Opinion
W.C. No. 4-347-725
January 31, 2003
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Harr (ALJ) dated June 18, 2002. We affirm.
In 1997, the claimant suffered a work-related back injury. The respondents admitted liability for temporary total disability benefits commencing July 18, 1997 based on an average weekly wage of $360 [$9 per hour x 40 hours a week]. The ALJ found the evidence was speculative the claimant would have received raises up to $12 per hour had she remained employed with the employer. Therefore, the ALJ concluded the claimant failed to prove her average weekly wage was not fairly computed by application of § 8-42-102(2)(d), C.R.S. 2002 [hourly rate multiplied by the number of hours in a day the claimant worked x number of days worked per week].
The claimant was conservatively treated for the industrial injury. On January 21, 1998, Dr. Gerber placed the claimant at maximum medical improvement (MMI) with 13 percent permanent impairment to the whole person. The respondents filed a Final Admission of Liability which admitted liability for medical impairment benefits consistent with Dr. Gerber's rating. The claimant objected and requested a Division-sponsored independent medical examination (DIME). The DIME physician, Dr. Harrington, opined the claimant was not at MMI and recommended additional treatment. After additional treatment and further examination, Dr. Kleiner placed the claimant at MMI and referred the claimant to Dr. Kleen for an impairment rating. On July 7, 2000, Dr. Kleen assigned a 29 percent whole person impairment rating.
Upon receipt of Dr. Kleen's rating, and pursuant to the Rules of Procedure, Part IV(N)(7), Code Colo. Reg. 1101-03, the respondents requested a follow-up DIME by Dr. Harrington. Dr. Harrington agreed the claimant reached MMI and assigned permanent medical impairment of 19 percent of the whole person. The respondents filed a Final Admission of Liability for permanent medical impairment benefits based on Dr. Harrington's 19 percent rating and future medical benefits as provided by Grover v. Industrial Commission, 759 P.2d 705 (Colo. 1988).
On February 22, 2001, Dr. Kleiner rated the claimant's impairment as 32 percent of the whole person. The ALJ found that because Dr. Kleen was authorized to assign a medical impairment rating and the respondents had already requested that Dr. Harrington conduct a DIME review of Dr. Kleen's rating, the respondents' receipt of Dr. Kleiner's rating did not require any action under Rule IV(N)(5), which provides that the insurer must file an admission of liability consistent with the physician's rating or request a DIME within twenty days of receipt of a determination of medical impairment. Therefore, the ALJ refused to impose penalties against the respondents for failing to file a final admission or request a DIME upon receipt of Dr. Kleiner's February 22 impairment rating.
The ALJ further found the DIME physician's rating was uncontested. Therefore, the ALJ denied medical impairment benefits based on Dr. Kleiner's 32 percent rating.
After MMI Dr. Kleiner continued to prescribe medications to treat the injury. The ALJ found Dr. Kleimer's testimony and the prescription medications reasonable and necessary to maintain the claimant at MMI. Dr. Kleiner also prescribed housekeeping services to decrease the claimant's overall fatigue from work, and other activities of daily living. However, the ALJ found the claimant failed to prove the services prescribed by Dr. Kleiner either enabled the claimant to obtain medical treatment or are concomitant to medical care. Therefore, the ALJ denied the request for medical benefits in the form of housekeeping services.
Finally, the ALJ determined the claimant failed to prove a worsening of her condition between July 7 and February 22, 2001. Therefore, the ALJ denied the claimant's request for additional disability benefits based on a change of condition. The claimant timely filed a Petition to Review.
The Petition to Review contains general allegations of error. See § 8-43-301(8), C.R.S. 2002. The claimant also contends the ALJ's evidentiary ruling resulted in the admission and exclusion of evidence in a manner which adversely impacted substantial rights of the claimant. In addition, the claimant contends that because the respondents conceded her entitlement to medical benefits after MMI and failed to refute Dr. Kleiner's prescription for essential services, the ALJ erroneously denied the request for housekeeping services. Further the claimant contends that the respondents' failure to take a position on Dr. Kleiner's February 22 medical impairment rating supports the imposition of penalties and compels an award of permanent partial disability benefits based on 32 percent whole person impairment. However, the claimant did not file a brief in support of the Petition to Review. Consequently, the effectiveness of our review is limited. See § 8-43-301(4), C.R.S. 2002 ; Ortiz v. Industrial Commission, 734 P.2d 642 (Colo.App. 1986).
