Opinion
W.C. No. 4-312-227
October 21, 1997
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Martinez (ALJ) which denied and dismissed his request for travel expenses. We affirm the order in part, set it aside in part, and remand the matter to the ALJ for entry of a new order.
As a result of a compensable industrial injury the claimant is a paraplegic and required to use a wheelchair. As part of the prescribed treatment, the claimant attended a rehabilitation program at the Craig Hospital (Craig) in Denver. Upon completing the program, the claimant's wife rented a U-Haul trailer to move the claimant's personal items from Craig to his home in Hesperus, Colorado. The claimant requested that the respondents be ordered to reimburse him for the cost of the U-Haul rental and the purchase of towing equipment.
The claimant has not been able to drive since the accident. However, the claimant's mother purchased a 1996 four-wheel drive pickup truck and paid for modifications which would enable the claimant to operate the truck. The claimant testified that he needs the truck for travel to and from medical appointments because the transportation provided by the Colorado Compensation Insurance Authority (CCIA) through Durango Transportation, has not been reliable. The claimant also stated that Durango Transportation is not available to pick up his prescription medications, or transport him in a medical emergency. Further, the claimant stated that an employee of the CCIA told him there was a "possibility" that the CCIA would contribute a portion of the purchase price and cost of modifying a vehicle. Under these circumstances, the claimant sought reimbursement for the costs incurred to modify truck. The claimant also sought reimbursement for use of the truck at a rate of 53.3 cents per mile.
The ALJ was not persuaded that the CCIA represented to either the claimant or his family that the CCIA would pay for the cost of a truck or modifications needed to accommodate the claimant's medical restrictions. The ALJ also found that the claimant did not reasonably rely on any representation from the CCIA in purchasing the 1996 truck. Expressly citing Bogue v. SDI Corporation, Inc., 931 P.2d 477 (Colo.App. 1996), cert. denied, January 27, 1997, and Cheyenne County Nursing Home, v. Industrial Claim Appeals Office, 892 P.2d 443 (Colo.App. 1995), the ALJ further found that the modified truck was not a compensable medical benefit because it did not provide "therapeutic relief from the effects of the injury." Therefore, the ALJ refused to order the respondents to pay for the cost of the modifications. The ALJ also denied reimbursement for the cost of renting the U-Haul trailer.
With regard to mileage, the ALJ determined that the Rules of Procedure, Part XVIII(E)(7)(d), Code Colo. Reg. 1101-3 at 110 (1995), restrict the claimant to mileage reimbursement at the rate of 20 cents per mile for a standard vehicle, and 24 cents per mile for a four-wheel drive vehicle. Therefore, the ALJ concluded that he lacked authority to award the claimant mileage reimbursement in excess of 24 cents per mile.
I.
On review the claimant first contests the ALJ's order insofar as it denied his request for reimbursement of the costs incurred to modify the truck and rent the U-Haul trailer. The claimant contends that the ALJ applied the wrong legal standard by requiring proof that the modifications and U-Haul trailer provided therapeutic benefit. Rather, the claimant contends that these expenses are compensable because they were "incidental" to obtaining medical treatment.
As argued by the claimant, the respondents are liable for medical services and medical apparatus which are either medical in nature or "incidental" to obtaining medical treatment. Section 8-42-101(1)(a), C.R.S. 1997; Country Squire Kennels v. Industrial Claim Appeals Office, 899 P.2d 362 (Colo.App. 1995). An expense is "medical in nature" if it relieves the symptoms or effects of the injury and is directly related to the claimant's physical needs. Bellone v. Industrial Claim Appeals Office, 940 P.2d 1116 (Colo.App. 1997); Hillen v. Tool King, 851 P.2d 289 (Colo.App. 1993).
An expense is "incidental" to medical treatment if the expense "enables" the claimant to obtain treatment or is a "minor concomitant" of medical treatment. Country Squire Kennels v. Industrial Claim Appeals Office, supra. "Incidental" expenses have been found to include room and board where the claimant is required to be away from home to access prescribed medical treatment. Industrial Commission v. Pacific Employers Insurance Co., 120 Colo. 373, 209 P.2d 908 (1949); Springfield v. LaMesa Glass, W.C. No. 3-796-658 (September 16, 1992).
