Opinion
W.C. No. 4-491-100.
March 3, 2005.
FINAL ORDER
The respondent seeks review of an order of Administrative Law Judge Martinez (ALJ) insofar as it requires the respondent to reimburse the claimant for mileage expenses incurred to procure prescription medications. We affirm.
The claimant testified that he procured prescribed medications at a pharmacy in a supermarket located 8 miles round trip from his home. According to the claimant, this pharmacy was the nearest one to his residence. The claimant also testified that he passed within two blocks of the pharmacy when going to and from work five days per week, and that his wife bought groceries at the supermarket. The claimant also introduced into evidence an exhibit showing that between December 17, 2000, and February 23, 2004, he traveled 624 miles to procure medications.
The ALJ credited the claimant's testimony, and concluded it was necessary for the claimant to procure the medications to cure and relieve the effects of the industrial injury. The ALJ further stated that although the claimant might have been able to "coordinate his schedule so that he could pick up his medications in the course of performing his daily errands," that possibility did not mitigate the respondent's liability for transportation expenses. Accordingly, the ALJ held the respondent is liable to reimburse the claimant for mileage expenses incurred by him to obtain his prescription medications.
On review, the respondent asserts the findings are insufficient to support appellate review, the findings are not supported by the evidence, and the findings do not support the award of mileage expenses. Specifically, the respondent argues there is no finding, and indeed no evidence, that the claimant incurred any transportation expenses to procure medications. The respondent further contends the ALJ failed to evaluate evidence that the claimant could have obtained the medications more cheaply by picking them up on the way to or from work, or during regular grocery shopping trips. Under these circumstances the respondent contends neither the record nor the findings support the award. We are not persuaded.
Relying on 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), we have held that reasonable mileage expenses incurred incident to procuring prescribed medications are compensable. Anderson v. United Airlines, W.C. No. 4-445-052 (January 9, 2004); Daughtry v. King Soopers, Inc., W.C. No. 3-837-001 (January 17, 1996). We note that Rule XVIII (F)(5), 7 Code Colo. Reg. 1101-3 at 120, now expressly provides for reimbursement of reasonable and necessary "mileage to obtain prescribed medications."
The questions of whether particular mileage expenses are incidental to medical treatment, and whether they are reasonable and necessary are issues of fact for determination by the ALJ. Kroupa v. Industrial Claim Appeals Office, 53 P.3d 1192 (Colo.App. 2002); Bellone v. Industrial Claim Appeals Office, 940 P.2d 1116 (Colo.App. 1997). Because these issues 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 resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record. Where two inferences are equally plausible, it is for the ALJ to resolve the issue. Wilson v. Industrial Claim Appeals Office, 81 P.3d 1117 (Colo.App. 2003).
It is true the ALJ's findings and conclusions must be sufficient to indicate the legal and factual bases of the award. However, the ALJ need only make findings concerning the evidence he determines is dispositive of the issues. Evidence and inferences not discussed in the order are presumed to have been rejected. We may also consider findings necessarily implied by the order. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000).
The respondent's argument notwithstanding, we reject the assertion that the findings are insufficient to establish the ALJ's conclusion that mileage expenses were "actually incurred." The ALJ credited the claimant's testimony, and the claimant testified that he drove to the pharmacy to procure medicine. Moreover, the claimant's testimony explicitly incorporated Exhibit 15, the itemized mileage chart showing trips to the pharmacy. (Tr. P. 8-9). Finally, the ALJ ordered the respondent to "reimburse" the claimant "for mileage expense incurred by him," demonstrating the ALJ found that mileage expenses were actually incurred.
Neither did the ALJ fail to address the fact that the claimant passed by the supermarket on his way to work and did his grocery shopping there. To the contrary, the ALJ expressly acknowledged the existence of this evidence, but was not persuaded by it. (Finding of Fact 4; Conclusion of Law 2). The ALJ determined it was not the claimant's responsibility to "coordinate his schedule" to minimize mileage. We cannot say the evidence required the ALJ to reach a different conclusion considering the amount of time the claimant might have expended in attempting to coordinate his schedule with pharmacy deliveries, and considering the relatively small expense involved. Indeed, the claimant testified that prescriptions were not always ready at the same time so that more than one trip to the pharmacy was sometimes necessary. (Tr. P. 12). We also note that Exhibit 15 indicates that on a number of occasions the claimant picked up more than one prescription on the same date, indicating a willingness to maximize efficiency where possible.
It follows the record contains substantial, albeit conflicting, evidence that the mileage expenses were incident to treatment, and were reasonable and necessary to the claimant's treatment. Thus, the record supports the findings, and the findings support the award of mileage expenses.
IT IS THEREFORE ORDERED that the ALJ's order dated September 29, 2004, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
_______________________________ David Cain
_______________________________ Kathy E. Dean
Louis Gonzales, Montrose, CO, Louisiana Pacific, Olathe, CO, Colleen Sullivan, Claims Examiner, Greenwood Village, CO, Joanna C. Jensen, Esq., Grand Junction, CO, (For Claimant).
James R. Clifton, Esq., Denver, CO, (For Respondents).