Opinion
W.C. No. 4-601-867.
June 14, 2011.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Stuber (ALJ) dated January 5, 2011 that ordered that the respondents may recover an overpayment and that also denied medical benefits in the form of housekeeping. We affirm.
A hearing was held on the issues whether the respondents were entitled to recover an overpayment and whether the claimant was entitled to medical benefits in the form of housekeeping services. Following the hearing the ALJ entered findings of fact that for the purposes of this order may be summarized as follows. The claimant sustained a compensable injury on September 30, 2003 and on January 22, 2009 the insurer filed a final admission of liability admitting that the claimant was permanently and totally disabled. The claimant was subsequently awarded social security disability benefits (SSDI) and in a previous order ALJ Friend determined that the claimant was overpaid $14,678.23 due to her receipt of SSDI. The ALJ entered specific findings concerning the claimant's life expectancy, her week benefit amounts and her monthly expenses. He concluded from these findings that the respondents were entitled to recover the overpayment at the rate of $25 per week.
The ALJ also found that Dr. Hall had continued to treat the claimant following her placement at maximum medical improvement. On August 8, 2008 he reported that the claimant need post-maximum medical improvement care in the form of medication, physician visits, and Botox injections. On February 3, 2010 the claimant wrote Dr. Hall and stated that she was unable to perform activities such as vacuuming, mopping floors, cleaning the bathroom or cleaning the kitchen. In response to the claimant's letter, Dr. Hall issued a prescription for "essential services" two days per week and four hours per day for "heavier housework." On April 7, 2010 Dr. Hall wrote a letter stating that the housework services were reasonably necessary to relieve the effects of the claimant's compensable injury because the activities exacerbated those injuries. The ALJ entered findings concerning the report of Mary Moorhouse, a nurse retained by the claimant to report on the housekeeping services the claimant required and the nature of them. The ALJ also found that the respondents retained Dr. Polanco to perform an independent medical examination. He reported that the claimant's continued use of narcotics and Botox injection exceeded the medical treatment guidelines and that they recommended that patients remain physically active. Dr. Polanco recommended that the claimant could perform the activities of daily living, including housekeeping duties and he opined that the prescription for essential services was not reasonable or medically necessary.
Based upon his factual findings, the ALJ concluded that the claimant failed to carry her burden of showing that the housekeeping services were reasonable and necessary. Accordingly, he denied those benefits.
The claimant appealed and argues that the ALJ erred in denying the claim for housekeeping services and also that the ALJ abused his discretion in fixing the rate of recovery of the overpayment at $25 per week. We have reviewed the record and considered the claimant's arguments and we are unpersuaded that the ALJ erred or abused his discretion.
I.
The claimant first argues that the ALJ applied an incorrect legal standard in denying the housekeeping services and that the factual record compelled the ALJ to award the disputed medical benefits. As noted, we are unpersuaded.
Section 8-42-101(1)(a), C.R.S. provides that respondents are liable for authorized medical treatment that is reasonable and necessary to cure or relieve the effects of the industrial injury. Snyder v. Industrial Claim Appeals Office, 942 P.2d 1337 (Colo. App. 1997). Home health care services fall within this provision. See Suetrack USA v. Industrial Claim Appeals Office, 902 P.2d 854, 856 (Colo. App. 1995). The determination whether treatment or services provided under § 8-42-101 are reasonable and necessary is one of fact for resolution by the ALJ. See City of Durango v. Dunagan 939 P.2d 496 (Colo. App. 1997); Wal-Mart Stores, Inc. v. Industrial Claims Office, 989 P.2d 251 (Colo. App. 1999).
We must uphold the ALJ's factual determinations if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 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. Metro Moving Storage Co. v. Gussert, 914 P.2d 411, 415 (Colo. App. 1995).
In our view the record contains substantial evidence supporting the ALJ's conclusion that the requested housekeeping services were not reasonable and necessary to cure or relieve the effects of the industrial injury. Contrary to the claimant's arguments, Dr. Polanco's opinions constitute substantial evidence supporting the ALJ's factual findings. As the ALJ noted in crediting Dr. Polanco's opinions, he stated that the claimant's condition would not likely deteriorate in the event she performed those tasks described by Dr. Hall and for which he recommended assistance. He also opined that there was "no medical contraindication" to the claimant performing those housekeeping tasks. As noted, the doctor's opinions, which were expressly credited by the ALJ, constitute substantial evidence supporting his factual findings.
