Opinion
W.C. No. 3-809-367
February 24, 1999.
FINAL ORDER
The claimant and the respondents petitioned separately for review of an order of Administrative Law Judge Wheelock (ALJ), which awarded medical benefits and determined average weekly wage. We affirm.
In 1985, the claimant sustained compensable injuries while working for the respondent-employer. As a result of the injury, the claimant developed four-extremity Reflex Sympathetic Dystrophy (RSD), fibromyalgia and thoracic outlet syndrome (TOS). It is undisputed the claimant is permanently and totally disabled.
The respondents admitted liability for temporary total and permanent total disability benefits based on a twenty hour work week at $3.40 per hour, for an average weekly wage of $72.38. The respondents did not include the value of the employer- provided meals equal to $4.38 per week. The claimant requested that her average weekly wage be increased to include the value of the employer-provided meals, and calculated on a forty hour work week. In support, the claimant testified that even though she was working part-time at the time of the injury she intended to work full-time when her children were in school, that she was on call and available to work more than twenty hours a week for the employer, that she looked for full-time work after the injury, and that the injury precluded her from successfully returning to work. The claimant also requested medical benefits consistent with Dr. McLellan's recommendation for "essential services."
The ALJ increased the average weekly wage and the resulting permanent total disability rate by the value of the employer provided meals. However, the ALJ refused to calculate the claimant's average weekly wage based upon a forty hour work week.
The ALJ also found that as a result of the RSD, the claimant is unable to use her hands for daily activities and relies on her husband to be her hands. Crediting the testimony of Dr. McLellan, the ALJ determined the claimant requires essential services three hours a day for a total of twenty-one hours per week. Therefore, the ALJ ordered the respondents to pay for twenty-one hours per week of essential services provided by the claimant's husband.
I.
The respondents contend the ALJ erroneously ordered them to pay for "housekeeping services. Contrary to the Court of Appeals decision in Country Squire Kennels v. Tarshis, 899 P.2d 362 (Colo.App. 1995), they reason that the services provided by the claimant's husband are not medical or nursing care, and are simply designed to prevent deterioration in the claimant's condition. Consequently, the respondents contend that the housekeeping services are not compensable. We disagree.
Section 8-42-101(1)(a), C.R.S. 1998, requires an employer to provide medical and nursing treatment reasonably necessary to cure and relieve the effects of the industrial injury. Under this standard employers have been required to provide services that are either medically necessary for the treatment of the injury or incidental to obtaining such treatment. Bellone v. Industrial Claim Appeals Office, 940 P.2d 1116 (Colo.App. 1997).
In County Squire Kennels v. Tarshis, supra, the Court of Appeals held that "housekeeping" services are not a compensable medical benefit unless such services are incidental to any reasonably necessary medical, nursing or attendant care services and are central to the claimant's physical health or personal care. See also Valdez v. Gas Stop, 857 P.2d 544 (Colo.App. 1993). The Country Squire Kennels court stated that the term "incidental to" means that the housekeeping must "enable the claimant to obtain medical care or treatment or, alternatively, must be relatively minor in comparison to the medical care and treatment."
The decisions issued by the Court of Appeals concerning compensable medical benefits are confusing and sometimes contradictory. However, the court has repeatedly held that the question of whether a particular service is medically necessary or incident to obtaining medical treatment is one of fact to be resolved by the ALJ based on the particular facts of the case. Bellone v. Industrial Claim Appeals Office, supra; Edward Kraemer Sons, Inc. v. Downey, supra; Atencio v. Quality Care, Inc., supra. Because the issue is factual, we must uphold the ALJ's determinations if supported by substantial evidence in the record. Bellone v. Industrial Claim Appeals Office, supra; section 8-43-301(8), C.R.S.