Costs incurred in traveling to and from medical appointments are also considered to be "incidental" to the cost of obtaining medical treatment, and are compensable as long as the expenses are reasonable and necessary. Sigman Meat Co. v. Industrial Claim Appeals Office, 761 P.2d 265 (Colo.App. 1988); Daughtry v. King Soopers, Inc. W.C. No. 3-837-001, (January 17, 1996) ; Lloyd v. City Market, Inc., W.C. No. 3-050-990 (August 8, 1990); Stalford v. Tink Wilkerson, Inc., W.C. No. 3-820-571 (September 16, 1987). In Sigman, the claimant was reimbursed for taxi fare where the effects of his injury precluded him from driving long distances to his medical appointments.
The determination of whether a particular expense is "incidental" to obtaining medical treatment is a question of fact for resolution by the ALJ. Edward Kraemer Sons, Inc. v. Downey, 852 P.2d 1286 (Colo.App. 1992). Moreover, the reasonableness of the expense is also a question of fact. City of Durango v. Dunagan, 939 P.2d 496 (Colo.App. 1997). Consequently, we must uphold the ALJ's determinations on appeal if supported by substantial evidence and plausible inferences drawn from the record. Suetrack USA v. Industrial Claim Appeals Office, 902 P.2d 854 (Colo.App. 1995).
In Bogue v. SDI Corporation, Inc., supra, the court denied reimbursement for the cost of a wheelchair accessible van to a worker who was an incomplete quadriplegic. The court concluded that for a particular "apparatus" to be considered a compensable medical benefit, it must be reasonably necessary for the treatment of the injury or provide therapeutic relief from the effects of the injury. Because the wheelchair accessible van did nothing to care for or remedy the quadriplegia, the court concluded that it was not a medical "apparatus." See also Cheyenne County Nursing Home, v. Industrial Claim Appeals Office, supra. (stair glide not compensable medical apparatus); ABC Disposal Services v. Fortier, 809 P.2d 1071, 1072 (Colo.App. 1990) (medically prescribed snowblower does not provide therapeutic relief). Furthermore, the court held that an apparatus which is recommended to increase an injured worker's sense of independence is beyond the scope of the Workers' Compensation Act (Act).
Contrary to the claimant's argument, the Bogue court also considered the issue of whether the modified van was an expense "incidental" to obtaining prescribed medical treatment. In so doing, the court noted the injured worker's admission that the insurer provided transportation to all of his medically-related appointments, and the ALJ's finding that the injured worker intended to use the van to facilitate travel unrelated to his access to medical care. Under these circumstances, the court concluded that the facts of the case did not involve circumstances where a specially equipped van was a reasonable expense incidental to the receipt of medical treatment.
Here, the ALJ did not expressly use the term "incidental" in denying the claimant's request for reimbursement of the truck modifications. Nevertheless, the ALJ's findings of fact reflect his determination that the modifications to the truck were not incidental to the cost of obtaining medical treatment.
The ALJ found that Durango Transportation had been a reliable transportation service except for one day when a snowstorm shut down most of the businesses in the Durango area. Further, the ALJ found that the CCIA was willing to make adequate arrangements to deliver the claimant's medications, and provide alternate transportation for medical emergencies.
Because the ALJ's findings are supported by substantial evidence in the record, they are binding on review. Under these circumstances, the facts as determined by the ALJ are essentially indistinguishable from the facts in Bogue. Therefore, we reject the claimant's argument that the ALJ erroneously relied upon Bogue and Cheyenne County Nursing Home, v. Industrial Claim Appeals Office, supra.
Moreover, the ALJ's findings support the conclusion that the purchase of a modified truck was neither necessary or reasonable for the claimant to obtain access to medically prescribed treatment. Therefore, we may not disturb the ALJ's order which denied reimbursement for the cost of modifying the truck.
However, we conclude that the ALJ's findings are insufficient to permit appellate review of the claimant's contention that the ALJ applied the wrong legal standard in denying the request for reimbursement of the U-Haul trailer rent. The ALJ found that:
"The evidence does not establish that the rental cost of a U-Haul trailer and the cost of purchasing towing equipment was a reasonable and necessary medical expense necessary to cure and relieve the effects of the claimant's injury."
