Opinion
W.C. No. 4-327-591.
March 18, 2005.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Harr (ALJ) which denied her request for various items and home modifications. Essentially, the claimant argues that the evidence does no support the ALJ's determinations that these items are not reasonable and necessary to treat the claimant's condition, and that several of the items are not "medical" in nature. We affirm.
The claimant has complex regional pain syndrome (CRPS), a condition involving sensitivity to touch and severe pain. The claimant also suffers from dystonia, a condition involving improper muscle contraction resulting in abnormal posture. The CRPS affects both of the claimant's upper extremities and right lower extremity. The dystonia affects the right shoulder and right foot and ankle.
To treat these conditions the claimant receives botox injections every three months followed by injections designed to reduce the effects of the botox. The claimant's condition "flares" several times per year (often at times near the injection cycle). The ALJ found that during these "flares" the claimant is essentially "bed ridden." (Findings of Fact 25, 33).
The claimant, who is permanently and totally disabled, sought numerous items and modifications to her home as medical treatment under § 8-42-101(1)(a), C.R.S. 2004. These items generally fall into the categories of transportation (electric wheelchair or scooter, vehicle modification), home modification (widening of bedroom door and hallway, pool, larger bathroom, kitchen modifications, stairglide or laundry room modification), implements (kitchen and bathroom tools), and horseback or "hippotherapy."
The ALJ increased the claimant's home health care to 12 hours per day during "flares." However, the ALJ denied the claimant's requests for the various implements and modifications. Generally, the ALJ found that the claimant failed to prove that a number of the requested items are reasonable and necessary to treat the claimant's condition. The ALJ also found that some of the items are not compensable under the Act because they are not "medical" in nature. The claimant appeals arguing that the evidence and law do not support the order.
The ALJ's rulings are specific to the facts regarding each item. Therefore, we will consider the items separately. However, the following general principles apply to all issues.
Section 8-42-101(1)(a) provides that an insurer must provide such medical treatment, supplies and apparatus "as may reasonably be needed" to cure and relieve the effects of the injury. To be a "medical" apparatus the item must provide treatment or therapeutic relief from the injury. An item may also be "medical" if it is incident to treatment in the sense that it enables the claimant to obtain medically necessary treatment, or is a minor concomitant of medical treatment. Bogue v. SDI Corp., Inc., 931 P.3d 477 (Colo.App. 1996); Country Squire Kennels v. Tarshis, 899 P.2d 362 (Colo.App. 1995); Cheyenne County Nursing Home v. Industrial Claim Appeals Office, 892 P.2d 443 (Colo.App. 1995). The question of whether a treatment or apparatus is "medical" in nature is ordinarily one of fact for determination by the ALJ. Bellone v. Industrial Claim Appeals Office, 940 P.2d 1116 (Colo.App. 1997). Similarly, the question of whether a particular apparatus is reasonably necessary to treat the claimant's condition is also one of fact. Kroupa v. Industrial Claim Appeals Office, 53 P.3d 1192 (Colo.App. 2002).
Because these matters are factual in nature, we must uphold the ALJ's determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2004. This standard of review requires us to consider the evidence in a light most favorable to the prevailing party, and defer to the ALJ's credibility determinations, resolution of conflicts in the evidence, and the plausible inferences drawn from the record. Wilson v. Industrial Claim Appeals Office, 81 P.3d 1117 (Colo.App. 2003).
I.
The claimant contends the ALJ erred in refusing to authorize an electric wheelchair or a motorized scooter to transport the claimant. However, we perceive no error in this ruling. (Finding of Fact 25; Conclusions of Law P. 12).
Except for periods of flare, the ALJ discredited the claimant's testimony that she is unable to walk more than sixty feet. This finding is supported by the March 2004 Swedish Medical Center admission where the claimant reported she is able to function in the areas of mobility and activities of daily living and does not use home health care services. (Respondents' Exhibit H, p. 4). The claimant admitted that she drives when not experiencing a flare. (Tr. P. 19).
During periods of flare, the ALJ determined that the claimant is essentially bed ridden and most services are provided by the home health aide and by family members. The claimant has a manual wheelchair and can be assisted in its use during a flare. Moreover, the taxi cab driver, provided by the respondents, assists in moving the claimant to the cab and transporting her to medical appointments when necessary.
While there is some evidence in the record to support an award of an electric wheelchair or scooter, the ALJ was not persuaded by this evidence. There is substantial evidence to support the findings and inferences drawn by the ALJ, and we may not substitute our judgment for his on this factual issue.
Similarly, the record supports the ALJ's determination that the claimant failed to prove the reasonableness and necessity for vehicle modifications. The claimant's assertion notwithstanding, the claimant did not request an "evaluation" of her vehicle. Rather, at the commencement of the hearing the claimant's counsel defined the issue as "a lift or modification to her car to take the scooter with her." (Tr. Pp. 10-11).
Further, the claimant testified that she would use the modified vehicle to attend medical appointments, go to the grocery store, and retrieve prescriptions. The ALJ found this testimony was insufficient to establish that modifications are reasonable and necessary. The ALJ noted the claimant was indefinite concerning the type of vehicle she seeks to modify, and the type of modification required. Thus, the cost of the proposed changes was not specific. Moreover, as the ALJ noted, the claimant receives transportation to medical appointments during periods of flare, and other household members reside with the claimant and are available to carry out these tasks. Under these circumstances, the record supports the finding that vehicle modifications are not reasonable and necessary.
