Opinion
W.C. No. 4-247-484
March 22, 2000
ORDER OF REMAND
The respondents seek review of an order of Administrative Law Judge Martinez (ALJ) which required them to provide medical benefits in the form of hand control adaptions to the claimant's motor vehicle. The respondents contend there is insufficient evidence to support the ALJ's finding that the hand controls are a compensable medical benefit. We set aside the order, and remand for the entry of a new order.
In 1995, the claimant, a Leadville resident, suffered an admitted fracture to his right ankle. He subsequently underwent three surgeries and developed Reflex Sympathetic Dystrophy (RSD). The claimant drives to Denver five times a year to receive lumbar sympathetic nerve block injections from Dr. Wright. The claimant also uses a medicated cream, an implanted spinal stimulator and must wear a hard boot cast to protect his foot from further injury. The claimant testified that wearing the boot hinders his ability to operate the vehicle. Consequently, he drives with his left foot, which he stated is unsafe.
Dr. Colliton and Dr. Nichols prescribed hand controls for the claimant's vehicle. Dr. Worwag disagreed with the prescription and opined that the claimant is quite functional on his injured extremity. The respondents refused to provide hand controls and the matter was scheduled for a hearing before the ALJ.
The ALJ found that if the claimant drives with his right foot while wearing the boot, his right foot becomes numb and cold. As a result, the claimant is unable to control the movement of that foot. The ALJ also found that the claimant cannot safely drive without some form of assistance and that hand controls are reasonable and necessary to treat the industrial injury. Therefore, the ALJ ordered the respondents to provide hand controls for the claimant's motor vehicle, pay the cost of installation and the cost of instructing the claimant on their use.
Under § 8-42-101(1)(a), C.R.S. 1999, the respondents are required to provide medical services "as may reasonably be needed" to "cure and relieve" the effects of the industrial injury. See Colorado Compensation Insurance Authority v. Nofio, 886 P.2d 714 (Colo. 1994). Based upon this statute employers have been required to provide services which are either medically necessary for the treatment of a claimant's injuries or incidental to obtaining treatment. Industrial Commission v. Pacific Employers, 120 Colo. 373, 209 P.2d 980 (1949); Sigman Meat Co. v. Industrial Claim Appeals Office, 761 P.2d 265 (Colo.App. 1988) (mileage reimbursement incidental to medical treatment).
For a particular apparatus to be a medical necessity it must provide "therapeutic relief" from the effects of the injury. Cheyenne County Nursing Home, v. Industrial Claim Appeals Office, 892 P.2d 443 (Colo.App. 1995). The Cheyenne court defined the terms "relieve the effects of the injury" and "therapeutic benefit" narrowly. Under the facts of that case the court denied the request of a wheelchair restricted quadriplegic for a stair glide to obtain access to her basement during dangerous tornado weather. The court concluded that the stair glide provided no therapeutic benefit and that benefits designed to increase the claimant's peace of mind were beyond the scope of the Workers' Compensation Act.
In ABC Disposal Services v. Fortier, 809 P.2d 1071, 1072 (Colo.App. 1990), the court held that a medically prescribed snow blower was not a compensable medical "apparatus" because it did not cure or relieve symptoms of the industrial injury. Rather, it only provided an easier method to perform a household chore. Further, in Hillen v. Tool King, 851 P.2d 289 (Colo.App. 1993), the court denied a request for lawn care services because such services are not medical in nature, even though they were prescribed by an attending physician. The court concluded that lawn care does not cure or relieve the symptoms of the injury and only relieves the rigors of yard work.
Finally, relying on Cheyenne, the court in Bogue v. SDI Corporation, Inc., 931 P.2d 477 (Colo.App. 1996), denied a wheelchair-accessible van to a quadriplegic claimant because the van did not provide therapeutic medical relief from the symptoms of the industrial injury. The Bogue court concluded that avoiding risks associated with the claimant's exposure to inclement weather while waiting for public transportation does not render the specialized van sufficiently related to the claimant's physical condition to be a compensable medical apparatus. Under the facts of that claim, the court also rejected an argument that the van was "incidental" to the claimant's access to medical care. Compare Trigg v. Acoustical Construction Supply, W.C. No. 3-766-426 (September 7, 1994) (wheelchair accessible van incidental to quadriplegic's access to medical treatment).
The determination of whether a particular apparatus provides a therapeutic benefit to the claimant is a question of fact for resolution by the ALJ. Hillen v. Tool King, supra; Edward Kraemer Sons, Inc. v. Downey, 852 P.2d 1286 (Colo.App. 1992). We must uphold the ALJ's factual determinations unless the findings are not supported by evidence in the record. § 8-43-301(8), C.R.S. 1999.
Contrary to the claimant's arguments, neither Dr. Colliton nor Dr. Nichols recommended the hand controls to provide "therapeutic" relief from the effects of the injury. Dr. Colliton recommended the hand controls to prevent the claimant from endangering himself and others while he is driving. (Colliton report February 15, 1999). Specifically, Dr. Colliton reported that he would "feel safer if somebody with [the claimant's] disability with inability to use his right foot were driving with hand controls." (Colliton report March 29, 1999). Dr. Colliton opined that the claimant does not have control over his right lower extremity, and therefore, Dr. Colliton suspected the claimant would lose his driver's license in the absence of some special device. Therefore, he recommended the hand controls for the claimant's "safety on the road as well as others." Similarly, Dr. Nichols recommended the hand controls so that the claimant can "safely operate" a car. (Nichols report March 18, 1999).
The claimant testified that Dr. Colliton was looking out for "my safety and my family's safety, or others," when he prescribed the hand controls. (Tr. p. 23). He also stated that he felt he would be a safer driver with the hand controls. (Tr. p. 28). However, he did not allege that the hand controls provided any therapeutic benefit aside from avoiding the pain associated with driving. Under these circumstances, the evidence is legally insufficient to support a finding that the prescribed hand controls provide therapeutic relief as that term is defined by Cheyenne County Nursing Home v. Industrial Claim Appeals Office, supra.
However, it is undisputed the claimant must travel from Leadville to Denver at least five times a year for treatment of the industrial injury. Thus, the record contains some evidence which, if credited, might support a finding that the hand controls are "incidental" to obtaining treatment of the industrial injury. See Trigg v. Acoustical Construction Supply, W.C. No. 3-766-246 (September 7, 1994).
The ALJ made no findings of fact concerning whether the hand controls are "incidental" to medical treatment of the injury. Thus, the ALJ's findings are insufficient to ascertain whether he erroneously awarded the disputed apparatus, and the matter must be remanded for further findings of fact and a new order concerning the claimant's entitlement to the hand controls.
IT IS THEREFORE ORDERED that the ALJ's order dated September 28, 1999, is set aside and the matter is remanded to the ALJ for entry of a new order.
INDUSTRIAL CLAIM APPEALS PANEL ____________________________________ David Cain ____________________________________ Kathy E. Dean
Copies of this decision were mailed March 22, 2000 to the following parties:
Joe Magdaleno, 304 W. 17th Ave., Leadville, CO 80461-3421
Kemp Co., Inc., P. O. Box 189, Edwards, CO 81632
Laurie A. Schoder, Esq., Colorado Compensation Insurance Authority dba Pinnacol Assurance — Interagency Mail (For Respondents)
Jeffrey S. Auxier, Esq., P. O. Box 1869, Edwards, CO 81632 (For Claimant)
Grant C. Butterfield, Esq., 600 17th St., #1600N, Denver, CO 80202
BY: A. Pendroy