Opinion
W.C. No. 4-523-663
December 30, 2003
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Henk (ALJ) which awarded the claimant "housekeeping services" as a form of medical benefit. The respondents contend the award is contrary to the law and the evidence. We affirm.
The claimant suffers from complex regional pain syndrome (CRPS), formerly known as reflex sympathetic dystrophy, as a result of an industrial injury. The CRPS causes pain, weakness, and extreme sensitivity to touch in the claimant's left upper extremity. As a result, the claimant has difficulty with any activity requiring the use of her left hand, including grocery shopping, cooking, housecleaning, dressing, and assisting her two small children. The claimant also suffers from depression and anxiety caused by the injury and consequent CRPS.
The claimant's primary treating physician, Dr. Stieg, opined the claimant is essentially a one-handed person and that her condition makes it difficult to perform activities of daily living including cooking, cleaning, and shopping. Further, Dr. Stieg stated that CRPS renders the claimant very susceptible to additional injury and consequent worsening of her condition if she experiences even minor trauma. Consequently, Dr. Stieg testified that providing the claimant with "essential services" which insulate her from potential trauma is medically necessary to prevent aggravation and perpetuation of an already chronic condition. Consequently, Dr. Stieg prescribed essential services, to include assistance with shopping, cooking, and house cleaning activities.
Crediting the testimony of the claimant and Dr. Stieg, the ALJ found the services prescribed by Dr. Stieg are a "necessary part" of the treatment of the claimant's condition and are "medical in nature" because they "have a direct bearing" on the claimant's condition and symptoms. Specifically, the services will prevent deterioration of the claimant's condition, assist the claimant in avoiding additional injury, relieve symptoms, and help alleviate the claimant's anxiety and depression.
On review, the respondents first contend the "housekeeping services" prescribed by Dr. Stieg do not constitute "medical treatment" because they do not directly affect the claimant's condition and are not incident to the provision of medically-prescribed attendant care or nursing care services. In support of this proposition, the respondents cite Country Squire Kennels v. Tarshis, 899 P.2d 362 (Colo.App. 1995), and Valdez v. Gas Stop, 857 P.2d 544 (Colo.App. 1993). Based on the facts found by the ALJ, we disagree.
Recently, in McGrath v. Acorn Construction Co., W.C. No. 4-324-369 (July 31, 2003), we discussed the circumstances under which a prescription for "housekeeping expenses" may be considered medical treatment for purposes of § 8-42-101(1)(a), C.R.S. 2003. In McGrath, we set aside an ALJ's conclusion that medically-prescribed "housekeeping services" could not be considered medical treatment because they were "not connected to any medical treatment" such as medical, nursing, or home health care services. The following paragraphs from our order in McGrath are pertinent:
Section 8-42-101(1)(a) provides for "medical treatment" necessary to cure and relieve the effects of the injury. Thus, "medical treatment" involves not only improvement of the claimant's condition, but relief from symptoms including pain. See Holly Nursing Care Center v. Industrial Claim Appeals Office, 992 P.2d 701 (Colo.App. 1999).
The leading and most current case on the issue of when home services may be considered "medical" in nature is Bellone v. Industrial Claim Appeals Office, 940 P.2d 1116 (Colo.App. 1997). In Bellone, the court held that child care services prescribed by a physician were "medical in nature" because they allowed the claimant to obtain rest and reduce the likelihood of injury-related fatigue and seizures. The court stated the following:
The child care services here were "medical" in nature because they relieved the symptoms and effects of the injury and were directly associated with claimant's physical needs. Further, they were "incidental" to medical treatment because the services were provided as part of an overall home health care program designed to treat the claimant's condition. Id. at 1118.
The court has liberally applied the Bellone holding in subsequent cases involving "housekeeping" expenses. In Jacobs v. Ed Bozarth Chevrolet Co., W.C. No. 4-222-373 (June 26, 1997), we upheld an ALJ's denial of services to a claimant who sustained head and back injuries which caused headaches, photophobia and vertigo. In Jacobs, the treating physician prescribed "essential household services" to include laundry, cleaning of bathrooms, and making beds. Relying on such cases a Country Squire Kennels v. Tarshis, 899 P.2d 362 (Colo.App. 1995), and Valdez v. Gas Stop, 857 P.2d 544 (Colo.App. 1993), we concluded the services were not compensable because they were not "part of medically prescribed home health care services, and incident to the provision of such services." However, the court set aside our order denying the "housekeeping services," stating that we "did not have the benefit of Bellone v. Industrial Claim Appeals Office, supra, which took a less restrictive view of when reimbursement for home services analogous to those at issue here could be awarded." Jacobs v. Ed Bozarth Chevrolet, Inc. (Colo.App. No. 97CA1188, February 12, 1998) (not selected for publication). The matter was remanded for reconsideration in light of Bellone.