Substantial evidence is probative evidence which would warrant a reasonable belief in the existence of facts supporting a particular finding, without regard to the existence of contradictory or contrary inferences. Ackerman v. Hilton's Mechanical Men, Inc., 914 P.2d 524 (Colo.App. 1996). Furthermore, the substantial evidence standard requires that we defer to the ALJ's credibility determinations, and plausible inferences she drew from the record. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
In Atencio v. Quality Care, Inc., 791 P.2d 7 (Colo.App. 1990) the claimant was severely restricted by the injury and could not bathe, dress, perform home health care or sanitary functions, nor perform any household chores (such as cooking) without assistance. Under these circumstances, the court held that the evidence supported the conclusion that "housekeeping and attendant care services" provided to the claimant were compensable medical benefits under the "medical necessity test."
In Edward Kraemer Sons, Inc. v. Downey, 852 P.2d 1286 (Colo.App. 1992), the evidence showed that the claimant needed assistance with eating, bathing and preparation for bed, and that the claimant's spouse provided this assistance from 4:00 p.m. until 7:00 a.m.. The court concluded that the spouse's services were the equivalent to nursing care, and thus, compensable.
Here, as in Atencio and Edward Kraemer, the ALJ found that the claimant requires attendant type care, which the claimant's husband provides twenty-four hours a day. The ALJ determined that claimant needs assistance with the "most basic, personal care functions," including bathing, washing, combing her hair, fixing meals and potentially self-catheterization. The ALJ's findings are amply supported by the testimony of the claimant and Dr. McLellan, and therefore, must be upheld. (Tr. pp. 16-29; McLellan depo. pp. 6-7, 11, 13, 20, 27, 32).
Furthermore, the ALJ determined that "housekeeping services" comprise only five hours a week of the medically necessary services prescribed by Dr. McLellan. Thus, the ALJ determined that the housekeeping services provided by the claimant's husband are a "very minor concomitant of the overall home health care" necessary to treat the injury and allow the claimant to "maintain a healthy and sanitary lifestyle." These findings support the conclusion that the prescribed housekeeping services are "incident to" medically necessary nursing or attendant care.
Dr. McLellan's testimony also supports the ALJ's finding that the essential services are designed to improve or prevent a deterioration of the claimant's condition. Dr. McLellan stated that the massage therapy is prescribed for pain relief and muscle tightness. She also stated that the claimant's condition is progressive and that the need for future hospitalization will be dependent on the "level and quality of care [the claimant] gets at home." (McLellan depo. p. 18). Consequently, we reject the respondents' contention that, like the circumstances in Tarshis, the essential services were only prescribed to prevent an aggravation of the claimant's condition. Therefore, we reject the respondents' contention that the case is factually indistinguishable from Tarshis.
However, the respondents contend that the ALJ erroneously relied on the unpublished opinion in Kilwein v. Industrial Claim Appeals Office (Colo.App. No. 97CA0915, April 30, 1995) (not selected for publication) see [Kilwein v. Joseph Hanlin, D.D.S., W.C. Nos. 3-989-542 3-990-631 (May 6, 1997)], for the proposition that services designed to prevent a deterioration of the claimant's condition are compensable. The respondents contend that there is no legal authority to support an award of housekeeping services to prevent a deterioration of the claimant's condition. Again, we disagree.
It is well established that, subject to the same rules as medical treatment before maximum medical improvement (MMI), treatment after MMI which is reasonably designed to prevent a deterioration of the claimant's condition is compensable. See Grover v. Industrial Commission, 759 P.2d 705 (Colo. 1988); Stollmeyer v. Industrial Claim Appeals Office, 916 P.2d 609 (Colo.App. 1995); Milco Construction v. Cowan, 860 P.2d 539 (Colo.App. 1992). It follows that housekeeping services which are prescribed to prevent a deterioration of the claimant's condition are compensable so long as they are incidental to any reasonably necessary medical, nursing or attendant care treatment services, and are central to the claimant's physical health.
In Bellone v. Industrial Claim Appeals Office, supra, the court concluded that medically prescribed child care services were "medical" in nature because the services allowed the claimant to rest and deal with fatigue and other symptoms caused by her work-related seizure disorder. The court further determined that the child care services relieved the symptoms and effects of the injury, were directly associated with the claimant's physical needs, and were "incidental" to an overall home health care program. Consequently, the court held that the medically prescribed child care services were compensable.
