Opinion
W.C. No. 4-156-147
March 7, 1996
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Friend (ALJ), which awarded medical benefits. We affirm.
The essential facts are undisputed. The claimant sustained an admitted knee injury on December 3, 1992, arising out of her employment for the respondent-employer in Vail, Colorado. At the time of the injury, the employer provided the claimant with lodging in Vail. (Tr. p. 9). That lodging was no longer available in late 1993, at which time the claimant relocated to New Jersey to reside with her mother. (Tr. p. 13).
As a result of the injury, the claimant has undergone five knee surgeries by Dr. Richard Steadman in Vail, Colorado. Dr. Steadman is the claimant's authorized treating physician, and neither party has sought or obtained a change of provider.
On April 19, 1994, the claimant incurred air fare, lodging and other transportation expenses totalling $1,347 for a follow up appointment with Dr. Steadman. On June 9, 1994, the claimant drove from New Jersey to Vail for further treatment by Dr. Steadman. The claimant's travel expenses totalled $511.50. The respondents did not voluntarily reimburse the claimant for these travel expenses.
By correspondence dated May 17, 1994, the respondents' notified the claimant that the respondents would pay for the claimant's further medical treatment "per the Colorado fee schedule but cannot pay for airfare to travel back and forth to Colorado." The correspondence also notified the claimant that "additional expenses incurred are your responsibility." (Tr. p. 30, lines 5-13).
Commencing June 15, 1994, the claimant rented an apartment in Vail to be closer to Dr. Steadman for treatment. The rent was $600 per month and was scheduled to be increased to $900 per month effective November 15, 1994.
In September 1994, the claimant underwent the fifth surgery by Dr. Steadman. The claimant testified that she has had a weekly appointment with Dr. Steadman since the surgery and has been attending physical therapy in Vail.
The ALJ determined that Dr. Steadman's treatment is reasonable and necessary to cure and relieve the effects of the claimant's industrial injury. The ALJ also found that the claimant's transportation expenses from New Jersey to Vail were "incidental" to the medical treatment provided by Dr. Steadman. Therefore, the ALJ ordered the respondent to pay the travel expenses incurred by the claimant in April and June of 1994.
The ALJ further determined that the claimant's Vail "rent" is not incidental to medical treatment. However, the ALJ noted that if the claimant had not obtained a residence in Vail, the respondents would be liable for the claimant's airfare and travel expenses in the amount of $1,000 for every time the claimant went to Vail for a medical examination, and that the claimant saw Dr. Steadman more than three times per month. (Tr. pp. 37-38). Consequently, the ALJ concluded that the rent was cheaper than the travel expenses the claimant would have incurred incidental to obtaining authorized treatment in Vail. Therefore, the ALJ ordered the respondents to reimburse the claimant for rent paid in Vail between June and November 1994. The ALJ further ordered that, for so long as the claimant is undergoing authorized medical care in Colorado which is reasonable and necessary to cure or relieve the effects of the industrial injury, the respondents must either pay the claimant's rent of $900 per month, provide other reasonable living accommodations for the claimant in Colorado with transportation to Dr. Steadman's office, or pay travel expenses from New Jersey to Colorado for each appointment by the claimant.
On appeal, the respondents do not contest the ALJ's finding that Dr. Steadman's treatment is reasonable and necessary, or their liability for the claimant's travel expenses. However, the respondents contend that the ALJ's order which requires them to pay "rent" is contrary to the evidence and applicable law. Based upon the facts of this claim, we disagree.
The respondents are liable for medical benefits that are either medical in nature or "incidental" to obtaining necessary medical treatment. Section 8-42-101(1)(a), C.R.S. (1995 Cum. Supp.); Country Squire Kennels v. Industrial Claim Appeals Office, 899 P.2d 362 (Colo.App. 1995). An expense is incidental to medical treatment if the expense "enables" the claimant to obtain treatment or is a "minor concomitant" of medical treatment. Country Squire Kennels v. Industrial Claim Appeals Office, supra. "Incidental" expenses include travel expenses, and room and board where the claimant is required to be away from home for treatment, and thus, is required to maintain two residences. Industrial Commission v. Pacific Employers Insurance Co., 120 Colo. 273 [ 120 Colo. 373], 209 P.2d 908 (1949); Sigman Meat Co. v. Industrial Claim Appeals Office, 761 P.2d 265 (Colo.App. 1988).
Here, the respondents argue and the ALJ found that the claimant was not required to maintain two residences, and that the claimant's rent was not compensable "room and board" under Pacific Employers. Therefore, we need not address the respondents' further arguments concerning compensable "room and board."
However, as we read the ALJ's order, he determined that the claimant's Vail rent was a substitute for compensable travel expenses the claimant would have incurred if she remained in New Jersey. (Tr. p. 38); CAN-USA Construction, Inc. v. Gerber, 767 P.2d 765 (Colo.App. 1988) rev'd on other grounds at 783 P.2d 269 (1989) (the ALJ's oral findings may be considered to interpret the ALJ's written findings). Based upon the ALJ's determination that the disputed expenses represent the equivalent of travel expenses, the facts presented here are distinguishable from the facts in Pacific Employers. Accordingly, we agree with the ALJ that Pacific Employers does not preclude an order for the payment of expenses incurred in the form of "rent."
Moreover, the ALJ has determined that the claimant's move to Colorado reduced the respondents' liability for compensable travel expenses. (Tr. p. 38, lines 17-25). Under the totality of circumstances presented here, we agree with the ALJ's implicit determination that it would be inequitable to allow the respondents to avoid liability for the claimant's Vail rent which substantially reduced the respondents' liability for compensable travel expenses. (Tr. pp. 37, 38); cf. Martin K. Eby Construction Co. v. Industrial Commission, 710 P.2d 1164 (Colo.App. 1985); Johnson v. Industrial Commission, 761 P.2d 1140, 1146 (Colo. 1988). Therefore, we decline to disturb the ALJ's order requiring the respondents to reimburse the claimant in the amount of $600 per month from June 15 to November 15, 1994. See § 8-43-310, C.R.S. (1995 Cum. Supp.); cf. A R Concrete Construction v. Lightner, 759 P.2d 831 (Colo.App. 1988) (error which is not prejudicial will be disregarded).
We also note that the ALJ's order does not require the respondents to pay rent of $900 per month after November 15, 1994. To the contrary, the respondents are free to pay transportation expenses for the claimant to travel from New Jersey to Colorado for the claimant to attend the medical appointments in Vail.
IT IS THEREFORE ORDERED that the ALJ's order dated November 9, 1994, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
_____ Kathy E. Dean _____ Dona Halsey NOTICEThis 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. (1995 Cum. Supp.).
Copies of this decision were mailed March 7, 1996 to the following parties:
Joanne Arczynski, Bldg 1, Apt. #103, P.O. Box 5000, Edwards, CO 81632
Club Mediterranee of Colorado, 50 Beeler Pl., P.O. Box 3337, Copper Mountain, CO 80443-9999
Colorado Compensation Insurance Authority, Attn: C. Boyd, Esq. (Interagency Mail)
Vincent M. Balkenbush, Esq., 3773 Cherry Creek North Drive, Ste. 280, Denver, CO 80209
(For the Claimant)
Bruce McCrea, Esq., 1873 S. Bellaire St., #1400, Denver, CO 80222
(For the Respondents)
BY: _____