Opinion
W.C. No. 4-575-790.
July 21, 2006.
ORDER
The claimant and the respondents both seek review of an order dated January 19, 2006 of Administrative Law Judge Henk (ALJ). We affirm the portion of the order that awarded some but denied other home modification. We also affirm the portion of the order that fixed the rate at which the claimant's wife is to be paid for essential home health care services and the portion of the order that awarded those services to be provided in the future. We dismiss without prejudice the respondents' petition to review the award of attendant care services to the claimant's wife prior to the hearing.
The claimant sustained a serious work-related injury and the respondents admitted liability for permanent total disability and for ongoing medical benefits. The respondents had previously provided modifications to the claimant's bathroom and bedroom, and had constructed wheelchair ramps to permit the claimant easier access to his home. Respondents also provided home health care services from Our Nurses Inc., and paid the claimant's wife $880 per month to provide additional care.
The ALJ found that the claimant's wife and other family members provide reasonable and necessary home health care services. The ALJ concluded that it was reasonable and appropriate to compensate the claimant's wife at the rate of $14 per hour, which is the rate that Our Nurses Inc. pays its home health care aides. The ALJ also concluded that certain additional modifications of the claimant's house were reasonable, necessary and incidental to obtaining medical treatment or therapy. The ALJ concluded that certain other requested modifications were not reasonable and necessary, and consequently denied the claim for those particular modifications.
I.
The claimant argues that the ALJ erred in awarding some but not all of the home modifications he requested. The claimant sought numerous items and modifications to his home as medical treatment under § 8-42-101(1)(a), C.R.S. 2005. However, the ALJ denied the claimant's requests for some modifications. The ALJ noted that home modifications must be reasonable and necessary and incidental to obtaining medically necessary treatment. The ALJ determined that the claimant's request for construction of a new bedroom, enlargement of an exercise room, modifications to the kitchen, automatic door openers to the front and back doors, outdoor access from the back door, lowered windows, architectural renderings, modified closets, paraffin bath, full length mirror, ceiling heater in the bathroom, hand held shower head, shelves for soap and shampoo, and enlargement of the bathroom are not reasonable and necessary and incidental to obtaining medically necessary treatment. The ALJ found the respondents were not responsible for these expenses.
The ALJ ordered the respondents to make bathroom modifications to include a new sink and faucet that are wheelchair accessible. The ALJ ordered the respondents to widen the bathroom door to 30 inches so that the claimant's wheelchair can easily enter without hitting the sides of the chair or door. The ALJ order the respondents to provide for a 45 degree angled tile transition from the floor to the shower and a grab bar in the shower. The respondents were ordered to provide a threshold ramp for the front door. The respondents were ordered to replace the carpet in the living room with smooth flooring. The ALJ ordered the respondents to enlarge the claimant's bedroom to accommodate his bed, exercise table, lift, exercise equipment and two wheelchairs.
Section 8-42-101(1)(a) provides that an insurer must provide such medical treatment, supplies and apparatus "as may reasonably be needed" to cure and relieve the effects of the injury. To be a "medical" apparatus the item must provide treatment or therapeutic relief from the injury. An item may also be "medical" if it is incidental to treatment in the sense that it enables the claimant to obtain medically necessary treatment, or is a minor concomitant of medical treatment. Bogue v. SDI Corp., Inc., 931 P.3d 477 (Colo.App. 1996); Country Squire Kennels v. Tarshis, 899 P.2d 362 (Colo.App. 1995); Cheyenne County Nursing Home v. Industrial Claim Appeals Office, 892 P.2d 443 (Colo.App. 1995). The question of whether a treatment or apparatus is "medical" in nature is ordinarily one of fact for determination by the ALJ. Bellone v. Industrial Claim Appeals Office, 940 P.2d 1116 (Colo.App. 1997). Similarly, the question of whether a particular apparatus is reasonably necessary to treat the claimant's condition is also one of fact. Kroupa v. Industrial Claim Appeals Office, 53 P.3d 1192 (Colo.App. 2002).
Because these matters are factual in nature, we must uphold the ALJ's determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2005. This standard of review requires us to consider the evidence in a light most favorable to the prevailing party, and defer to the ALJ's credibility determinations, resolution of conflicts in the evidence, and the plausible inferences drawn from the record. Wilson v. Industrial Claim Appeals Office, 81 P.3d 1117 (Colo.App. 2003).
