Opinion
W.C. No. 4-198-521
October 20, 1995
FINAL ORDER
The respondents seek review of that a final order of Administrative Law Judge Wheelock (ALJ) insofar as it awarded permanent total disability benefits. The respondents contend that the ALJ's order erroneously failed to terminate the benefits as of the date the claimant reaches age sixty-five years as provided by § 8-42-111(5), C.R.S. (1991 Cum. Supp.). We reject this argument, and therefore, affirm the order.
In Romero v. Industrial Claim Appeals Office, 902 P.2d 896 (Colo.App. 1995; cert. granted August 28, 1995), the Court of Appeals held that former § 8-42-111(5) violated the constitutional requirement of equal protection of the law. Therefore, the Court of Appeals set aside our order which denied permanent total disability benefits to a claimant who reached age sixty-five.
The respondents contend that Romero v. Industrial Claim Appeals Office, supra, was wrongly decided. However, the respondents recognize that we lack jurisdiction to resolve their argument concerning the constitutionality of § 8-42-111(5). Kinterknecht v. Industrial Commission, 175 Colo. 60, 485 P.2d 721 (1971). The respondents seek to preserve their argument pending certiorari review by the Supreme Court.
The respondents also argue that insofar Romero is correct, the Court of Appeals did not provide a specific remedy for the equal protection violation, and the ALJ exceeded his authority by awarding permanent total disability benefits beyond age sixty-five. Furthermore, the respondents suggest that to comply with the legislative intent of Senate Bill 91-218, the proper remedy is to extend the age sixty-five limit to claimants who are permanently partially disabled as a result of injuries incurred between July 1, 1991 and June 30, 1994. Alternatively, the respondents argue that the cost of living provisions in § 8-42-111(4) should also be set aside.
Contrary to the respondents' argument, Romero implicitly precluded the ALJ from applying § 8-42-111(5) to terminate the claimant's permanent total disability benefits at age sixty-five. See Romero v. Industrial Claim Appeals Office (Colo.App. No. 94CE0038, March 2, 1995) (not selected for publication) (requiring reinstatement of ALJ's order for the payment of permanent total disability benefits to claimant who was over age sixty-five at maximum medical improvement, pursuant to the February 1995 Romero opinion). Furthermore, we and the ALJ are bound by published opinions of the Court of Appeals. C.A.R. 35(f). Therefore, we are not persuaded that the ALJ fashioned his own remedy in failing to impose the limitation set forth in § 8-42-111(5). Rather, the ALJ merely followed the Court of Appeals' inherent directions in failing to terminate the claimant's benefits at age 65.
Moreover, there is nothing in the February 1995 Romero opinion which indicates that the Court of Appeals even considered setting aside the cost of living provisions in § 8-42-111(5) or extending the age sixty-five limit to permanent partial disability benefits. Therefore, in the absence of any evidence that the court intended this relief, we decline to infer that such relief is mandated by the applicable law. Consequently, the ALJ did not err in failing to impose the remedies sought by the respondents.
IT IS THEREFORE ORDERED that the ALJ's order dated July 31, 1995, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Bill WhitacreNOTICE
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, 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 this Order is mailed, pursuant to section 8-43-301(10) and 307, C.R.S. (1994 Cum. Supp.).
Copies of this decision were mailed October 20, 1995 to the following parties:
Melba Rose, 7275 McShane Road, Colorado Springs, CO 80908
Colorado Springs Memorial Hospital, 1400 E. Boulder St., Colorado Springs, CO 80909-5533
Colorado Compensation Insurance Authority, Attn: D. Thomas, Esq., M. Steiner, Esq. (Interagency Mail)
James May, Esq., 90 South Cascade Ave., Ste. 300, Colorado Springs, CO 80901-2940
BY: _______________________