Opinion
W.C. No. 4-139-839
November 8, 1995
FINAL ORDER
The respondents seek review of a final order of Administrative Law Judge Wells (ALJ) which required them to pay for "necessary babysitting services" while the claimant was in the hospital. We reverse.
The facts are undisputed. The claimant required knee surgery as a result of her industrial injury. The surgery incapacitated the claimant for one week, apparently because she was in the hospital.
The ALJ found that, "in lieu of hiring a babysitter to watch the children 24 hours per day for one week, Claimant paid her sister the price of [an] airline ticket to come out and watch the children." The airline ticket was valued at $300, which the ALJ stated was "a reasonable amount for babysitting services for one week." Under these circumstances, the ALJ concluded that the respondents are obliged to pay for the "necessary babysitting services."
On review, the respondents argue that an injured worker's children are not entitled to "benefits" under the Act. Further, the respondents argue that child care services are not a compensable medical benefit under § 8-42-101(1)(a), C.R.S. (1995 Cum. Supp.).
The claimant agrees that, under the Act, her children are not entitled to "benefits." However, the claimant argues that the child care expenses are compensable because they were incident to her receipt of authorized medical treatment under § 8-42-101(1)(a). In support of this position the claimant relies on Grover v. Industrial Commission, 759 P.2d 705 (Colo. 1988).
Since all parties agree that the claimant's children are not entitled to direct benefits, the question is whether the child care expenses are compensable under § 8-42-101(1)(a). The statute provides as follows:
"Every employer, regardless of said employer's method of insurance, shall furnish such medical, surgical, dental, nursing, and hospital treatment, . . . . 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."
In order for a particular service to be compensable under this statute it must be medical in nature or incidental to obtaining necessary medical treatment. See Country Squire Kennels v. Tarshis, 899 P.2d 362 (Colo. 1995). Our courts have narrowly construed § 8-42-101(1)(a) in deciding whether a particular service or apparatus is "medical" in nature. Cheyenne County Nursing Home v. Industrial Claim Appeals Office, 892 P.2d 443 (Colo.App. 1995). In order to be classified as "medical" the service must relieve the symptoms or effects of the injury and be directly associated with the claimant' physical needs. Cheyenne County Nursing Home v. Industrial Claim Appeals Office, supra; Hillen v. Tool King, 851 P.2d 289, (Colo.App. 1993).
We have previously held that medically prescribed child care services do not constitute a compensable medical benefit under § 8-42-101(1)(a). The rationale for these decisions is that medically prescribed child care services do not relate directly to the claimant's physical health or treat the symptoms arising from the compensable injury. Manigold v. Ewing Technical Design, Inc., W.C. No. 3-998-380, November 19, 1993; Jones v. University Heights Nursing Home, W.C. No. 3-950-241, July 20, 1992, aff'd, Jones v. University Heights Nursing Home, Colo. App. No. 92CA1260, May 27, 1993 (not selected for publication). We see no reason to depart from our prior holdings, and therefore, conclude that child care services may not be considered a direct medical benefit under the statute.
However, the claimant's argument is that the child care services were "incidental" to the provision of the necessary surgical treatment. She argues that she could not have undergone the surgical treatment without providing care for her children. Moreover, the claimant reasons that her expense was greater than that incurred by an "ordinary worker" because she was required to obtain services twenty-four hours per day. We are unpersuaded.
It is true that respondents have been required to pay expenses when they are "incidental" to the provision of reasonably necessary medical treatment. In some cases the term "incident to" has meant that the expense "enables" the claimant to receive treatment. In other cases, the phrase "incident to" refers to services which are provided as a "minor concomitant" of the medical treatment. Country Squire Kennels v. Tarshis, supra.
Our courts have identified two types of expenses which are "incident to" medical treatment because they "enable" the claimant to receive treatment. In Industrial Commission v. Pacific Employers Insurance Co., 120 Colo. 373, 209 P.2d 908 (1949), the court allowed compensation for room and board while a 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. The courts have also allowed transportation expenses incurred in obtaining authorized medical treatment. Sigman Meat Co. v. Industrial Claim Appeals Office, 761 P.2d 265 (Colo.App. 1988).