The claimant, citing federal social security disability benefit cases, argues that when a physician testifies that certain home modifications are necessary, an ALJ may not substitute her own medical opinion for that of the physician. However, those cases do not set forth the applicable law in the workers' compensation context, nor are we persuaded that they ought to be applicable. Regardless of the state of the medical evidence, it is always the case under the Act that the question of whether a proposed medical expense is reasonable and necessary is one of fact for determination by the ALJ. Kroupa v. Industrial Claim Appeals Office, 53 P.3d 1192 (Colo.App. 2002); Wal-Mart Stores, Inc. v. Industrial Claims Office, 989 P.2d 251 (Colo.App. 1999). We do not find the federal social security cases to provide useful guidance in the present case.
The claimant's arguments notwithstanding, there was conflicting evidence in the record. The claimant had originally entered into an agreement with the insurer for various home modifications. Exhibit A. Tr. 95-98. Dr. Johansen is an attending physician from Craig Hospital. The claimant requested proposed modifications to the bathroom but Dr. Johansen could not say that the kitchen modifications recommended by the claimant's expert in occupational therapy were necessary. Johansen Depo. at. 60. The claimant testified that even without the modifications he was able to get into his kitchen. Tr. 72. The claimant also alleges the ALJ erred regarding proposed modifications to the bathroom. However the ALJ ordered a number of modifications to the bathroom which were incidental to obtaining medical treatment and denied others because the claimant receives home health care services which assist with those activities. The claimant testified that even without the ordered modifications he was able to shave and brush his teeth. Tr. 63.
It is certainly true that the proposed but denied home modifications may have improved the lifestyle of the claimant or provided him with conveniences that would be beneficial to his daily life; however, the ALJ found that they were not necessary or incidental to obtaining medical treatment and therapy. Under these circumstances, we perceive no basis on which to interfere with the ALJ's finding. See Bogue v. SDI Corp., Inc., supra. See also, Cheyenne County Nursing Home, v. Industrial Claim Appeals Office supra, (an apparatus which merely provides an easier method to perform a household chore is not compensable and a stair glide has no therapeutic benefit); Hillen v. Tool King, 851 P.2d 289 (Colo.App. 1993) (lawn service prescribed to relieve rigors of yard work is not a medical benefit); ABC Disposal Services v. Fortier, 809 P.2d 1071, 1072 (Colo.App. 1990) (snow blower is not a compensable medical apparatus).
The ALJ's findings are supported by substantial, albeit conflicting, evidence in the record. Consequently, we are bound by the ALJ's factual determinations that the claimant failed to sustain her burden to prove entitlement to further home modifications beyond those originally agreed to and those additionally awarded by the ALJ. See Cheyenne County Nursing Home, v. Industrial Claim Appeals Office, supra. Under these circumstances, the ALJ's order awarding some, but not all, of the requested home modifications is supported by substantial evidence and by applicable law. We have reviewed the claimant's additional arguments and they do not alter our conclusions.
II.
The claimant also argues that the ALJ erred when she awarded benefits for essential services and home health care services provided by family members, at less than the rate paid to a certified nurse assistant pursuant to the medical fee schedule. We are unpersuaded that the medical fee schedule sets forth mandatory minimum amounts at which services must be compensated.
Workers Compensation Rule of Procedure 16-4, 7 Code Colo. Reg. 1101-3 at 81 provides that: "When services provided to an injured worker fall within the purview of the medical fee schedule, all payers shall use the fee schedule to determine maximum allowable fees." (emphasis added). The fee scheduled amount provided for in Rule 18-6(N)(2) for certified nurse assistants is $31.67 for the first hour and $9.46 for each additional half hour. The ALJ concluded that it was reasonable and appropriate to compensate the family members at the lower rate of $14 per hour, which is the rate that Our Nurses Inc. pays its home health care aides.