The claimant's Designation of Record includes the complete files of the Division or Administrative Hearings and Division of Workers' Compensation. The record transmitted to us on appeal apparently does not include the complete Division of Workers' Compensation file. However, our review is limited to the evidentiary record before the ALJ, and there is no evidence in the record which tends to suggest the claimant requested the ALJ to consider the entire Division of Workers' Compensation file as part of the evidentiary record for the hearing. See City of Boulder v. Dinsmore, 902 P.2d 925 (Colo.App. 1995); Rules of Procedure, Part VIII(A)(6), 7 Code Colo. Reg. 1101-3 at 22. Consequently, we have not obtained or considered the Division of Workers' Compensation file, but restricted our review to the record made at the hearing.
Under § 8-43-301(8), we are precluded from disturbing the ALJ's order unless the ALJ's findings of fact are insufficient to permit appellate review, the ALJ has not resolved conflicts in the evidence, the record does not support the ALJ's findings, the findings do not support the order, or the order is not supported by the applicable law.
We have reviewed the record and the ALJ's findings of fact. The ALJ's findings are sufficient to permit appellate review, and the findings indicate that the ALJ resolved conflicts in the evidence based upon his credibility determinations. See Riddle v. Ampex Corp., 839 P.2d 489 (Colo.App. 1992). Further, the ALJ's findings are supported by substantial, albeit conflicting, evidence in the record and, consequently, the findings must be upheld on review. Delta Drywall v. Industrial Claim Appeals Office, 868 P.2d 1155 (Colo.App. 1993).
Moreover, the findings, support the ALJ's conclusions of law, and the conclusions are consistent with the applicable law. Housekeeping services are not a compensable medical benefit unless the services are "incidental" to the expense of providing reasonable and necessary medical, nursing or attendant care . Country Squire Kennels v. Industrial Claim Appeals Office, 899 P.2d 362 (Colo.App. 1995). In Country Squire Kennels the court concluded that the term "incidental to" requires proof that housekeeping services "enable the claimant to obtain medical care or treatment" or are a "minor concomitant" to providing medically necessary treatment. The determination of whether a particular service is incidental to the expense of providing reasonable and necessary treatment is a question of fact for the ALJ. See Bellone v. Industrial Claim Appeals Office, 940 P.2d 1116 (Colo.App. 1997); Atencio v. Quality Care, Inc., 791 P.2d 7 (Colo.App. 1990). Consequently, we may not disturb the ALJ's determinations, where as here, the record supports the ALJ's determination that the claimant failed to sustain her burden to prove entitlement to housekeeping services.
Further, the fact the respondents filed a general admission for Grover-type medical benefits does not render them liable for all prescribed treatment. To the contrary, the respondents remained free to contest the reasonableness of any particular treatment and require the claimant to prove her entitlement to housekeeping services. Snyder v. Industrial Claim Appeals Office, 942 P.2d 1337 (Colo.App. 1997).
Next, nothing in Rule IV(N)(5) requires respondents to file multiple admissions or request multiple DIME's where there are successive medical impairment ratings for the same condition. To the contrary, Rule XIV(L)(5), limits the parties to one DIME per case, unless otherwise directed by written agreement of the parties, an order of the ALJ or a request by the original DIME physician. An exception exists where the DIME physician initially determines the claimant is not at MMI. In these circumstances, the DIME shall conduct a "follow-up DIME. See Rule XIV(L)(7). Moreover, where a DIME has been requested, Rule IV(N)(7) provides that the respondents are not required to file an amended admission until receipt of a DIME, or an order of the ALJ. Consequently, the ALJ did not err in finding that the claimant failed to prove the respondents' violated Rule IV(N)(5).
IT IS THEREFORE ORDERED that the ALJ's order dated June 18, 2002, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________
David Cain
____________________________________
Kathy E. Dean
NOTICE
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, within twenty (20) days after the date this Order is mailed, pursuant to § 8-43-301(10) and § 8-43-307, C.R.S. 2002. The appealing party must serve a copy of the petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed __________January 31, 2003 ____________to the following parties:
Vera Sauer, 9932 N. Tammy Ln., Parker, CO 80134
Metro Copier Service, Inc., 5736 S. Lisbon Way, Aurora, CO 80015
Legal Department, Pinnacol Assurance — Interagency Mail
Chris L. Ingold, Esq., 501 S. Cherry St., #500, Denver, CO 80246 (For Claimant)
Thomas M. Stern, Esq., 600 17th St., #1600N, Denver, CO 80202 (For Respondents)
BY: __________A. Hurtado__________