Opinion
W.C. No. 4-389-907.
January 10, 2007.
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Mattoon (ALJ) dated August 9, 2006, that ordered the respondents to provide medical benefits to the claimant in the form of a cell phone and service for medical emergencies. We reverse the award of medical benefits.
The ALJ's pertinent findings of fact are as follows. The claimant is permanently and totally disabled as a result of an admitted industrial injury, which has confined him to a wheelchair. The claimant is unable to walk, although he does drive. When the claimant was released from Craig Hospital the treating physicians recommended that he be provided with a cell phone for medical emergencies. Dr. Tyler issued a prescription for a cell phone for medical emergency needs after the claimant had purchased a phone. The claimant sought reimbursement for the purchase of the cell phone and the payment of monthly phone service. The ALJ found that although the claimant had never had to use his cell phone to call an ambulance, the police, the fire department or 911, there are numerous circumstances in which such a call would be absolutely necessary in an emergency. The most likely circumstance would be an automobile accident or automobile breakdown. Although the claimant is no more likely than anyone else to have an accident or a breakdown, the ability to make such a call could easily become life-saving for the claimant because he is unable to walk to obtain help. The claimant also sometimes uses the cell phone for convenience.
The ALJ found that the ability to call for help in an emergency provides more than simple peace of mind for the claimant. The ALJ further found that the cell phone was associated with the claimant's physical needs in that it would provide the opportunity to survive or avoid serious injury in an emergency due to the effects of his industrial injury. The possibility of an automobile accident or breakdown is not remote. The ALJ concluded that the cell phone and associated service for emergency medical needs is a reasonable, necessary and related medical device.
Initially we note that the respondents objected to consideration of facts not in the record contained in the claimant's brief. We agree that we may not appropriately consider facts not found by the ALJ with record support. Our review is restricted to the record before the ALJ, and the factual assertions made for the first time on appeal by the claimant may not substitute for evidence which is not in the record. See City of Boulder v. Dinsmore, 902 P.2d 925 (Colo.App. 1995); Subsequent Injury Fund v. Gallegos, 746 P. 2d 71 (Colo.App. 1987); Voisinet v. Industrial Claim Appeals Office, 757 P.2d 171 Colo. App. 1988); See Lewis v. Scientific Supply Co. 897 P.2d 905 (Colo.App. 1995).
The respondents appealed the ALJ's order, and contend that a cell phone is not a compensable medical apparatus because it does not cure and relieve the effects of the industrial injury or provide any therapeutic benefit. The respondents argue that the ALJ erred in concluding that a cell phone is a compensable medical apparatus under § 8-42-101(1)(a) because it might make the claimant safer. Respondents' contend that the claimant cannot make such a showing under the holding in Bogue v. SDI Corp., Inc., 931 P.2d 477 (Colo.App. 1996) and Cheyenne County Nursing Home v. Industrial Claim Appeals Office, 892 P.2d 443, (Colo.App. 1995). Also relying upon Atkinson v. Campbell Roofing (W.C. No. 4-206-051 August 9, 1999) the respondents contend that there is no evidence in the record that a cell phone would treat the claimant's paraplegia and the absence of such evidence compels the legal conclusion that the cell phone is not compensable.
The claimant was required to prove that a cell phone is a reasonable and necessary medical apparatus needed to cure or relieve the effects of the injury. Section 8-42-101(1)(a), C.R.S. 2003; Bogue v. SDI Corp., Inc., supra, Lerner v. Wal-Mart Stores, Inc., 865 P.2d 915 (Colo.App. 1993). Generally, determination of whether the claimant has met the burden of proof is a question of fact for determination by the ALJ. Bellone v. Industrial Claim Appeals Office, 940 P.2d 1116 (Colo.App. 1997).
Under § 8-42-101(1)(a), C.R.S. 2006, the respondents are required to provide medical services "as may reasonably be needed" to "cure and relieve" the effects of the industrial injury. See Colorado Compensation Insurance Authority v. Nofio, 886 P.2d 714 (Colo. 1994). Based upon this statute employers have been required to provide services which are either medically necessary for the treatment of a claimant's injuries or incidental to obtaining treatment. Industrial Commission v. Pacific Employers, 120 Colo. 373, 209 P.2d 980 (1949); Sigman Meat Co. v. Industrial Claim Appeals Office, 761 P.2d 265 (Colo.App. 1988) (mileage reimbursement incidental to medical treatment).
For a particular apparatus to be a medical necessity it must provide "therapeutic relief" from the effects of the injury. Cheyenne County Nursing Home, v. Industrial Claim Appeals Office, 892 P.2d 443 (Colo.App. 1995). The Cheyenne County Nursing Home court defined the terms "relieve the effects of the injury" and "therapeutic benefit" narrowly. Under the facts of that case the court denied the request of a wheelchair restricted quadriplegic for a stair glide to obtain access to her basement during dangerous tornado weather. The court concluded that the stair glide provided no therapeutic benefit and that benefits designed to increase the claimant's peace of mind were beyond the scope of the Workers' Compensation Act.
In ABC Disposal Services v. Fortier, 809 P.2d 1071, 1072 (Colo.App. 1990), the court held that a medically prescribed snow blower was not a compensable medical "apparatus" because it did not cure or relieve symptoms of the industrial injury. Rather, it only provided an easier method to perform a household chore. Further, in Hillen v. Tool King, 851 P.2d 289 (Colo.App. 1993), the court denied a request for lawn care services because such services are not medical in nature, even though they were prescribed by an attending physician. The court concluded that lawn care does not cure or relieve the symptoms of the injury and only relieves the rigors of yard work.