Those factual findings also support the ALJ's conclusion denying the requested services as medical benefits. Home health care services in the nature of "attendant care," if reasonably needed to cure or relieve the effects of the industrial injury, have been found to be compensable. Atencio v. Quality Care, Inc., 791 P.2d 7 (Colo. App. 1990). Such services may encompass assisting the claimant with activities of daily living, including matters of personal hygiene. Suetrack v. Industrial Claim Appeals Office, 902 P.2d 854 (Colo. App. 1995). However, in Kuziel v. Pet Fair, Inc. 931 P.2d 521 (Colo. App. 1996) the court cited Industrial Commission v. Pacific Employers Insurance Co., 120 Colo. 373, 209 P.2d 908 (1949) and refused to extend benefits to cover the payment of expenses incurred for household care or maintenance, child, spousal, or pet care, or other routine living expenses that are paid or incurred during a claimant's hospitalization or other medical treatment.
Here, the ALJ discussed the legal standards relevant to this issue. The ALJ recognized that the court of appeals set forth a rather broad standard in Bellone v. Industrial Claim Appeals Office 940 P.2d 1116 (Colo. App. 1997), in which the court held that child care services were "medical" in nature because they relieved the symptoms and effects of the injury and were directly associated with the claimant's physical needs. The ALJ also recognized, however, that the court in Country Squire Kennels v. Tarshis 899 P.2d 362 (Colo. App. 1995) applied a relatively narrower standard for the provision of housekeeping services. In Tarshis the court held that a claimant who suffered an admitted work-related injury may not receive compensation for medically prescribed housecleaning services if those services are not "incidental to" the expense of providing reasonably necessary medical, nursing, or attendant care treatment services. The Tarshis court summarized the existing case law as determining that for expenses incurred for housekeeping services to be compensable, such services must enable the claimant to obtain medical care or treatment or, alternatively, must be relatively minor in comparison to the medical care and treatment.
However, the somewhat differing legal standards aside, as we understand the ALJ's order, he credited Dr. Polanco's opinion that the requested housekeeping services were not reasonable and necessary to cure and relieve the claimant from the effects of her compensable injury. The basis for this opinion was that the claimant was capable of performing those tasks herself "with no medical contraindication." In our view, this is the correct legal standard to apply. Moreover, in light of the Dr. Polanco's opinions, the ALJ's determination is supported by substantial evidence in the record and therefore binding. § 8-43-301(8), C.R.S.; Kroupa v. Industrial Claim Appeals Office, 53 P.3d 1192 (Colo. App. 2002). Even under the less restrictive standards articulated in Bellone, the ALJ's order is supported by substantial evidence and consistent with the legal standard. Accordingly, we must affirm the order.
II.
The claimant also argues that the ALJ abused his discretion in ordering the claimant to repay the overpayment at the rate of $25 per week. We are not persuaded.
We do not understand the claimant to have argued to the ALJ or here on appeal that the respondents are not entitled to recover the overpayment occasioned by her receipt of SSDI. Rather, her sole argument is that, given the claimant's limited financial resources, the rate at which the ALJ permitted the respondents to recover the overpayment will have a crippling effect on her ability to subsist.
However, the ALJ's decision regarding the rate of recovery of an overpayment is a discretionary one. The legal standard on review of an alleged abuse of discretion is whether, under the totality of the factual circumstances at the time of the ALJ's determination, the ALJ's order "exceeds the bounds of reason." Rosenberg v. Board of Education of School District #1, 710 P.2d 1095 (Colo. 1985). Where the ALJ' s order is supported by the record and the applicable law, there is no abuse of discretion. Coates, Reid Waldron v. Vigil, 856 P.2d 850 (Colo. 1993); Louisiana Pacific Corporation v. Smith, 881 P.2d 456 (Colo. App. 1994) (ALJ order for recovery of $17,000 overpayment at a rate of $16.66 per week, not abuse of discretion where no recovery rate is mandated by statute, and the order is supported by substantial evidence and plausible inferences drawn from conflicts in the record).
Here, the ALJ considered the claimant's circumstances and weighed the relevant factors against the respondents' statutory right to recover the overpayment. The ALJ's order reflects an express consideration of the relevant factors. We perceive no abuse of discretion in the ALJ's decision and therefore affirm the order in this respect. IT IS THEREFORE ORDERED that the ALJ's order dated January 5, 2011, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
_______________________ John D. Baird
_______________________ Curt Kriksciun
SUSAN SCHRAMEK, 3750 N CASCADE AVE #F-86, COLORADO SPRINGS, CO, (Claimant).
HARTFORD INSURANCE COMPANY, Attn: KELLY SUBIONO, C/O: SPECIALTY RISK SERVICES, LEXINGTON, KY, (Insurer).
STEVEN U MULLENS, PC, Attn: STEVEN U MULLENS, ESQ., COLORADO SPRINGS, CO, (For Claimant).
BLACKMAN LEVINE, LLC, Attn: TAMA L LEVINE, ESQ., DENVER, CO, (For Respondents).