Opinion
W.C. No. 3-101-724
November 15, 1995
FINAL ORDER
The Subsequent Injury Fund (SIF) seeks review of a final order of Administrative Law Judge Martinez (ALJ), dated June 1, 1995, which ordered it to pay permanent total disability benefits for the claimant's lifetime. We affirm.
The ALJ's order was entered pursuant to our Order of Remand dated January 27, 1995. Our order set aside the ALJ's August 19, 1994 Supplemental Order, which denied a petition to reopen the claim based upon an alleged mistake of law in an order dated May 14, 1993. Our order contains a detailed statement of the facts, and that statement is incorporated in this order.
On remand, the ALJ determined that the of May 14, 1993 order was subject to reopening based upon mistake of law. Specifically, the order was mistaken because it awarded lifetime permanent total disability benefits in contravention of § 8-42-111(5), C.R.S. (1995 Cum. Supp.), which provides for the termination of permanent total disability benefits at age sixty-five. However, the ALJ observed that, after our Order of Remand, the Court of Appeals issued its opinion in Romero v. Industrial Claim Appeals Office, 902 P.2d 896 (Colo.App. 1995), cert. granted, 95SC227, August 28, 1995. In Romero, the Court of Appeals held that § 8-42-111(5) is violative of the constitutional right of equal protection of the laws. In view of these circumstances, the ALJ determined that his order of May 14, 1993 was in accordance with "applicable law," and stated that the claimant is entitled to permanent total disability benefits "continuing for the lifetime of the claimant AS PROVIDED BY APPLICABLE LAW."
On review, the SIF concedes that the Romero decision justifies the ALJ's award of lifetime permanent total disability benefits. However, the SIF asserts that the order fails to protect the rights of the SIF should the Romero decision be reversed by the Supreme Court.
Although it is not entirely clear to us, we understand the SIF's appeal as an effort to preserve the SIF's right to terminate the claimant's permanent total disability benefits in the event the Romero decision is overturned. As such, the SIF's argument is that Romero was wrongly decided. However, we are bound by the Romero decision unless and until it is overturned by the Supreme Court. C.A.R. 35(f). See Menaldino v. Mercy Hospital of Durango, W.C. No. 3-101-906, October 30, 1995. Therefore, we must affirm the ALJ's June 1 order.
The Colorado Compensation Insurance Authority (CCIA) (insurer for the employer) has filed a brief "in response" to the SIF's brief. The CCIA takes the position that Romero merely struck down § 8-42-111(5), but did not establish a "remedy" for the constitutional violation. Consequently, the CCIA argues that the age sixty-five limitation is still valid.
However, the CCIA did not file a petition to review the ALJ's order of June 1, 1995. Consequently, we lack jurisdiction to consider the CCIA's arguments. Digital Equipment Corp. v. Industrial Claim Appeals Office, 894 P.2d 54 (Colo.App. 1995). Moreover, even if we were to consider the CCIA's argument we would reject it for reasons previously stated. See Blehm v. Wacker, W.C. No. 4-137-334, October 30, 1995; Rose v. Colorado Springs Memorial Hospital, W.C. No. 4-198-521, October 20, 1995.
IT IS THEREFORE ORDERED that the ALJ's order, dated June 1, 1995, is affirmed.
INDUSTRIAL CLAIM APPEAL PANEL
___________________________________ David Cain
___________________________________ Kathy E. DeanNOTICE
This Order is final unless an action to modify or vacate the Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, Colorado 80203, by filing a petition to review with the court, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date the Order was mailed, pursuant to §§ 8-43-301(10) and 307, C.R.S. (1995 Cum. Supp.).
Copies of this decision were mailed November 15, 1995 to the following parties:
Margaret S. Martinez, P.O. Box 544, Pagosa Springs, CO 81147
Durango 4-C Council, Inc., P.O. Box 259, Durango, CO 81302-0259
Colorado Compensation Insurance Authority, Attn: C. Kriksciun, Esq. (Interagency Mail)
Special Funds Unit, Barbara Carter — (Interagency Mail)
Robert C. Dawes, Esq., 572 E. Third Ave., Durango, CO 81301
(For the Claimant)
Scot Houska, Esq., 744 Horizon Ct., Ste. 360, Grand Junction, CO 81506
(For CCIA respondents)
Roxane D. Baca, Esq., Asst. Attorney General, 5th Flr., 1525 Sherman St., Denver, CO 80203
(For SIF)
By: ___________________