Further, relying on Cheyenne County Nursing Home, the court in Bogue v. SDI Corporation, Inc., 931 P.2d 477 (Colo.App. 1996), denied a wheelchair-accessible van to a quadriplegic claimant because the van did not provide therapeutic medical relief from the symptoms of the industrial injury. The Bogue court concluded that avoiding risks associated with the claimant's exposure to inclement weather while waiting for public transportation does not render the specialized van sufficiently related to the claimant's physical condition to be a compensable medical apparatus. Under the facts of that claim, the court also rejected an argument that the van was "incidental" to the claimant's access to medical care. Compare Trigg v. Acoustical Construction Supply, W.C. No. 3-766-426 (September 7, 1994) (wheelchair accessible van incidental to quadriplegic's access to medical treatment).
The determination of whether a particular apparatus provides a therapeutic benefit to the claimant is a question of fact for resolution by the ALJ. Hillen v. Tool King, supra; Edward Kraemer Sons, Inc. v. Downey, 852 P.2d 1286 (Colo.App. 1992). We must uphold the ALJ's factual determinations unless the findings are not supported by evidence in the record. Section 8-43-301(8), C.R.S. 2006.
Dr. Tyler did not prescribe the cell phone for "therapeutic" relief from the effects of the injury. Rather, Dr. Tyler prescribed the cell phone for "medical emergency needs." The record reflects that the claimant had a cell phone for years. Tr. at 5. The claimant testified that he has a home phone which he can use and that he just needs the cell phone if his vehicle breaks down. Tr. at 47 and 37. The claimant admitted that in the year he had never had to use the cell phone because his vehicle broke down to call for roadside assistance. Tr. at 47. The claimant admitted that he has never had to use the phone to call the Fire Department, or emergency services at 911. Tr. at 46.
We acknowledge the ALJ's finding that the ability to call for help in an emergency provides more than simple peace of mind for the claimant and since the possibility of an automobile accident or breakdown is not remote, a cell phone could provide the opportunity to avoid serious injury in an emergency situation. However, in view of the reasoning of Hillen, Fortier, Cheyenne and Borgue the avoidance of this risk does not render a cell phone a medical necessity that is sufficiently connected to the claimant's physical condition. Under these circumstances, the evidence is legally insufficient to support a finding that the prescribed hand controls provide therapeutic relief as that term is defined by Cheyenne County Nursing Home v. Industrial Claim Appeals Office, supra; See Magdaleno v. Kemp company, Inc. W. C. No. 4-247-484 (March 22, 2000) (pneumatic tools not a form of medical benefit; See also Atkinson v. Campbell Roofing (W. C. No. 4-206-051 August 9, 1999) (hand control for claimant's car safer but provide no therapeutic benefit).
The claimant's reliance on Associated Business Products v. Industrial Claim Appeals Office, 126 P.3d 323, (Colo.App. 2005) is misplaced. The issue in Associated Business Products was penalties for not paying cell phone services, and the issue of whether cell phone services are a compensable medical apparatus under § 8-42-101(1)(a) appears not to have been raised.
Finally, we note that it is not clear from the record or from her order that the ALJ and the parties applied the correct legal standard to this case. It is true, of course, that § 8-42-101(1), C.R.S. 2006, requires the employer to provide medical benefits which are reasonable and necessary to cure and relieve the industrial injury. See Snyder v. Industrial Claim Appeals Office, 942 P.2d 1337 (Colo.App. 1997). However, this obligation terminates at maximum medical improvement, and after that point the claimant may only obtain future medical benefits to maintain maximum medical improvement or to prevent a deterioration of his condition. See Grover v. Industrial Commission, 759 P.2d 705, 711 (Colo. 1988). Although it is not certain, it appears from the record that the cell phone should have been analyzed as a Grover-type medical benefit rather than as one designed to cure and relieve the claimant's condition prior to reaching maximum medical improvement. However, we are unable to locate any point in the record at which any party asserted that argument, either at the hearing or on appeal. Accordingly, we have analyzed the case according to the legal principles that all parties appear to have agreed were applicable. See Dalco Industries, Inc. v. Garcia, 867 P.2d 156 (Colo. 1993) (party may not complain of invited error for which the party is responsible); Morgan County Department of Social Services v. J.A.C., 791 P.2d 1157 (Colo.App. 1989) (same). In any event, analyzing this as a Grover medical benefit would not have changed the result.
IT IS THEREFORE ORDERED that the ALJ's order dated August 9, 2006, is reversed insofar as it ordered the respondents to provide a cell phone and services as a form of medical benefit.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________
Curt Kriksciun
______________________________
Thomas Schrant
Randy Robertson, 8122 Horizon Drive, Colorado Springs, CO, Vincam Staff Administrators c/o ADP TotalSource, 10200 Sunset Drive, Miami, FL, Western Guaranty Fund, Michael Kramish, 1720 South Bellaire Street, Suite 408, Denver, CO, Alexander Ricci, William Alexander, Esq., 3055 Austin Bluffs Pkwy, Colorado Springs, CO, (For Claimant)
McElroy, Deutsch, Mulvaney Carpenter, C. Adam Foster, Esq., 1700 Broadway, Suite 1900, Denver, CO, (For Respondents)