Opinion
W.C. No. 3-984-875
November 12, 2003
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Jones (ALJ) which denied medical benefits in the form of durable medical equipment and housekeeping services. We affirm.
In 1990 the claimant suffered an admitted back injury, which aggravated the claimant's pre-existing ankylosing spondylitis and caused the claimant to develop fibromyalgia. The claimant also has a history of restrictive lung disease, headaches, type II diabetes, Afib and hypertension. In 1995 the claimant was awarded permanent total disability benefits and ongoing medical benefits.
In June 1996, the claimant requested the respondents reimburse her for a motorized scooter, scooter lift, scooter ramp/porch and stair glide that were prescribed in 1995 by the treating physician. The respondents refused the reimbursement requests.
The claimant subsequently moved to an apartment where she resides with her two 29 year old daughters. No ramp or stair glide is required at her current residence.
The claimant was involved in a motor vehicle accident in December 2000 which caused a cervical and lumbar strain. Thereafter, the claimant reported increased difficulty walking. The claimant was involved in another motor vehicle accident in August 2001, where she suffered a head injury.
In 2000 the claimant was diagnosed with sleep apnea and purchased a BIPAP machine to assist with oxygen intake at night. In May 2001, Dr. Westerman wrote prescriptions for a motorized scooter and a wheelchair lift for claimant's van. Dr. Carlson recommended the claimant receive assistance with household tasks, including laundry and grocery shopping.
On conflicting evidence, the ALJ found that the claimant failed to sustain her burden to prove that the cost of the van with a scooter lift and the ramps installed at her previous residence were reasonable and necessary and that she was not already reimbursed for the cost of the ramps in the sales price of the house. (Finding of Fact 21; Conclusions of Law 9). The ALJ also found that the motorized scooter, ramps, van, van lift and stair glide were apparatuses that would make it easier for the claimant to get around and maximize her independence. (Finding of Fact 4). However, the ALJ found the claimant failed to prove these apparatuses relieved the effects of the injury. Further, the ALJ found that the respondents have always paid for the claimant's transportation to medical appointments and there are adequate alternatives available for the claimant to get to her medical appointments.
With regard to the sleep apnea testing and equipment, the ALJ was not persuaded the claimant established a causal relationship between the sleep apnea and the industrial injury. The ALJ also found the claimant failed to prove that the requested housekeeping services were medically necessary or incidental to medical treatment. Therefore, the ALJ denied the disputed medical benefits.
On review, the claimant relies on the opinions of Dr. Westerman to argue the ALJ erroneously denied the requested medical benefits. We perceive no basis to disturb the ALJ's order.
Section 8-42-101(1)(a), C.R.S. 2003, requires respondents to provide medical services "as may reasonably be needed" to "cure and relieve" the effects of the industrial injury. See Colorado Compensation Insurance Authority v. Nofio, 886 P.2d 714 (Colo. 1994). Based upon this statute employers have been required to provide services which are either medically necessary for the treatment of a claimant's injuries or incidental to obtaining medical treatment. Industrial Commission v. Pacific Employers, 120 Colo. 373, 209 P.2d 980 (1949); Sigman Meat Co. v. Industrial Claim Appeals Office, 761 P.2d 265 (Colo.App. 1988).
Housekeeping services are not a compensable medical benefit unless the services are "incidental" to the expense of providing reasonable and necessary medical, nursing or attendant care. Country Squire Kennels v. Industrial Claim Appeals Office, 899 P.2d 362 (Colo.App. 1995). In Country Squire Kennels the court concluded that the term "incidental to" requires proof that housekeeping services "enable the claimant to obtain medical care or treatment" or, are a "minor concomitant" to providing medically necessary treatment.
In contrast, equipment is a medical necessity if it provides "therapeutic relief" from the effects of the injury. Cheyenne County Nursing Home, v. Industrial Claim Appeals Office, 892 P.2d 443 (Colo.App. 1995). The Cheyenne court defined the term "relief from the effects of the injury" and "therapeutic benefit" narrowly. Under the facts of that case the court denied the request of a wheelchair restricted quadriplegic for a stair glide to obtain access to her basement during dangerous tornado weather. The court concluded that the stair glide provided no therapeutic benefit and that benefits designed to increase the claimant's peace of mind were beyond the scope of the Workers' Compensation Act.