Kilwein expressly relied upon Bellone v. Industrial Claim Appeals Office, supra, in holding that medically prescribed housekeeping services to prevent a deterioration of the claimant's condition are compensable. The conclusions in Kilwein are consistent with the holding in Bellone v. Industrial Claim Appeals Office, supra. Therefore, we perceive no error in the ALJ's reliance on the reasoning in Kilwein.
II.
The claimant contends that the ALJ abused his discretion in refusing to calculate her average weekly wage based upon a forty hour work week. We perceive no abuse of discretion.
As argued by the claimant § 8-42-101(3), C.R.S. 1998, provides that the ALJ may compute the claimant's average weekly wage by such method as will, in the ALJ's opinion, fairly determine the claimant's average weekly wage. Because the ALJ's authority is discretionary, we may not interfere with the ALJ's order unless it "exceeds the bounds of reason." Coates, Reid Waldron v. Vigil, 856 P.2d 850 (Colo. 1993); Rosenberg v. Board of Education of School District #1, 710 P.2d 1095 (Colo. 1985). Further, we cannot say that the ALJ abused his discretion if his determination is supported by substantial evidence in the record and the applicable law. Coates, Reid Waldron v. Vigil, supra. We conclude that the ALJ's determination of the claimant's average work week is supported by substantial evidence in the record. Therefore, we perceive no abuse of discretion.
Average weekly wage is to be based upon the claimant's earnings at the time of the injury. Sections 8-40-201(19)(a), C.R.S. 1998; and § 8-42-102(2), C.R.S. 1998. Here, the claimant admitted that at the time she was hired by the employer she only wanted part-time work and thought the employer had no full-time jobs. (Tr. p. 31). She also admitted that even though she was on call, she never worked a forty hour work week. (Tr. pp. 34, 35). Further, the employer's witness, Carl Ann Spearing, testified that the employer had no full- time cashiers at the time of the claimant's injury. (Tr. p. 44). Under these circumstances, the ALJ could reasonably infer that the claimant's average weekly wage is fairly calculated using a 20 hour work week.
The claimant's reliance on United Utilities Specialties Corp v. Industrial Commission, 418 P.2d 896 (Colo. 1966) for a contrary result is misplaced. That case is factually distinguishable. In United Utilities the claimant was awarded disability benefits based upon a forty hour work week despite the employer's testimony that the claimant was hired to work a 24 hour work week. However, unlike the findings in this case, the evidence in United revealed that the claimant actually worked forty hours a week, and therefore, the court rejected the employer's argument that the claimant was a part-time employee.
The claimant's remaining arguments have been considered and are not persuasive. Regardless of whether temporary disability and permanent disability benefits compensate for distinct earning losses, the statute dictates that both types of benefits be determined from the average weekly wage. Therefore, the distinction does not compel the conclusion that the ALJ abused his discretion in refusing to increase the claimant's permanent total disability rate.
Moreover, insofar as the claimant contends that the ALJ should have retroactively increased her temporary total disability rate to include the value of the employer provided meals, this argument was not made before the ALJ. Rather, at the hearing the claimant only requested that the average weekly wage be increased for permanent total disability benefits. (Tr. p. 15). Therefore, we shall not consider the claimant's argument for the first time on appeal. Pacheco v. Roaring Fork Aggregates, 897 P.2d 872 (Colo.App. 1995).
IT IS THEREFORE ORDERED that the ALJ's order dated September 29, 1998, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
________________________________ David Cain
________________________________ Kathy E. Dean
NOTICE
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, 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. 1998.
Copies of this decision were mailed February 24, 1999 to the following parties:
Evelyn Fernandez, 2621 Ontario Street, Pueblo, CO 81004
Barbara McDaniel, Automobile Insurance Co. of Hartford, c/o Aetna/Travelers Casualty Surety, PO Box 173762, Denver, CO 80217-3762
Steven U. Mullens, Esq., 1401 Court Street, Pueblo, CO 81003 (For Claimant)
Lawrence D. Blackman, Esq., 1515 Arapahoe Street, Tower Three, Suite 600, Denver, CO 80202 (For Respondents)
BY: ________________