Opinion
W.C. No. 4-517-537.
March 3, 2010.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Mottram (ALJ) dated September 9, 2009, that denied the claimant's request for home health care services. We affirm.
We initially note that this matter has been before us previously in Parker v. Iowa Tanklines, Inc. W.C. No. 4-517-537 (May 31, 2006), aff'd Parker v. Industrial Claim Appeals Office No. No. 06CA1259. (Colo. App. Sept. 27, 2007) (not selected for publication). There the ALJ denied the claimant's requests for twenty-four hour supervision or attendant care ("essential services"), a hot tub and compensation for her husband's time away from work to take the claimant to medical appointments. We affirmed the ALJ's order and our order was affirmed by the Colorado Court of Appeals.
Here, we note that the claimant sustained an admitted industrial injury on September 6, 2001 when she was involved in a motor vehicle accident. The claimant was diagnosed as suffering from complex regional pain syndrome (CRPS), TMJ, and a labral tear of her right shoulder. The claimant reached maximum medical improvement and came under the care of Dr. Lynn Parry for maintenance medical treatment. Dr. Parry testified that the claimant needed help with various daily activities, including vacuuming, sweeping, mopping, cleaning, and meal preparation. Dr. Parry also testified that the claimant needed assistance with keeping her medications straight, as the claimant got confused because of her pain.
In denying the claimant's request for an award of home health care services the ALJ made a number of findings of fact, including the following. The ALJ found that the healthcare services were not reasonably necessary to allow the claimant to obtain medical treatment. The claimant had continued to be able to receive medical treatment from Dr. Parry and there was no credible evidence in the record that the claimant's injuries had affected her ability to obtain medical care. While Dr. Parry noted that the claimant could use assistance in separating her medication as she had become forgetful, there was no credible evidence of the claimant having difficulty with her medications. The ALJ also found that the claimant had failed to show that housekeeping services were necessary to cure and relieve the claimant from the effects of her industrial injury.
Section 8-42-101(1)(a), C.R.S. 2009, provides that respondents are liable for authorized medical treatment that is reasonable and necessary to cure or relieve the effects of the industrial injury. Snyder v. Industrial Claim Appeals Office, 942 P.2d 1337 (Colo. App. 1997). Home health care services fall within this provision. See Suetrack USA v. Industrial Claim Appeals Office, 902 P.2d 854, 856 (Colo. App. 1995). The determination whether treatment or services provided under § 8-42-101 are reasonable and necessary is one of fact for resolution by the ALJ. See City of Durango v. Dunagan 939 P.2d 496 (Colo. App. 1997); Wal-Mart Stores, Inc. v. Industrial Claims Office, 989 P.2d 251 (Colo. App. 1999).
We must uphold the ALJ's factual determinations if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2009. Substantial evidence is that quantum of probative evidence, which a rational fact finder would accept as adequate to support a conclusion without regard to the existence of conflicting evidence. Metro Moving Storage Co. v. Gussert, 914 P.2d 411, 415 (Colo. App. 1995).
In our view the record contains substantial evidence supporting the ALJ's conclusion that the requested housekeeping services were not reasonable and necessary to cure or relieve the effects of the industrial injury. Dr. Beatty expressed the opinion that the claimant was not in need of home health services. Exhibit C at 751. Dr. Beatty testified that the claimant did not need assistance with hygiene or any kind of activities. Beatty Depo. at 6. To the contrary, Dr. Beatty testified that it was very important that the claimant perform these tasks because when she stopped doing these things, she would decompensate until she finally became bedridden. Beatty Depo. at 6.
Home health care services in the nature of "attendant care," if reasonably needed to cure or relieve the effects of the industrial injury, have been found to be compensable. Atencio v. Quality Care, Inc., 791 P.2d 7 (Colo. App. 1990). Such services may encompass assisting the claimant with activities of daily living, including matters of personal hygiene. Suetrack v. Industrial Claim Appeals Office, 902 P.2d 854 (Colo. App. 1995). However, in Kuziel v. Pet Fair, Inc. 931 P.2d 521 (Colo. App. 1996) the court cited Industrial Commission v. Pacific Employers Insurance Co., 120 Colo. 373, 209 P.2d 908 (1949) and refused to extend benefits to cover the payment of expenses incurred for household care or maintenance, child, spousal, or pet care, or other routine living expenses that are paid or incurred during a claimant's hospitalization or other medical treatment.
