Opinion
W.C. No. 4-554-398.
November 29, 2004.
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Martinez (ALJ) which required them to pay for home health care services provided by the claimant's spouse. We affirm.
The claimant suffered a hip injury and fractured both arms on January 14, 2002, when he fell from a roof. Initially, the claimant's arms were in casts, which precluded most upper extremity movement. As a result of the injuries, the claimant underwent the following surgeries:
January 14, 2002 — both arms June 14, 2002 — right arm January 27, 2003 — both arms February 14, 2003 — right arm February 17, 2003 — right arm When the claimant was discharged from the hospital on January 16, 2002, the respondents provided home health care services between the hours of 9:00 a.m. and 5:00 p.m. The claimant's spouse attended to the claimant beginning at 5 p.m., when she returned home from work. Eventually, the claimant's spouse quit her employment so she could care for the claimant full-time. The respondents then terminated the home health care services it had been providing.The claimant requested compensation for his wife's services. However, the respondents refused to pay for the services, except for the period between February 14, 2003 and February 28, 2003.
The ALJ found the claimant's spouse provided medical and attendant care which was reasonable and necessary to relieve the effects of the industrial injuries. The ALJ then ordered the respondents to pay the claimant's spouse at the rate of $10 per hour for the following periods of home health care:
January 16 to June 30, 2002 — 8 hours per day
July 1 to December 31,2002 — 4 hours per day
January 27 to March 20, 2003 — 8 hours per day
March 21 to June 30, 2003 — 4 hours per day
July 19 to July 19, 2003 — 3 hours per day
I.
On review, the respondents point out that the attending surgeon, Dr. Signh, never prescribed home health care services over 8 hours per day. Accordingly, the respondents argue that any services provided by the claimant's spouse after 5 p.m. could not be reasonable or necessary. We disagree.
Section 8-42-101(1)(a), C.R.S. 2004, requires the employer to provide such "medical" and "nursing" 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."
To be a compensable medical benefit, the service must be medical in nature or incidental to obtaining such medical or nursing treatment. Country Squire Kennels v. Tarshis, 899 P.2d 362 (Colo.App. 1995). Services which are "medical in nature" include home health care services in the nature of "attendant care" if reasonably needed to cure or relieve the effects of the industrial injury. Atencio v. Quality Care, Inc., 791 P.2d 7 (Colo.App. 1990). Such services may encompass assisting the claimant with activities of daily living, including matters of personal hygiene. Suetrack v. Industrial Claim Appeals Office, 902 P.2d 854 (Colo.App. 1995). Further, it is well established that a claimant's spouse may be compensated for nursing type services. Edward Kraemer Sons, Inc. v. Downey, 852 P.2d 1286 (Colo.App. 1992).
Initially, we reject the respondents' contention that the claimant's spouse provided only services consistent with a marital relationship. There is extensive testimony from the claimant and his spouse that the claimant's virtual incapacity required his spouse to provide direct medical care and assistance with activities of daily living, including matters of personal hygiene. (Tr. pp. 59-61, 63, 70). Evidence that the respondents terminated home health care services from a private agency after the claimant's spouse quit her job to attend to the claimant also supports the ALJ's finding that the claimant's spouse was providing compensable services. (Tr. p. 67).
Further, there no rule or statute which requires the claimant to present evidence of a medical prescription from the attending physician before attendant care may be found to be medical in nature. See Bellone v. Industrial Claim Appeals Office, 940 P.2d 1116 (Colo.App. 1997). Consequently, the ALJ was not precluded from awarding attendant services for a greater duration and frequency than prescribed by Dr. Singh.
II.
Nevertheless, the respondents argue that they cannot be required to pay the claimant's spouse because she was never authorized, and no physician ever requested pre-authorization of the spouse's services as required by the Rules of Procedure, Part XVI(E)(1)(a)(2), 7 Code Colo. Reg. 1101-3. The ALJ rejected these arguments and we perceive no reversible error.
Respondents are liable only for emergency and authorized medical treatment and § 8-43-404(5), C.R.S. 2004, affords the respondents the right to select the authorized treating physician. Sims v. Industrial Claim Appeals Office, 797 P.2d 777 (Colo.App. 1990). Once the respondents have exercised that right, the claimant may not change physicians without approval from the respondent-insurer or the ALJ, unless the respondents impliedly give the claimant permission to select the treating physician, or the claimant is referred to another provider in the normal progression of treatment from an authorized provider. Greager v. Industrial Commission, 701 P.2d 168 (Colo.App. 1985). Rule XVI(I) at 79 and Rule XVIII(F)(11)(b) at 122.2 (2003), arguably require the treating physician to request pre-authorization for in-home services such as those provided by the claimant's spouse. However, the mere existence of a procedural requirement does not preclude application of equitable principles, including waiver and estoppel, where the facts warrant their application. Johnson v. Industrial Commission, 761 P.2d 1140 (Colo. 1988).
Here the ALJ effectively determined that the respondents were estopped from asserting technical irregularities in the spouse's authorization for home care services. See Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000) (ALJ is not held to crystalline standard in articulating his findings of fact and we may consider findings which are necessarily implied by the ALJ's order). We conclude the record supports the ALJ's determination. See People v. Wolfe, 9 P.3d 1137 (Colo.App. 1999) (whether estoppel barred recoupment of overpayment was factual issue for ALJ).
To establish an application of the doctrine of equitable estoppel, the claimant must prove four elements. The elements are: (1) the party to be estopped must know the relevant facts; (2) the party to be estopped must also intend that its conduct be acted on or must so act that the party asserting the estoppel has a right to believe the other party's conduct is so intended; (3) the party asserting the estoppel must be ignorant of the true facts; (4) the party asserting the estoppel must reasonably rely on the other party's conduct to his or her detriment. Johnson v. Industrial Commission, supra; Sneath v. Express Messenger Service, 931 P.2d 565 (Colo.App. 1996).