The determination of whether a particular apparatus is incidental to medically necessary treatment or provides a therapeutic benefit to the claimant is a question of fact for resolution by the ALJ. Hillen v. Tool King, supra; Edward Kraemer Sons, Inc. v. Downey, 852 P.2d 1286 (Colo.App. 1992). We must uphold the ALJ's factual determinations which are supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2003.
Substantial evidence is that quantum of probative evidence which a rational fact-finder would accept as adequate to support a conclusion, without regard to the existence of conflicting evidence. Durocher v. Industrial Claim Appeals Office, 905 P.2d 4 (Colo.App. 1995). In applying the substantial evidence test, we may not substitute our judgment for that of the ALJ concerning the credibility of the witnesses or the sufficiency and probative weight of the evidence. Delta Drywall v. Industrial Claim Appeals Office, 868 P.2d 1155 (Colo.App. 1993); Martinez v. Regional Transportation District, 832 P.2d 1060 (Colo.App. 1992).
The claimant's arguments notwithstanding, the ALJ's findings are supported by substantial, albeit conflicting, evidence in the record. Consequently, we are bound by the ALJ's factual determinations that the claimant failed to sustain her burden to prove entitlement to the durable medical equipment and housekeeping services. Furthermore, the ALJ's findings support the denial of benefits. See Cheyenne County Nursing Home, v. Industrial Claim Appeals Office, supra. Consequently, we need not address the evidence the claimant relies upon to the contrary.
The claimant also contends the ALJ erroneously relied on Bogue v. SDI Corporation, Inc., 931 P.2d 477 (Colo.App. 1996) in denying the request for a van with a wheelchair lift. In support the claimant argues that unlike the circumstances presented here, the claimant in Bogue had adequate and reliable transportation alternatives to get to and from medical appointments and the claimant's request for a wheelchair accessible van was primarily designed to increase the claimant's independence. We are not persuaded.
In Bogue, the court relied on Cheyenne County Nursing Home in denying a wheelchair-accessible van to a quadriplegic claimant because the van did not provide therapeutic medical relief from the symptoms of the industrial injury. The Bogue court concluded that avoiding risks associated with the claimant's exposure to inclement weather while waiting for public transportation does not render the specialized van sufficiently related to the claimant's physical condition to render it a compensable medical apparatus. Under the facts of that claim, the court also rejected an argument that the van was "incidental" to the claimant's access to medical care.
The claimant essentially requests that we reweigh the evidence on review and find that she did not have adequate and reliable transportation alternatives to her medical appointments. However, we have no authority to substitute our judgment for that of the ALJ concerning the sufficiency and probative weight of the evidence and, therefore, decline the claimant's invitation to do so. City of Durango v. Dunagan, 939 P.2d 496 (Colo.App. 1997).
The claimant's further arguments have been considered and are not persuasive. Furthermore, the record supports the ALJ's finding that the claimant failed to submit the reimbursement requests within 120 days of the date of service as required by the Rules of Procedure, Part XVI(K)(1)(a), 7 Code Colo. Reg. 1101-3 at 81 (2001), and did not demonstrate extenuating circumstances for her failure to do so. Therefore, the ALJ did not err in finding the respondents were entitled to deny payment on this basis.
IT IS THEREFORE ORDERED that the ALJ's order dated November 25, 2002, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Kathy E. DeanNOTICE
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 November 12, 2003 to the following parties:
Gean Bowden, 9300 E. Center Ave., Apt. D9, Denver, CO 80247
St. Luke's Hospital, 1719 E. 19th Ave., Denver, CO 80218
National Union Fire Insurance, c/o Laurie Iverson, Specialty Risk Service, P. O. Box 981270, Park City, UT 84098
Steven H. Gurwin, Esq., 3515 S. Tamarac Dr., #200, Denver, CO 80237 (For Claimant)
Bruce B. McCrea, Esq., 1777 S. Harrison St., #1110, Denver, CO 80210 (For Respondents)
BY: A. Hurtado