Other cases have compensated housekeeping expenses on the theory that they are "incident to" medical treatment. As indicated in Country Squire Kennels v. Tarshis, supra, these cases hold that the housekeeping services are compensable as a minor aspect of medically necessary nursing care services. Eg., Valdez v. Gas Stop, 857 P.2d 544 (Colo.App. 1993).
In this case, the child care expenses were not "incident to" the claimant's medical treatment on the theory that they were a "minor concomitant" of the treatment. The child care services were not provided as part of an overall home health care program designed to treat the claimant's physical condition. In fact, the services were provided by the claimant's sister, and were completely unconnected with the claimant's medical treatment.
However, the question of whether the child care services are compensable because they "enabled" the claimant to receive medical treatment is more troubling. In one sense, the claimant could not receive the surgical treatment unless provisions were made for the care of her children. Thus, a plausible argument can be made that the child care services "enabled" the claimant to undergo surgery.
However, we believe that this argument pushes the concept of "enabling" too far. Industrial Commission v. Pacific Employers Insurance Co., and Sigman Meat Co. v. Industrial Claim Appeals Office, suggest that incidental expenses are not compensable unless they would not have been incurred but for the industrial injury. In Pacific Employers, the room and board were compensable only so long as the claimant was required to be away from his usual residence. Similarly, transportation expenses are the kind of expense which would not be incurred but for the medical treatment necessitated by the industrial injury.
However, the child care expenses incurred by the claimant do not fall within the parameters of Pacific Employers and Sigman Meat. Unlike the compensable expenses in those cases, the claimant would have been required to provide twenty-four hour per day child care whether or not the industrial injury occurred. It is true that the claimant might have provided some of the care herself, and therefore, not incurred any actual dollar cost. However, the need for child care existed regardless of the industrial injury, not because of the injury.
Under these circumstances we do not believe that the child care expenses "enabled" the claimant to obtain medical treatment within the meaning of Pacific Employers. To the contrary, we believe these expenses are analogous to the living expenses which the Pacific Employers claimant incurred after moving nearer to the hospital.
Neither are we persuaded by the claimant's reliance on Grover v. Industrial Commission, supra. The claimant's argument notwithstanding, a careful reading of Grover reveals that the award of child care expenses was predicated on the specific language of former § 8-49-101(4), which gave ALJs explicit authority to provide "services" deemed necessary to the completion of vocational rehabilitation. Section 8-49-101(4) was deleted when vocational rehabilitation was eliminated, and no similar language remains in the statute. Consequently, as we have previously held, Grover v. Industrial Commission does not govern a claimant's entitlement to child care services as an incident of medical treatment provided under § 8-42-101(1)(a). Jones v. University Heights Nursing Home, supra.
It follows that the ALJ's award of child care expenses must be reversed. Obviously, we do not consider the respondents' appeal to be frivolous, and deny the claimant's request for attorney fees.
The respondents sought to file a "Reply Brief" after the matter was transmitted to us for review. The claimant objected. We have not considered the reply brief in connection with the appeal, and therefore, the motion to file the reply brief is moot.
IT IS THEREFORE ORDERED that the ALJ's order, dated January 20, 1995, is reversed insofar as it ordered the respondents to pay for child care services.
INDUSTRIAL CLAIM APPEAL PANEL
___________________________________ David Cain
___________________________________ Kathy E. DeanNOTICE
This Order is final unless an action to modify or vacate the Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, Colorado 80203, by filing a petition to 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 the Order was mailed, pursuant to §§ 8-43-301(10) and 307, C.R.S. (1995 Cum. Supp.).
Copies of this decision were mailed November 8, 1995 to the following parties:
Dana S. Kuziel, Q4695 BS Allworth, Ft. Carson, CO 80913
Pet Fair, Inc., 4450 Whispering Cr. N., Colorado Springs, CO 80917-3629
Colorado Compensation Insurance Authority, Attn: D. Thomas, Esq. (Interagency Mail)
William A. Alexander, Jr., Esq., 3608 Galley Rd., Colorado Springs, CO 80909
(For the Claimant)
By: ______________________