W.C. No. 4-137-334Industrial Claim Appeals Office.
October 30, 1995
FINAL ORDER
The respondents seek review of a final order of Administrative Law Judge Gandy (ALJ) ordering them to pay permanent total disability benefits for the remainder of the claimant’s “natural life.” We affirm.
The parties stipulated that the claimant is permanently and totally disabled. Based on Romero v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. No. 93CE0018, February 23, 1995), cert. granted, 95SC227, August 28, 1995, the claimant requested the ALJ to order the respondents to continue paying permanent total disability benefits after the age of sixty-five. The ALJ, relying on the Romero decision, granted the claimant’s request.
On review, the respondents contend that the ALJ erred in ordering them to pay permanent total disability benefits past the claimant’s sixty-fifth birthday. The respondents recognize that the Romero court held that the statutory amendment currently codified at § 8-42-111(5), C.R.S. (1995 Cum. Supp.) violates equal protection because it discriminates between sixty-five year old claimants receiving permanent partial disability benefits, and sixty-five year old claimants entitled to permanent total disability benefits. However, the respondents assert that the Romero
decision established no “remedy” for the constitutional violation, and that the ALJ had no jurisdiction to create a remedy by treating the statute as void. The respondents also assert that, if the ALJ does have power to fashion a remedy, he applied an incorrect one. We disagree with the respondents.
In Rose v. Colorado Springs Memorial Hospital, W.C. No. 4-198-521, October 20, 1995, we rejected arguments identical to those made by the respondents in this case. Specifically, we determined that Romero
implicitly creates a remedy for the constitutional violation, and that the remedy is non-enforcement of § 8-42-111(5). In support of this conclusion, we noted that, in the unrelated case of Romero v. Industrial Claim Appeals Office, (Colo.App. No. 94CE0038, March 2, 1995) (not selected for publication), the Court of Appeals applied the published Romero decision and ordered reinstatement of a claimant’s claim for permanent total disability benefits.
Moreover, in the published Romero decision, the Court of Appeals remanded the matter for further proceedings “consistent with the views contained in [the] opinion.” Presumably, if the court had intended for us to apply any of the elaborate remedies which the respondents suggest, it would have said so. This is true because the remedies suggested by the respondents would require the invalidation of express provisions of the Workers’ Compensation Act, and therefore, require the very act which respondents claim that the ALJ lacks jurisdiction to perform. In fact, as we stated in Rose, nothing in the Romero decision indicates that the Court of Appeals gave any thought to the remedies suggested by the respondents.
IT IS THEREFORE ORDERED that the ALJ’s order, dated June 13, 1995, is affirmed.
INDUSTRIAL CLAIM APPEAL PANEL
___________________________________ David Cain
___________________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacate the Order iscommenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver,Colorado 80203, by filing a petition to review with the court, withservice of a copy of the petition upon the Industrial Claim Appeals Officeand all other parties, within twenty (20) days after the date the Orderwas mailed, pursuant to §§ 8-43-301(10) and 307, C.R.S. (1995 Cum.Supp.).
Copies of this decision were mailed October 30, 1995 to the following parties:
Otto Blehm, 2626 W. 1st St., #193, Greeley, CO 80631
Harold Wacker, 27125 Weld County Rd. 58, Greeley, CO 80631
Colorado Compensation Insurance Authority, Attn: Michael J. Steiner, Esq. (Interagency Mail)
Steven R. Bristol, Esq., 1122 Ninth St., Ste. 202, Greeley, CO 80631 (For the Claimant)
By: ______________________