The record also supports the finding that the vehicle modification is not "medical" in nature for purposes of § 8-42-101(1)(a). As in the Bogue case, the claimant did not establish that a modified vehicle will directly treat the injury or provide therapeutic relief from its effects. The mere fact that such a modification would make it easier to go to the grocery store is insufficient to render a modification "medical" for purposes of the statute. See ABC Disposal Services v. Fortier, 892 P.2d 443 (Colo.App. 1995). Neither did she establish that modification is incidental to treatment since the respondents provide transportation to medical appointments when the claimant is in a period of flare, and reasonable alternatives are available to obtain medication. Finally, the ALJ found the claimant does not need a motorized wheelchair or scooter. Hence, one of the principal reasons for vehicle modification is not applicable.
II.
Next we consider a series of proposed modifications to the claimant's home. The ALJ denied the claimant's request for a heated home pool, finding that the respondents already provide such treatment at an existing facility and a home pool is not reasonable and necessary. (Finding of Fact 27). As the ALJ found the claimant's treating physician acknowledged that the claimant is receiving treatment at an existing facility, although the physician thought a home pool might be more convenient. (Tr. P. 59-60). Under these circumstances, the record supports the ALJ's inference that the claimant is receiving adequate pool therapy and a new home pool is not reasonable or necessary.
The ALJ also denied the claimant's request for a stairglide to access the laundry in her basement, or to modify the home to move the laundry facilities upstairs. We agree with the ALJ's ruling that a laundry facility is not medical in nature because it does not treat the claimant's injury nor does it allow access to medically necessary treatment. Neither is this a case where moving the laundry may be classified as a minor concomitant of medically necessary nursing or home care. See Country Squire Kennels v. Tarshis, supra. Indeed, there is no showing that when the claimant is receiving home assistance during a period of flare that the attendant can't reach the laundry in the basement.
The claimant has also requested various modifications to her kitchen and shower facilities, together with specialized tools. The analysis applicable to the laundry facility also governs the ALJ's denial of these items. Therefore, we perceive no error with regard to the ALJ's ruling.
The ALJ was unpersuaded that the claimant's bedroom doorway and hallway must be widened to accommodate the wheelchair. A wheelchair can be a medical apparatus, and modifications to a home may be considered "medical in nature" when required to allow access to "portions of the residence which provide for the claimant's health and medical necessities." Cheyenne County Nursing Home v. Industrial Claim Appeals Office, 892 P.2d at 446. However, in this case the ALJ was unpersuaded that a modification of the door or hall was necessary because nurse Daly testified that she saw a wheelchair in the claimant's bedroom and "assumed" it would go through the door. (Daly Depo. P. 30). Even the claimant testified that the wheelchair goes through, although she requires assistance to negotiate the door. (Tr. P. 34). Of course, during periods of flare, such assistance is available to the claimant. On this state of the evidence, we cannot say the ALJ erred as a matter of law in finding the claimant is not entitled to the requested modification.
The ALJ also found that enlarging the bathroom is not reasonable and necessary, nor is it medical in nature. In support the ALJ cited evidence that when the claimant is experiencing a flare she has a bedside commode, and that bathing in the bathtub is not feasible. Instead, the claimant receives a "bed bath" administered by the health care assistant. (Daly Depo. Pp. 17, 33-34). Thus, a bathroom modification, while it might make the claimant's life easier, does not directly treat the claimant's injury, nor does it actually provide access to a medically necessary area of the home. While other interpretations of the evidence were certainly possible, substantial evidence supports the order on this issue.
III.
Finally, the ALJ denied the claimant's request for "hippotherapy." The ALJ noted that horse therapy is not identified in the medical treatment guidelines as appropriate treatment for CRPS. Further, the ALJ credited Dr. Primack's opinion that hippotherapy is not appropriate for the claimant.
Although the evidence is conflicting, the ALJ resolved the conflicts against the claimant. It was appropriate for the ALJ to consider the medical treatment guidelines in deciding whether or not hippotherapy is reasonable and necessary for the claimant's condition. See Rook v. Industrial Claim Appeals Office, ___ P.3d ___ (Colo.App. No. 03CA0700, January 13, 2005) (guidelines may be considered as evidence of accepted professional standards for treatment of workers' compensation injuries); Hall v. Industrial Claim Appeals Office, 74 P.3d 459 (Colo.App. 2003) (same). Substantial, albeit conflicting, evidence supports the order on this issue.
IV.
The claimant argues the ALJ drew an improper "adverse inference" from her failure to attend an independent medical examination (IME) scheduled with Dr. Primack on May 14, 2003. (Finding of Fact 21). The claimant alleges the inference is improper as shown by a prehearing order attached to her brief. The prehearing order permits a physician of the claimant's choosing to attend the IME and apparently relieved the claimant of the obligation to attend the May 14 examination and directed that a new IME be scheduled.
Initially, we are not persuaded that the ALJ drew any adverse inference from the claimant's failure to attend the IME. None of the ALJ's ultimate findings of fact concerning the requested medical care are based on the claimant's failure to attend the IME. In any event, if the claimant wished to rebut any inference resulting from her failure to attend she should have introduced the prehearing order at the time of the hearing. Indeed, the claimant was questioned about this incident at the time of the hearing. (Tr. P. 37). Documents attached to a brief are not evidence and we may not consider them. City of Boulder v. Dinsmore, 902 P.2d 925 (Colo.App. 1995).
IT IS THEREFORE ORDERED that the ALJ's order dated October 1, 2004, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
Deborah Deets, 5305 Eldridge St., Arvada, CO 80002.
Multimedia Audio Visual, 7600 E. Orchard Rd., #230S, Englewood, CO 80111.
Liberty Mutual Insurance Company, P.O. Box 3539, Englewood, CO 80155-3539.
Janet L. Frickey, Esq., 940 Wadsworth Blvd., 4th floor, Lakewood, CO 80214 (For Claimant).
Scott M. Busser, Esq., 300 S. Jackson St., #570, Denver, CO 80209 (For Respondents).