law).

¶ 14 In any event, recognizing a state property interest in marijuana under Colorado law doesn't positively conflict with the CSA. The CSA's positive conflict preemption requires a showing that the two laws "cannot consistently stand together." 21 U.S.C. § 903. 21 U.S.C. § 881 allows the federal government to obtain and retain controlled substances, and other things, by forfeiture. To that end, it makes clear that no one may avoid forfeiture by asserting a property interest in a controlled substance. Requiring D.M. to pay restitution doesn't hinder in any way the federal government's ability to proceed under the federal forfeiture statute, nor does it somehow provide the store owner a defense to any potential federal forfeiture action.

¶ 15 In sum, mindful that we shouldn't assume Congress intended to supersede the restitution statutes and seeing no positive conflict between the CSA and Colorado's restitution statutes as applied in this case, we hold that the CSA doesn't preempt those statutes.

III. Conclusion

¶ 16 We affirm the district court's order.

JUDGE TERRY and JUDGE GROVE concur.

      This provision deals with the federal government's right to obtain controlled substances and other things by forfeiture.