The claimant's spouse testified that a physician's assistant (P.A.) supervised by Dr. Singh, prescribed home health care services within 3 to 4 weeks after the industrial injury. (Tr. p. 91). Cf. Phelps v. Heart of the Rockies Medical Center, W.C. No. 4-462-794 (January 23, 2003) (referral by P.A. is the equivalent of a referral by physician). Because the claimant's spouse was providing services similar to the home health care services the respondents purchased from a private agency, the claimant's spouse asked the respondent-insurer's case manager to compensate her but was told the insurer did not pay for such services. ( See Tr. p. 82). Nevertheless, the respondents eventually did pay the claimant's spouse for home health care services. Based on this evidence, the ALJ could reasonably infer that the respondents knew that the home health care services provided by a claimant's spouse could be a compensable medical treatment, but made representations to the contrary to dissuade the claimant from requesting compensation for his spouse. Further, there is evidence that, at least initially, the claimant may have relied on the respondents' representations to forego getting Dr. Singh to request prior-authorization for the spouse's services. Therefore, we conclude the record supports the ALJ's decision that it would be inequitable to preclude the claimant from litigating his request for home care services based on the claimant's failure to have Dr. Singh submit a timely request for pre-authorization of the spouse's services.
III.
Finally, the respondents contend the ALJ erroneously excluded activity reports prepared by their case manager. The respondents argue that the activity reports are medical records, and thus, admissible under § 8-43-210, C.R.S. 2004, without formal identification. Alternatively, the respondents contend it was an abuse of direction for the ALJ to deny their request to take the post-hearing deposition of the case manager to formally authenticate the activity reports. Again, we disagree.
A.
Section 8-43-210 provides that:
"medical and hospital records, physicians' reports, vocational reports, and records of the employer are admissible as evidence and can be filed in the record as evidence without formal identification if relevant to any issue in the case." (Emphasis added).
In Braden v. Integrated Health Services, W.C. No. 4-406-349 (December 21, 1999), we concluded that the General Assembly intended to allow the automatic admission of physician's reports based on an implicit determination that such reports have indicia of reliability that is absent in other documentary evidence. Specifically, physician's reports are presumed to be created in the regular course of business operations, and not generated for the sole purpose of defending workers' compensation claims. Accordingly, in Jeppsen v. Huerfano Medical Center, W.C. No. 4-440-444 (December 17, 2003), we concluded that a pharmacy record is a "medical record" within the meaning of § 8-43-210 because it was generated by a provider of medical treatment and itemized the cost of specific prescriptions provided for treatment of the industrial injury.
Here, the disputed evidence consists of reports prepared by a nurse practitioner hired by the respondent-insurer to oversee the claimant's treatment and report back to the respondent-insurer. See § 8-42-101(3.6)(p)(I)(A), C.R.S. 2004 ("Case Management means a system developed by the insurance carrier in which the carrier shall assign a person knowledgeable in workers' compensation health care to communicate with the employer, employee and treating physician to assure that appropriate and timely medical care is being provided."). However, the nurse did not provide any actual treatment, and there is no evidence the nurse was supervised by or worked at the direction of a physician. ( See Tr. p. 22). Consequently, we perceive no error in the ALJ's finding that the activity reports are not "medical records" within the meaning of § 8-43-210.
Moreover, we do not believe Churchill v. Sears, Roebuck Co., 720 P.2d 171 (Colo.App. 1986), compels a contrary result. In Churchill, the Court held that a letter written by an employer to a vocational counselor concerning the reasons the claimant's on-the-job vocational rehabilitation training program was terminated was admissible without formal identification. In so doing, the court concluded that the letter was both a "vocational report" and a "record of the employer." However, the Churchill court was not required to resolve the argument presented here concerning the meaning of the term "medical record."
B.
Section § 8-43-207(1)(j), C.R.S. 2004, permits an ALJ to "adjourn any hearing to a later date for the taking of additional evidence" when "good cause" is shown. Because the ALJ is given wide discretion in determining whether permit the taking of post-hearing evidence, we may not disturb the ALJ's ruling in the absence of an abuse of direction. IPMC Transportation Co. v. Industrial Claim Appeals Office, 753 P.2d 803 (Colo.App. 1988). An abuse of discretion is not shown unless the ALJ's determination is beyond the bounds of reason, as where it is contrary to law or unsupported by the evidence. Pizza Hut v. Industrial Claim Appeals Office, 18 P.3d 867 (Colo.App. 2001).
The ALJ acknowledged that the case manager's records would be admissible if relevant and formally authenticated. (Tr. p. 94). However, the ALJ implicitly determined the respondents failed to establish the records were relevant even if authenticated. (Tr. p. 94). Therefore, the ALJ denied the respondents' request to depose the nurse case manager.
On review, the respondents argue that the case manager's reports establish that simultaneous to the claimant's request for payment of his wife's home health care, the claimant's spouse discharged the home health care worker retained by the respondents because the claimant's condition had significantly improved and home health care was no longer required. However, the respondents did not make this argument before the ALJ. (Tr. p. 93). Consequently, we cannot say the ALJ abused his discretion in failing to permit the post-hearing deposition.
IT IS THEREFORE ORDERED that the ALJ's order dated, February 27, 2004, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Dona Halsey
Kevin Lopez, Montrose, CO, Kathy McKee, Silverleaf Insulation and Roofing, Oklahoma City, OK, Claudia Renegar, Western Guaranty Fund, Denver, CO, Christopher Seidman, Esq., Grand Junction, CO (For Claimant).
Thomas L. Kanan, Esq. and Kristin A. Caruso, Esq., Denver, CO (For Respondents).