Summary
In Daughtry v. King Soopers, Inc., W.C. No. 3-837-001 (January 17, 1996), an ALJ denied reimbursement for mileage expenses which the claimant incurred to obtain medically prescribed drugs.
Summary of this case from In re Anderson, W.C. NoOpinion
W.C. No. 3-837-001
January 17, 1996
ORDER OF REMAND
The claimant seeks review of a final order of Administrative Law Judge Wheelock (ALJ) which denied his request for reimbursement of travel expenses incurred in purchasing prescription drugs. We set the order aside and remand for further proceedings.
The facts of this case are essentially undisputed. The claimant sustained a compensable injury to his back. As a result, his physician prescribed several prescription drugs.
In August 1994, the claimant submitted to the respondent a request for reimbursement of travel expenses incurred in purchasing the prescription drugs. The ALJ found that the claimant made twenty trips to King Soopers, totalling 332 miles, over a one year period. However, the ALJ denied the request for reimbursement holding that reimbursement for travel to fill prescriptions is not a medical benefit, nor is it reasonably incident to obtaining medical treatment. (ALJ's Order, p. 4).
In support of her conclusion, the ALJ distinguished Industrial Commission v. Pacific Employers Insurance Co., 120 Colo. 373, 209 P.2d 908 (1949), and Sigman Meat Co. v. Industrial Claim Appeals Office, 761 P.2d 265 (Colo.App. 1988), on the ground that, here, the claimant was not "compelled or required to travel to fill his prescriptions." (Order p. 7). To the contrary, the ALJ stated that the claimant could have requested that the prescription drugs be mailed or delivered.
Moreover, the ALJ stated that "travel to the pharmacy is incidental to obtaining the drugs and not incidental to obtaining medical treatment." The ALJ also concluded that there is no statute or rule requiring respondents to reimburse travel expenses incurred in purchasing drugs.
On review, the claimant contends that the ALJ erred in concluding that travel expenses incurred to purchase prescription drugs are not reimbursable as incident to obtaining necessary medical treatment. Relying principally on Sigman Meat Co. v. Industrial Claim Appeals Office, supra, the claimant argues that § 8-42-101(1)(a), C.R.S. (1995 Cum. Supp.) creates an implicit right of reimbursement for travel expenses where such expenses "enable" the claimant to obtain necessary drugs. Because we agree with the claimant that the ALJ's order adopts an unduly harsh interpretation of the law, we remand for entry of a new order.
Section 8-42-101(1)(a) provides as follows:
"Every employer, regardless of said employer's method of insurance, shall furnish such medical, surgical, dental, nursing, and hospital treatment, medical, hospital, and surgical supplies, crutches and apparatus as may reasonably be needed at the time of the injury or occupational disease and thereafter during the disability to cure and relieve the employee from the effects of the injury."
The ALJ's order notwithstanding, we have no difficulty in concluding that prescription drugs are a form of medical "supply" because they provide a "therapeutic benefit" designed to cure and/or relieve the effects of the injury. See Cheyenne County Nursing Home v. Industrial Claim Appeals Office, 892 P.2d 443 (Colo.App. 1995). Therefore, we find no statutory basis for the ALJ's apparent distinction between travel for the purpose of obtaining treatment by a physician and travel for the purpose of obtaining drugs (or other therapy) prescribed by a physician. Cf. Hutchinson v. Workers' Compensation Appeals Board, 209 Cal. App. 3d 372, 257 Cal. Rptr. 240 (1989).
Moreover, we disagree with the ALJ's conclusion that this record does not permit the conclusion that the claimant's travel to obtain the prescriptions was "incident" to obtaining necessary medical treatment. In Country Squire Kennels v. Tarshis, 899 P.2d 362 (Colo.App. 1995) the court stated that an expense is compensable as "incident to" obtaining medical treatment if it "enables" the claimant to receive the necessary treatment. Our courts have identified two types of expenses which are "incident to" medical treatment because they "enable" a claimant to receive treatment. In Industrial Commission v. Pacific Employers Insurance Co., supra, the court allowed compensation for room and board while the claimant was required to travel away from his home in order to receive hospital treatment. The room and board expenses were disallowed after the claimant relocated to a new home near the hospital. In Sigman Meat Co. v. Industrial Claim Appeals Office, the court held that the claimant was entitled to reimbursement "for transportation expenses incurred in obtaining medical treatment."
