Opinion
W.C. No. 3-896-179
July 21, 1995
FINAL ORDER
The respondents seek review of an order of Chief Administrative Law Judge Felter (ALJ) dated January 9, 1995. The respondents contend that the ALJ erred in awarding medical benefits in the form of housekeeping services. We agree, and therefore, reverse.
The relevant facts are undisputed. The claimant became permanently and totally disabled effective May 15, 1990. In a report dated May 7, 1990, Dr. Strickland recommended that the claimant receive "ongoing assistance in terms of helping her with her housekeeping, including vacuuming, and the more strenuous work related duties involved with home health care services." Thereafter, the respondents began providing home health care services in the form of housecleaning. In April 1993, the respondents notified the claimant that effective June 30, 1993, housecleaning services would no longer be provided.
The ALJ determined that the claimant continues to need home health care services in the form of housecleaning. Therefore, the ALJ ordered the respondents to reimburse the claimant for the housecleaning services she obtained at her own expense subsequent to June 30, 1993, and required the respondents to provide ongoing housecleaning services. In so doing, the ALJ relied upon the claimant's medical restrictions and was persuaded by the evidence that Dr. Strickland's May 1990 recommendation had not been withdrawn.
Although we reject the respondents' contention that housekeeping services are not a compensable medical benefit, based upon this record, we agree that the ALJ erred in awarding housekeeping services. Therefore, we reverse the ALJ's award.
In the area of medical benefits, employers have been required to provide services which are either medically necessary for the treatment of a claimant's injuries or incidental to obtaining such treatment. Housekeeping services have been held compensable if they are central to the claimant's physical health and if they are incidental to the claimant's receipt of medically necessary attendant care services. Atencio v. Quality Care, Inc., 791 P.2d 7 (Colo.App. 1990). Further, in Country Squire Kennels v. Industrial Claim Appeals Office, 899 P.2d 362 (Colo.App. No. 94CA1271, June 15, 1995), the Court of Appeals stated that medically prescribed housekeeping services are not compensable unless they are "incidental to" the "expense of providing reasonably necessary medical, nursing or attendant care services." In this context, the County Squire Kennels court stated that the term "incidental to" means that the housekeeping must "enable the claimant to obtain medical care or treatment or, alternatively, must be relatively minor in comparison to the medical care and treatment." Consequently, housekeeping services have been denied under circumstances where the claimant is not receiving medically necessary attendant care. Valdez v. Gas Stop, 857 P.2d 544 (Colo.App. 1993); Lockwood v. Industrial Claim Appeals Office (Colo.App. 94CA0220, September 1, 1994) cert. denied April 10, 1995 (not selected for publication).
Here, the claimant does not contend that housekeeping services are "incidental" to her medical care in that they enable her to obtain necessary treatment. Tr. pp. 13, 15-17. The claimant also concedes that she did not require, nor was she receiving medically prescribed attendant care services at the time of the hearing. Tr. pp. 18. Under these circumstances, the housekeeping services sought by the claimant were not "incidental to" attendant care services, and thus, not compensable.
The claimant contends that even if she is not entitled to "ongoing" housekeeping services, she is entitled to reimbursement for the housekeeping expenses she incurred between June 30, 1993 and January 9, 1995. In support, the claimant relies upon Hargett v. Director, Division of Labor, 854 P.2d 1316 (Colo.App. 1992), and argues that previously authorized housekeeping services cannot be unilaterally terminated. We disagree.
An admission of liability for medical benefits is not an admission that all medical treatment thereafter received by the claimant is compensable. To the contrary, the respondents remain free to contest the necessity of any particular treatment. Williams v. Industrial Commission, 723 P.2d 749 (Colo.App. 1986).
Furthermore, the claimant's reliance on Hargett v. Director of Division of Labor, supra, is misplaced. Hargett involves a change of medical provider pursuant to the utilization review process currently codified at 8-43-501 C.R.S. (1994 Cum. Supp.). Hargett does not prohibit the unilateral termination of medical benefits. Rather, the Hargett court stated that "previously authorized workers' compensation benefits cannot be terminated without the protections of due process." The Hargett court stated that insofar as a change of provider under the utilization review process results in the termination of a particular medical treatment, due process protections entitle the affected party to an evidentiary hearing. See § 8-43-207 C.R.S. (1994 Cum. Supp.).
Here, the respondents notified the claimant that they contested liability for housekeeping services subsequent to June 30, 1993. The claimant was then entitled to, and was afforded an evidentiary hearing to establish the compensable nature of further housekeeping services. Because we conclude that, as a matter of law, the claimant failed to sustain her burden to prove an entitlement to further housekeeping services, the respondents are not liable for the actual housekeeping expenses the claimant incurred after June 30, 1993.
IT IS THEREFORE ORDERED that the ALJ's order dated January 9, 1995, is reversed, and the respondents are not liable for housekeeping services subsequent to June 30, 1993.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Dona HalseyNOTICE
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. (1994 Cum. Supp.).
Copies of this decision were mailed July 21, 1995 to the following parties:
Josephine Saurini, 11002 Claire Cir., Northglenn, CO 80234
Ice Cream Wagon, Inc., 6801 Colorado Blvd., Commerce City, CO 80022
Vincent M. Balkenbush, Esq. and Lawrence J. Free, Esq., 1199 Bannock St., Denver, CO 80204 (For the Claimant)
Colorado Compensation Insurance Authority, Attn: Douglas A. Thomas, Esq., (Interagency Mail)
BY: _______________________