Similarly, in Kilwein v. Joseph Hanlin D.D.S., W.C. No. 3-989-542 (May 6, 1997), we set aside an award of medically-prescribed housekeeping services to a claimant suffering from four- extremity Reflex Sympathetic Dystrophy. A treating physician opined the claimant would deteriorate if she performed housekeeping and the claimant's "energy level" would improve if she received the services. We held the services were not medical in nature because they were not directly associated with the claimant's physical needs, and not incidental to the provision of medically necessary attendant care services. In Kilwein v. Industrial Claim Appeals Office, (Colo.App. No. 97CA0915, April 30, 1998) (Kapelke, J. dissenting) (not selected for publication), the court held the question of whether the services were medically necessary was a question of fact, and the ALJ's finding that the services would prevent deterioration rendered them medical in nature and incidental to medical treatment. The majority distinguished Country Squire Kennels v. Tarshis, supra, on the grounds that in Tarshis there "was no medical prescription for the services and the stated reason for the need was to relieve aggravation of the claimant's condition, rather than being part of treatment to prevent deterioration."
Thus, we disagree with the ALJ's legal conclusion that "housekeeping services" cannot be classified as "medical" or "home health care services." Rather, the question of whether "housekeeping services" are medical in nature is a question of fact to be determined by the ALJ. Atencio v. Quality Care, Inc., 791 P.2d 7 (Colo.App. 1990). In light of Bellone and the cases discussed above, we conclude the Court of Appeals has adopted a "less restrictive" view of when housekeeping services may be awarded as a medical benefit than is reflected in the Tarshis and Gas Stop cases. Admittedly, however, the court's position on this issue is difficult to discern and, in our opinion, has led to disparate if not conflicting results. See Kuziel v. Pet Fair, Inc., 931 P.2d 521 (Colo.App. 1996).
Applying these principles here, we disagree with the respondents' contention that the ALJ erred as a matter of law in concluding that the housekeeping expenses prescribed by Dr. Stieg may be considered a medical benefit. In particular, Dr. Stieg emphasized that protecting the claimant from trauma to her injured extremity is particularly important because such insults may lead not only to an increase in symptoms, but a worsening of the condition itself. Indeed, there was evidence the claimant had already experienced several accidents and injuries resulting from attempts to use her left upper extremity in the course of household activities. Under these circumstances, the housekeeping services may be viewed as part of the claimant's overall treatment designed to prevent deterioration of her condition.
Although the respondents assert that prevention of aggravation is not enough to render housekeeping services compensable, Bellone itself suggests the contrary. In Bellone, the child care services were prescribed to allow the claimant to rest. Rest in turn had the beneficial effect of decreasing the claimant's "susceptibility to fatigue, depression and seizures." Thus, in the Bellone court's opinion, reducing the "susceptibility" to future symptoms rendered the child care services medical in nature because the services relieved the "symptoms and effects of the injury and were directly associated with the claimant's physical needs." 940 P.2d at 1118.
Moreover, there is evidence from which the ALJ reasonably inferred that the provision of the housekeeping services will relieve some of the claimant's depression and anxiety. The claimant's psychiatrist testified the claimant is depressed and anxious because of pain associated with CRPS and because of the prospect for future deterioration of that condition. The psychiatrist further testified the claimant needs help because of her inability to use her arm. (Kapelovitz Depo. Pp. 5-7, 16-18). The claimant testified that she is "very anxious about doing things" and that the prescribed services would "help better than nothing." (Tr. P. 32). It may logically be inferred from this evidence that the provision of housekeeping services will reduce the claimant's anxiety and depression by limiting the possibility of additional injury and deterioration of the CRPS.
It follows from this discussion that we reject the respondents' contention that the ALJ's order is not supported by substantial evidence in the record. The ALJ resolved the pertinent conflicts in the evidence in the claimant's favor, and drew plausible inferences from the record. Consequently, we may not interfere with the ALJ's findings. Section 8-43-301(8), C.R.S. 2003. It is true that some evidence in the record might support a contrary conclusion, but that affords no basis for relief on appeal. Wilson v. Industrial Claim Appeals Office, ___ P.3d ___ (Colo.App. No. 02CA2140, August 14, 2003).
IT IS THEREFORE ORDERED that the ALJ's order dated July 2, 2003, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Bill WhitacreNOTICE
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, Colorado 80203, by filing a Petition to Review with the Court, within twenty (20) days after the date this Order was mailed, pursuant to § 8-43-301(10) and § 8-43-307, C.R.S. 2003. 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 order were mailed to the parties at the addresses shown below on December 30, 2003 by A. Hurtado.
Nancy Simon, 9450 E. Lake Circle, Greenwood Village, CO 80111
Neiman Marcus, 3030 E. 1st Ave., Denver, CO 80206
Gina Brewton, Liberty Mutual Insurance Company, P. O. Box 168208, Irving, TX 75016
Steven H. Gurwin, Esq., 3515 S. Tamarac Dr., #200, Denver, CO 80237 (For Claimant)
Michelle L. Prince, Esq., 1120 Lincoln St., #1606, Denver, CO 80203 (For Respondents)