The ALJ's order suggests that both Pacific Employers and Sigman Meat require that a claimant be "compelled" to travel in order to obtain treatment before travel expenses may be reimbursed. By this, the ALJ apparently means that it is impossible to hypothesize any other means of delivering the medical treatment to the claimant.
However, we agree with the claimant that the ALJ's construction of these cases is too restrictive. It is true that, in Sigman Meat, the claimant was unable to drive long distances and usually took a taxi cab to see his physician. On other occasions the claimant drove short distances. However, nowhere in the Sigman Meat decision did the court hold that the claimant's right to reimbursement for the taxi cab or driving expenses was dependent upon the degree of the claimant's disability, or the court's inability to hypothesize any alternative means of delivering the treatment. To the contrary, we have held that Pacific Employers and Sigman Meat, suggest that compensable "incidental expenses" are those which would not have been incurred but for the industrial injury. See Kuziel v. Pet Fair, Inc., W.C. No. 4-139-839, November 8, 1995 (child care not compensable because care of children was necessary regardless of the injury).
Applying that concept here, it is apparent that, but for the industrial injury, it would not have been necessary for the claimant to obtain, or the respondent to deliver, prescription drugs to the claimant's home. Put another way, the necessary medications are not available in the claimant's home, and some expense must be incurred to transport them there.
Therefore, we agree with the claimant that, to some degree, his travel expenses are "incident" to obtaining the necessary prescription drugs.
The mere fact that the respondent and the ALJ can imagine means of delivering the drugs other than the claimant traveling to the store does not rule out the compensability of the travel expenses. Rather, in our view the availability of alternative delivery mechanisms relates to the reasonableness of the particular expenses in question. The reasonableness of the expenses is a question of fact for the ALJ, and is entirely separate from the determination of whether travel expenses are compensable in the first instance. See Edward Kraemer Sons, Inc. v. Downey, 852 P.2d 1286 (Colo.App. 1992) (reasonable value of home health services a question of fact for ALJ); Williams v. Industrial Commission, 723 P.2d 749 (Colo.App. 1986) (respondent always free to dispute reasonableness and necessity of particular treatments).
In summary, we conclude that the claimant's travel to obtain prescription drugs was "incident to" obtaining necessary medical treatment. To the extent the ALJ held to the contrary, she erred. However, the ALJ remains free to determine, as a matter fact, whether the particular travel expenses incurred by the claimant were reasonable, and to award such compensation, if any, that she determines is warranted.
Because we conclude that the claimant's right to compensation is implicit in § 8-42-101(1)(a), it is immaterial whether the Rules of Procedure address the reimbursement issue.
Therefore, we do not consider whether the Rules of Procedure authorize payment for travel expenses incurred to obtain prescription drugs.
IT IS THEREFORE ORDERED that the ALJ's order, dated February 2, 1995, is set aside, and the matter is remanded for entry of a new order consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEAL PANEL
___________________________________ David Cain
___________________________________ Kathy E. Dean
Copies of this decision were mailed January 17, 1996 to the following parties:
Richard A. Daughtry, 6675 8th Ave. North, St. Petersburg, FL 33710
King Soopers, Inc., Attn: Garrett Bartko, P. O. Box 5567, T. A., Denver, CO 80217
Steven U. Mullens, Esq., P. O. Box 2940, Colorado Springs, CO 80901-2940 (For Claimant)
Art M. Lee, Esq., 455 Sherman St., #210, Denver, CO 80203 (For Respondent)
By: _____________________