Here, the ALJ relied on Country Squire Kennels v. Tarshis 899 P.2d 362 (Colo. App. 1995). In Tarshis the court held that a claimant who has suffered an admitted work-related injury may not receive compensation for medically prescribed housecleaning services if those services are not "incidental to" the expense of providing reasonably necessary medical, nursing, or attendant care treatment services. The Tarshis court summarized the existing case law as determining that for expenses incurred for housekeeping services to be compensable, such services must enable the claimant to obtain medical care or treatment or, alternatively, must be relatively minor in comparison to the medical care and treatment.
The claimant contends that the ALJ erred in applying the legal test set forth in Tarshis, arguing that the broader and more comprehensive legal standard set forth in Bellone v. Industrial Claim Appeals Office 940 P.2d 1116 (Colo. App. 1997) is applicable.
In Bellone, a physician had prescribed assisted child-care to allow the claimant to attend medical appointments and to rest during the day. The respondents stipulated that they would pay any reasonable and necessary child-care expenses incurred to allow the claimant to attend authorized medical appointments, but refused to pay such expenses for the purpose of allowing the claimant to rest or engage in other non-medical appointment activities. In Bellone the ALJ found that the prescribed child care services were medically necessary to cure and relieve the claimant from the effects of her work-related injury and further found that she was entitled to reimbursement for child care of up to 20 hours per week. The Panel, relying on Kuziel v. Pet Fair, Inc. supra, reversed the ALJ's order awarding child care services, determining that the child care services the claimant requested to allow her to rest were neither medical in nature nor incidental to obtaining necessary medical treatment. The Bellone court found that the Panel had misread Kuziel as reflecting the court's policy to disallow routine living expenses, including child care, even if such expenses assist the claimant in obtaining or receiving medial treatment. The Bellone court found that the child care services were "medical" in nature because they relieved the symptoms and effects of the injury and were directly associated with the claimant's physical needs. Further, the Bellone court found that the child care services were "incidental" to medical treatment because the services were provided as part of an overall home healthcare program designed to treat the claimant's condition. The Bellone court determined that because there was supporting medical testimony to indicate that the child-care services were to relieve claimant of the effects of her injury, child-care services were compensable to the extent necessary to allow claimant to attend medical appointments and to allow her time to rest.
We have previously observed that there is some tension between the holdings in Tarshis and Bellone. See McGrath v. Acorn Construction Co., W.C. No. 4-324-369 (July 31, 2003) and Simon v. Neiman Marcus W.C. No. 4-523-663 (December 30, 2003). In McGrath we concluded that the court had adopted a "less restrictive" view of when housekeeping services may be awarded in Bellone than in Tarshis. We reiterated that view in Simon.
Nevertheless, here it is unnecessary for us to consider whether the ALJ erred in applying Tarshis. In our opinion the ALJ's order is consistent with both Tarshis and Bellone. We do not read the ALJ's order, as suggested by the claimant, as reaching the legal conclusion that "housekeeping services" cannot be classified as "medical" in nature because such services are not necessary to permit the claimant to obtain medical treatment. Here the ALJ did find that there was no credible evidence that the claimant's injuries had affected her ability to obtain medical care. We acknowledge that this played a role in his denial of the claimant's request for housekeeping services. However the ALJ citing § 8-42-101(1)(a) went on to find that the requested housekeeping services were not reasonable and necessary to cure and relieve the claimant from the effects of her compensable injury. In our view, this is the correct legal standard to apply. Moreover, in light of the Dr. Beatty opinions, the ALJ's determination is supported by substantial evidence in the record and therefore binding. Kroupa v. Industrial Claim Appeals Office, supra; § 8-43-301(8), C.R.S. 2009. Even under the less restrictive standards articulated in Bellone, the ALJ's order is supported by substantial evidence and consistent with the legal standard. Accordingly, we must affirm the order.
IT IS THEREFORE ORDERED that the ALJ's order dated September 9, 2009 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________
Curt Kriksoiun
______________________________
Thomas Schrant
NEVA PARKER, PO BOX 611, CEDAREDGE, CO, 81413 (Claimant).
IOWA TANKLINES, Attn: RICK GEORGE, OMAHA, NE, (Employer).
CAMBRIDGE INTEGRATED SERVICES GROUP INC, Attn: DIANE OLIVER, PHOENIX, AZ, (Insurer).
KILLIAM GUTHRO JENSEN PC, Attn: AMY K EATON FITZPATRICK, ESQ., GRAND JUNCTION, CO, (For Claimant).
TREECE ALFREY MUSAT BOSWORTH PC, Attn: KATHLEEN M FAIRBANKS, ESQ., DENVER, CO, (For Respondents).
A/V TRONICS INC., DENVER, CO, (Other Party 2).