Based upon this finding, we are unable to determine if the ALJ considered whether the rental of the U-Haul truck was reasonable, necessary and "incidental" to access the claimant's "out of town" treatment at Craig. Therefore, it is necessary to remand the matter to the ALJ for additional findings of fact and the entry of a new order concerning the respondents' liability for the U-Haul trailer rental and towing equipment, which reflects consideration of the proper legal standard.
II.
The claimant also contends that the ALJ erred failing to award mileage reimbursement at the rate of 53.3 cents per mile. The claimant argues that he is entitled to mileage reimbursement at this rate because it reflects his actual cost of operating the modified truck, and is more reasonable than the $2.00 per mile rate charged by Durango Transportation. We reject this argument.
Rule XVIII(E)(7)(d) provides in pertinent part, that an insurer:
"shall reimburse an injured worker for reasonable and necessary mileage expenses for travel to and from medical appointments. The reimbursement rate shall be the prevailing rate of travel reimbursement as provided to state employees."
Furthermore, as found by the ALJ, § 24-9-104(2), C.R.S. 1997, limits state employees to mileage reimbursement at a maximum rate of 24 cents per mile.
Although an administrative rule is not the equivalent of a statute, it is has the force and effect of law. Cornerstone Partners v. Industrial Claim Appeals Office, 830 P.2d 1148 (Colo.App. 1992). Therefore, we agree with the ALJ's conclusion that had no discretion to award the claimant mileage expenses in excess of 24 cents per mile.
However, the claimant points out that § 8-42-101(1)(a) entitles him to reasonable and necessary mileage reimbursement. The claimant also calls our attention to the legal principle that any regulation which is contrary to or inconsistent with the statute it is enacted to enforce is void. Monfort Transportation v. Industrial Claim Appeals Office, 942 P.2d 1358 (Colo.App. 1997) ; Suetrack USA v. Industrial Claim Appeals Office, supra. The claimant contends that, because Rule XVIII(E)(7)(d) arbitrarily limits him to a reimbursement rate of 24 cents per mile, it is inconsistent with § 8-42-101(1)(a). Therefore, the claimant argues that Rule XVIII(E)(7)(d) is void. We disagree.
To resolve the claimant's argument we must apply the principles of statutory construction which require that statutes be construed to give effect to the intent of the General Assembly. Christie v. Coors Transportation Co., 933 P.2d 1330 (Colo. 1997). If clear and unambiguous, language of a statute must be given its plain and ordinary meaning. Zurich American Insurance Company v. Rael, ___ P. ___ (Sup.Ct. 96SC504, September 22, 1997). Further, we should not substitute our own construction of statutory provisions for a reasonable interpretation made by the Director of the Division of Workers' Compensation (Director), unless the Director's interpretation is inconsistent with the clear language of the statute or the legislative intent. Popke v. Industrial Claim Appeals Office, supra.
As stated above, § 8-42-101(1)(a) contemplates that reasonable and necessary mileage expenses are a compensable medical benefit. See Riley Family Trust v. Hood; Sigman Meat Co. v. Industrial Claim Appeals Office, supra. However, § 8-42-101(3)(a)(I) also provides that the Director "shall" establish a schedule "fixing the fees" at which all treatment provided under § 8-42-101 "shall be compensated."
The use of the term "shall" in the statute is presumed to indicate a mandatory requirement. Aren Design, Inc. v. Becerra, 897 P.2d 902 (Colo.App. 1995). Similarly, the term "fixed" is unambiguous. The American Heritage College Dictionary, Third Edition, (1993) defines the word "fixed" to mean set and "not subject to change or variation." It follows that § 8-42-101(3)(a)(I), requires the Director to establish a reasonable reimbursement rate for all medically related mileage, and that rate shall not be subject to change by the ALJs.
Pursuant to § 8-42-101(3)(a) and her rule making authority under § 8-47-107, the Director enacted a Medical Fee Schedule. That schedule includes a fixed fee for mileage reimbursement equal to the rate at which state officers and state employees are reimbursed for the work-related use of their personal vehicles.
