Opinion
W.C. No. 3-116-204
August 11, 1997
FINAL ORDER
The respondents seek review of a final order of Administrative Law Judge Martinez (ALJ), which ordered them to pay for the claimant's "assisted living" arrangement. We affirm.
In 1994, the claimant sustained a back injury which necessitated the performance of a cervical discectomy and fusion at C5-6. Subsequent to the March 1996 surgery, the claimant experienced spasticity in both upper extremities and both lower extremities. As a result, he frequently uses a wheeled walker to ambulate, and has difficulty with bathing, toilet transfers, dressing and cooking.
In September 1996, the claimant's treating physician prescribed an "assisted living" arrangement for the claimant. Apparently, this meant that the claimant should move out of his trailer and to a live-in facility where he would receive assistance with many activities of daily living. In a note dated November 21, 1996, the physician explained that the claimant was having a great deal of difficulty with these activities, and the claimant's spouse "is 60 and is really unable to care for him."
At hearing, the respondents produced the testimony of an occupational therapist who agreed that the claimant needs assistance with some activities including bathing and dressing. However, the therapist opined that the claimant is capable of living in his trailer and does not need an assisted living arrangement. The treating physician disputed the therapist's testimony, and stated that "home visits" are generally more expensive than assisted living, and "sometimes the people that you hire don't always come." (Tr. p. 12).
In January 1997, the claimant moved out of his trailer and into an assisted living arrangement at Grand Villa. In this location, the claimant shares a room with another person. He is provided with three meals a day, assistance with bathing, getting in and out of bed, and assistance with transportation. The cost of the room is $1329 per month, including a $14 cable TV charge. The occupational therapist visited the claimant at Grand Villa and opined that he appears stronger than when she visited him in his trailer.
Considering the evidence as a whole, and particularly the testimony of the treating physician, the ALJ determined that the assisted living program at Grand Villa is reasonably needed to cure and relieve the claimant from the effects of the injury. The ALJ stated that the arrangement is "reasonable and necessary and incidental to the expense of providing medical treatment to the claimant." The ALJ also found that the assisted living arrangement "is central to the claimant's personal care."
On review, the respondents contend that the ALJ erred in determining that the assisted living arrangement constitutes a reasonable and necessary medical expense. The respondents do not dispute that the claimant "requires some types of assistance to meet his physical needs, including help with bathing, cooking, getting up and down, and transportation." (Respondents' Brief, p. 8) However, the respondents assert that the "situs" or location of this assistance bears no direct relationship to the claimant's medical treatment, and therefore, the assisted living expenses are not compensable. We are not persuaded.
Section 8-42-101(1)(a), C.R.S. (1996 Cum. Supp.), requires that the employer provide medical and nursing treatment which is reasonably needed to cure and relieve the effects of the injury. In order to be "medical" in nature, a service must treat or alleviate the effects of the industrial injury and be related to the claimant's physical condition or needs. Bellone v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. 96CA2079, June 26, 1997); Hillen v. Tool King, 851 P.2d 289 (Colo.App. 1993).
In Atencio v. Quality Care, Inc., 791 P.2d 7 (Colo.App. 1990), the Court of Appeals held that the evidence supported the conclusion that "housekeeping and attendant care services" constituted compensable medical benefits under the "medical necessity test." In that case, the claimant was severely restricted by the injury, and could not "bathe, dress, perform home health care or sanitary functions, nor perform any household chores (such as cooking) without assistance." Id., at 9.
The court has also upheld an order requiring respondents to reimburse a claimant's spouse for home health care services provided to the claimant. In Edward Kraemer Sons, Inc. v. Downey, 852 P.2d 1286 (Colo.App. 1992), the claimant's spouse provided "home health care" from 4:00 p.m. until 7:00 a.m. The evidence showed that the claimant needed assistance with eating, bathing, and preparation for bed. See also, Suetrack USA v. Industrial Claim Appeals Office, 902 P.2d 854 (Colo.App. 1995).
Provided that a service qualifies as "medical" in nature, the courts have repeatedly held that the issue of whether a particular service is reasonable and necessary is one of fact for determination by the ALJ. Bellone v. Industrial Claim Appeals Office, supra; Edward Kraemer Sons, Inc. v. Downey, supra. Since this issue is factual in nature, we must uphold the ALJ's order if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. (1996 Cum. Supp.). In applying this test, we are required to defer to the ALJ's resolution of conflicts in the evidence, his credibility determinations, and the plausible inferences which he drew from the evidence. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
Here, the respondents have conceded that the claimant needs "assistance" with daily activities, and this assistance is either medical in nature, or incidental to the provision of medical treatment. Having conceded that the claimant needs medical "assistance," the question of whether the particular services provided by Grand Villa are reasonable and necessary is one of fact for the ALJ. Cf. City and County of Denver School District No. 1 v. Industrial Commission, 682 P.2d 513 (Colo.App. 1984) (it was for the ALJ to determine whether installation of a home hot tub was a reasonable and necessary expense where claimant's work hours made it impossible for him to attend a health spa). In fact, § 8-42-101(1)(a) does not contain any express limitation concerning the "location" at which reasonable and necessary treatment must be provided. See City of Durango v. Dunagan, ___ P.2d ___ (Colo.App. No. 96CA0973, May 1, 1997).
The respondents' argument notwithstanding, substantial evidence supports the ALJ's determination that the "assisted living" arrangement at Grand Villa is reasonable and necessary to cure and relieve the claimant's injury. Much like the situation in Atencio, the medical evidence establishes that the claimant has severe physical restrictions which preclude or hamper his ability to perform essential tasks of daily living, including preparation of food and maintaining personal hygiene. Moreover, the record establishes that the claimant receives inadequate assistance in his home, and that his spouse is unable to provide the needed care. Finally, the claimant's treating physician has prescribed assisted care, and opined that it is reasonable and necessary from both a financial and medical point of view.
It is true that some evidence in the record would support the conclusion that the claimant could receive adequate care in his trailer. However, the mere existence of a conflict in the evidence affords no basis for relief on appeal. May D F v. Industrial Claim Appeals Office, 752 P.2d 589 (Colo.App. 1988). Further, the treating physician testified concerning his "experience" with home health care, and therefore, his testimony was not so speculative that it is legally insufficient to support the ALJ's order.
IT IS THEREFORE ORDERED that the ALJ's order dated February 18, 1997, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Bill WhitacreNOTICE This Order is final unless an action to modify or vacate the 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, 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 the Order was mailed, pursuant to §§ 8-43-301(10) and 307, C. R. S. (1996 Cum. Supp.).
Copies of this decision were mailed August 11, 1997 to the following parties:
Dennis L. Whelan, Grand Villa, 1501 Patterson Rd., Rm. A-117, Grand Junction, CO 81506
Western Co. of North America, 2403 River Rd., Grand Junction, CO 81505-1309
National Union Fire Ins. of Pit., AIG Claim Services, P.O. Box 32130, Phoenix, AZ 85064
Clyde E. Hook, Esq. and Harvey D. Flewelling, Esq., 5353 W. Dartmouth Ave., Ste. 400, Denver, CO 80227 (For the Respondents)
Gudrun Rice, Esq., P.O. Box 3207, Grand Junction, CO 81502 (For the Claimant)
By: _______________________________