Section 8-42-101(3)(a)(I), C.R.S. 2005 authorizes the Director of the Division of Workers' Compensation to "establish a schedule fixing the fees for which all medical, surgical, hospital, dental, nursing and vocational rehabilitation treatment rendered to employees" under the Workers' Compensation Act (Act) is to be compensated. It further provides that no physician or other care provider shall charge more than the fee fixed by such schedule when treating a patient for injuries covered by the Act. Riley Family Trust v. Hood 874 P.2d 503 (Colo.App. 1994). The treatment contemplated by the Act includes all treatment reasonably necessary to cure and relieve the claimant from the effects of the industrial injury. Section 8-42-101(1)(a), C.R.S. 2005; Greager v. Industrial Commission, 701 P.2d 168 (Colo.App. 1985).
We disagree with the claimant's argument that the ALJ was compelled to compensate his wife at the rate set in the fee schedule for certified nurse assistants. It is undisputed that a purpose of the fee schedule is to contain costs. See Riley Family Trust v. Hood 874 P.2d 503, supra (Section 8-42-101(3)(a)(I) authorized the director to establish a fee schedule as a cost containment measure.) Further, one of the overriding purposes of the Act is to provide reasonable and necessary medical treatment to employees who are injured on the job. Given the public policy underlying the enactment of the fee schedule and the Act's purposes, in our view it is not reasonable to interpret the fee schedule as setting forth mandatory minimum amounts that must be paid in each case without consideration of any other factors.
Further, the phrase "all payers shall use the fee schedule to determine maximum allowable fees." is not ambiguous and we have no need to look outside the plain meaning of Rule 16-4. Pena v. Industrial Claim Appeals Office, 117 P.3d 84 (Colo.App., 2004). We are unaware of any authority interpreting the fee schedule as setting forth mandatory minimum amounts that must be paid under all circumstances, nor has the claimant cited any such authority. We perceive no error in the ALJ's determination of the rate of pay to compensate the claimant's wife for home health care services.
Moreover, insofar as the claimant is arguing that the amount ordered paid to the claimant's wife is not reasonable, we disagree. The respondents, of course, are liable for medical treatment which is reasonably necessary to cure and relieve the effects of the industrial injury. Section 8-42-101(1)(a), C.R.S. 2000; Snyder v. Industrial Claim Appeals Office, 942 P.2d 1337 (Colo.App. 1997); Country Squire Kennels v. Tarshis, 899 P.2d 362 (Colo.App. 1995). The determination of whether particular treatment is reasonable and necessary is a question of fact for the ALJ, and her finding may not be disturbed if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2005; City and County of Denver School District 1 v. Industrial Commission, 682 P.2d 513 (Colo.App. 1984).
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. Durocher v. Industrial Claim Appeals Office, 905 P.2d 4 (Colo.App. 1995); Dow Chemical Co. v. Industrial Claim Appeals Office, 843 P.2d 122 (Colo.App. 1992) (ALJ free to credit one medical opinion to the exclusion of a contrary medical opinion). In applying the substantial evidence test, we may not substitute our judgment for that of the ALJ concerning the credibility of the witnesses or the sufficiency and probative weight of the evidence. Delta Drywall v. Industrial Claim Appeals Office, 868 P.2d 1155 (Colo.App. 1993); Martinez v. Regional Transportation District, 832 P.2d 1060 (Colo.App. 1992).
Here, the ALJ could reasonably infer from the record that the claimant's wife, who apparently is not a certified nurse assistant, performed services comparable to those provided by the employees of Our Nurses, Inc. It is evident from the ALJ's order that she viewed the claimant's wife's services as supplementing those provided by Nurses, Inc., and that the value of those supplemental services was roughly approximated by the wages paid to the company's employees. Under the circumstances, we are not prepared to state that the record compels the inference that the value of the claimant's wife's services was greater than the amount fixed by the ALJ. Accordingly, we decline to disturb her order in this respect.
III.
The respondents also seek review, and contend that the ALJ's factual findings do not support the award of attendant care services to the claimant's wife both prior to the hearing and in the future. The ALJ's findings of fact include that the claimant suffers from quadriplegia from the level of C-6 and is paralyzed from the chest down, is confined to a wheelchair with limited use of his upper extremities, and has a paralyzed bladder, which requires a suprapubic catheter. The ALJ further found that the respondents admitted liability for permanent total disability and voluntarily provided home health care from Our Nurses, Inc. The respondents also paid the claimant's wife $880 per month retroactive to December 2003 to provide additional care. The ALJ found that the claimant's wife assisted him with numerous daily tasks, which included bathing, use of the toilet, eating, dressing, his bowel program, his general hygiene, and his preparation for bed. She further found that the claimant's wife had received "extensive training" in the care of her husband, and that her services were reasonable and necessary for his care. These findings are adequate to support the award of attendant care services performed by the claimant's wife in the future. Snyder v. Industrial Claim Appeals Office, supra. (whether medical treatment is reasonable and necessary is question of fact which must be upheld if supported by substantial evidence). Accordingly, we affirm the award of medical benefits in the form of future services performed by the claimant's wife.