However, the claimant asserts that the mileage reimbursement rate for state employees is not intended to compensate for medically-related mileage costs, and does not consider the unique and higher mileage costs which may be incurred by injured workers, such as himself, whose personal vehicle is more expensive to operate than an unmodified vehicle. Furthermore, the claimant relies upon evidence that the mileage reimbursement rate for state employees is less than the rate allowed by the Internal Revenue Service. He also contends that, unlike workers' compensation recipients, state employees may be able to take an income tax deduction for the difference between their actual mileage expenses and the statutory reimbursement rate. Therefore, the claimant argues that the Director's enactment of a fixed rate for medical related mileage is arbitrary and unreasonable.
Section 8-42-101 does not provide any guidelines concerning a "reasonable" rate for mileage reimbursement, nor does it indicate a minimum reimbursement rate for mileage reimbursement. Therefore, regardless of the merit of the claimant's arguments concerning the inequities which result from the fixed rate adopted by the Director, Rule XVIII(E)(7)(d) is not inconsistent with § 8-42-101. Similarly, the rule does not deny the claimant any statutory benefit by fixing the minimum and maximum mileage reimbursement rate for a four-wheel drive vehicle at 24 cents per mile. Compare Riley Family Trust v. Hood, supra, (medical fee schedule is void to the extent that it purports to restrict manner in which medical expenses provides rather than the fee to be charged). We have no authority to judge the wisdom of the legislative policy allowing the Director to establish a fixed rate for mileage reimbursement under the Act. See Duran v. Industrial Claim Appeals Office, 883 P.2d 477 (Colo. 1994). Consequently, we lack any legal basis to conclude that Rule XVIII(E)(7)(d) is void.
In reaching this conclusion, we also recognize that § 8-43-201 C.R.S. 1997, affords the Director and the ALJ concurrent original jurisdiction to decide matters arising under the Act. However, § 8-42-101(3)(a)(I) clearly vests the Director with exclusive jurisdiction to establish the rate at which all mileage reimbursement shall be compensated. Further, the principles of statutory construction provide that, in the event of irreconcilable conflict between a general and specific statute on the same subject matter, the specific statute prevails. See section 2-4-205 C.R.S. 1997. Therefore, we reject the claimant's contention that Rule XVIII(E)(7)(d) violates an ALJ's jurisdiction to decide the rate at which claimants should be paid for medically-related mileage expenses.
Nevertheless, the claimant argues that the fixed fee established in Rule XVIII(E)(7)(d), is internally inconsistent because the first sentence of the rule indicates that the injured worker is entitled to "reasonable and necessary mileage expenses for travel to and from medical appointments." The claimant reasons that the limitation of 24 cents per mile is inconsistent with reasonable mileage expenses.
We read the first sentence as merely mirroring the legal basis for ordering an insurer to pay mileage at the rate established by the Rule. Therefore, we do not consider the rule to be internally inconsistent.
Lastly, the claimant argues that Rule XVIII(E)(7)(d) violates equal protection guarantees of the United States and Colorado constitutions. However, the parties recognize that we lack jurisdiction to resolve this argument. See Celebrity Custom Builders v. Industrial Claim Appeals Office, 916 P.2d 539 (Colo.App. 1995).
IT IS THEREFORE ORDERED that the ALJ's order dated May 16, 1997, is set aside insofar as it denies reimbursement for the rental cost of a U-Haul trailer, and the purchase of towing equipment, and the matter is remanded to the ALJ for the entry of a new order on these issues consistent with the views expressed herein.
IT IS FURTHER ORDERED that the ALJ's order is otherwise affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ David Cain
___________________________________ Kathy E. DeanNOTICE 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. 1997.
Copies of this decision were mailed October 21, 1997 to the following parties:
Howard Mitchell, 5160 County Road 116, Hesperus, CO 81326
Valley Welding, Inc., 545 Turner Dr., Ste. 1, Durango, CO 81301-7918
Colorado Compensation Insurance Authority, Attn: Laurie A. Schoder, Esq. (Interagency Mail)
Kendra Oyen, Esq., 744 Horizon Court, Ste. 360, Grand Junction, CO 81506 (For the Respondents)
Robert C. Dawes. Esq., 572 E. Third Ave., Durango, CO 81301 (For the Claimant)
BY: _______________________