W.C. No. 4-383-586Industrial Claim Appeals Office.
January 3, 2003
FINAL ORDER
The claimant seeks review of a Corrected Order of Administrative Law Judge Henk (ALJ) insofar as the ALJ allowed an offset against permanent total disability benefits by the claimant’s receipt of Social Security Disability Insurance (SSDI) benefits. We affirm.
The ALJ ordered the respondents to pay permanent total disability benefits based upon an average weekly wage of $1057.69, capped pursuant to § 8-42-105(1), C.R.S. 2002, at ninety-one percent of the state average weekly wage However, the ALJ allowed the respondents to offset their liability for “capped” permanent total disability benefits by SSDI benefits in the amount of $1308.65 per month in accordance with §8-42-103(1)(c)(I), C.R.S. 2002. The claimant timely appealed.
The claimant’s petition to review alleged § 8-42-103(1)(c)(I) is a facially unconstitutional violation of the United States and Colorado constitutions because it denies higher wage earners the benefit of their higher average weekly wage by allowing permanent total disability benefits to be offset by SSDI benefits, after the permanent total disability benefits have been capped under § 8-42-105. The claimant contends the offset statute should be applied to the “uncapped” benefit rate. The claimant also contends the offset statute violates equal protection guarantees, and the takings clause of the United States Constitution. Further, the claimant contends the SSDI offset statute deprives claimants of property without due process and impairs obligations of contract.
The claimant has not filed a brief in support of the Petition to Review. Consequently, the effectiveness of our review is limited. Ortiz v. Industrial Commission, 734 P.2d 642 (Colo.App. 1986).
It is well established that we lack jurisdiction to assess the constitutionality of the Workers’ Compensation Act. See Celebrity Custom Builders v. Industrial Claim Appeals Office, 916 P.2d 539 (Colo.App. 1995). We are aware that the claimant asserts both facial and “as applied” challenges to the offset statute and the Supreme Court has indicated that administrative agencies have the authority to determine whether “an otherwise constitutional statute has been unconstitutionally applied.” Horrell v. Department of Administration, 861 P.2d 1194, 1198
(Colo. 1993). However, the argument supporting the claimant’s “facial” and “as applied” challenges are so intertwined that we do not perceive how we can consider the “as applied” challenges without addressing the “facial” constitutionality of the statutes. To do so would violate the principle of separation of powers, and cause us to engage in constitutional decision-making beyond our area of expertise. See Denver Center for Performing Arts v. Briggs, 696 P.2d 299, 305 (Colo.App. 1985) (administrative rulings concerning “facial” challenges to statutes will not be considered “authoritative” on judicial review). Therefore, we decline to address the claimant’s “as applied” arguments.
The claimant also baldly contends the offset statute violates the Americans With Disabilities Act of 1990. Assuming, arguendo, the claimant is correct, we have no authority to determine which act is controlling. Under these circumstances, the claimant has failed to establish grounds which afford us a basis to disturb the ALJ’s order.
IT IS THEREFORE ORDERED that the ALJ’s order June 20, 2002, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
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David Cain
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Kathy E. Dean
NOTICE
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, within twenty (20) days after the date this Order is mailed, pursuant to §8-43-301(10) and § 8-43-307, C.R.S. 2002. The appealing party must serve a copy of the petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed __________January 3, 2003 _____________________to the following parties:
Jerry Earnest, 6890 Navajo St., Denver, CO 80221
Allied Automotive Group, P.O. Box 1025, Decator, GA 30031
Commercial Carrier, via GAB Robbins North America, Inc., TPA, P.O. Box 370750, Denver, CO 80237-0750
Chris L. Ingold, Esq., 501 S. Cherry St., #500, Denver, CO 80246 (For Claimant)
Floyd M. Youngblood, Esq., 4465 Kipling St., #102, Wheat Ridge, CO 80033 (For Respondents)
BY: __________A. Hurtado__________