However, the respondents also argue that there is no evidence supporting the claimant's position that he actually received such services from his wife and, if so, the days and hours that she worked. Therefore the respondents argue that the award of additional payments to the claimant's wife should be reversed. The ALJ ordered the respondents to pay the claimant's wife for home health care services at the rate of $14 per hour for hours worked per day that can range from 3.5 to 9.5 Monday through Friday and 16 hours per day on the weekend, depending on the number of hours per day paid to Our Nurses inc. The maximum hours per day including both the claimant's wife's hours and Our Nurses Inc. hours were set by the ALJ at 16. The ALJ ordered that the claimant shall receive these services 7 days per week. Respondents were ordered to pay for these services to the claimant's wife retroactive to the claimant's discharge from Craig Hospital on August 14, 2003. Findings of Fact, Conclusions of Law, and Order at 7 ¶ 1.
However, we do not read the order as awarding specific services rendered by the claimant's wife. Rather the order outlines the rate of pay per hour and sets limits for the maximum permissible hours per day. It is true that the claimant prepared a summary of the amounts and time he felt was owed. See Claimant's Exhibit 14. This exhibit was admitted into evidence without objection and might have formed the basis of a specific award, but we do not understand the order to have credited the summary as establishing the hours actually worked. Hence, we do not read the order as requiring the respondents to pay for those specific hours worked by the claimant's wife.
In our opinion this portion of the ALJ's order is therefore not final and appealable under § 8-43-301(2), C.R.S. 2005. The ALJ's determinations concerning the limits of acceptable attendant care services prior to the hearing did not result in the denial of any benefits or penalties, nor does the order require the payment of any benefits or penalties. Thus, we need not consider the issue at this time. Oxford Chemicals, Inc. v. Richardson, 782 P.2d 843, 846 (Colo.App. 1989) (order may be partially final and reviewable and partially interlocutory). Because we conclude that the order does not provide for the payment of any specific amount for services rendered in the past it is unnecessary to address the respondent's remaining issue of whether the claimant's wife submitted bills in accordance with Rule 16-22(A)(1).
We note, however, that because the order apparently required payment for the wife's services in the future, it is final regarding payment for those services at the rate of $14.00 per hour consistent with the limits set by the ALJ. This portion of the ALJ's order is not a general award of future medical benefits, subject to the respondents' right to contest the necessity and reasonableness of all specific treatment modalities. Rather the ALJ has designated the specific party to be paid and at a specific rate. The ALJ's order precludes the respondents from litigating the merits of its arguments that the attendant care rate should be reimbursed at less then the ordered $14 per hour and that the hours of care should be more restricted. Thus, the ALJ's order effectively requires the respondents to pay further specific medical benefits, and is a final order for purposes of review. Section 8-43-301(2), C.R.S. 2005; See Carreon v. Monfort, Inc., W.C. Nos. 4-140-621 4-195-162 (December 19, 1994). For this reason we have addressed the claimant's contention that the ALJ erred in fixing the rate for his wife's service at $14.00 per hour, and the respondents' contention that the ALJ erred in awarding future attendant care services performed by the claimant's wife.
IT IS THEREFORE ORDERED that the respondents' petition to review is dismissed without prejudice insofar as it concerns the issue of the award of retroactive attendant care services to the claimant's wife prior to the hearing.
IT IS FURTHER ORDERED that the ALJ's order dated January 19, 2006, is otherwise affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Curt Kriksciun
____________________________________ Thomas Schrant
Abel Ontiveros, Gypsum, CO, Gallegos Corporation, Vail, CO, Attn: Jody Estep, Libety Mutual Insurance Company, Peoria, IL, Jennifer E. Bisset, Esq., Denver, CO, (For Claimant).
Scott M. Busser Esq., Denver, CO, (For Respondents).