Opinion
W.C. No. 4-300-524
December 24, 1997
ORDER OF REMAND
The claimant seeks review of a final order of Administrative Law Judge Martinez (ALJ), concerning compensation for home health care services provided by his wife. We set the order aside and remand for entry of a new order.
The ALJ found that the claimant sustained severe injuries to his left hip and left ankle on May 20, 1996. The claimant was in the hospital until May 31, 1996, and was again hospitalized from June 7, 1996 to June 12, 1996.
The ALJ found that, following these periods of hospitalization, the claimant was "unable to take care of himself" and was "confined to a hospital bed which was installed in his living room." Consequently, the claimant's wife quit her job as a waitress, and remained at home with the claimant "performing various duties . . . as would have been provided by a home health care aide." These duties included attending to the claimant's personal hygiene, giving "contrast baths," and assisting the claimant to and from medical appointments.
At the hearing, the claimant's wife testified that she could not leave the claimant by himself because he "was very heavily medicated and in a lot of pain constantly." She also testified that, for the "first couple of weeks at home I didn't sleep one hour a night without being awakened for some reason due to either pain or it was time to give pills or he was cold or he was too hot." (Tr. pp. 9-10). The claimant's wife also testified that, if she had not taken care of the claimant, "he would have to be in the hospital or somewhere." (Tr. p. 12).
Of further significance, the claimant submitted a report from a treating physician dated October 24, 1996. The report stated as follows:
"I would be willing to certify the period from his injury of 05-20-96 through and including 09-01-96 as being the period of time [the claimant's wife] was required as a primary care giver; therefore, whatever accounting would be necessary to allow reimbursement for her loss of work secondary to her full time care giving to her husband during this time."
Based on this evidence, the claimant argued that his wife should be compensated on a twenty-four hour per day basis for the care she provided between May 20, 1996 and September 1, 1996 (except for those days the claimant was hospitalized). However, the ALJ rejected this argument, and awarded compensation for eight hours per day, at the rate of $6.50 per hour, from May 20 through September 1.
In support of this decision, the ALJ found that no medical provider prescribed twenty-four hour per day home health care, and that the "claimant's wife also performed other activities in each day between May 20 and September 1, 1996." The ALJ also found that, "to the extent the claimant's wife testified she spent more than eight hours per day providing home health care services, her testimony was found not to be persuasive."
On review, the claimant contends the ALJ erred in denying the claim for twenty-four hour per day compensation. The claimant argues that the mere fact that his wife did not perform health care services twenty-four hours per day does not alter the fact that he required her proximity twenty-four hours per day. Therefore, the claimant reasons that his wife should be compensated accordingly. Because the ALJ may have applied an incorrect legal standard in resolving this issue, we remand for entry of a new order. Section 8-43-301(8), C.R.S. 1997.
In Edward Kraemer Sons, Inc. v. Downey, 852 P.2d 1286 (Colo.App. 1992), the Court of Appeals considered the issue of compensation when home health care services are provided by a claimant's spouse. The court held that the reasonableness and necessity of home health care services provided by a spouse is a question of fact to be resolved by the ALJ. In resolving this issue, the court stated that the ALJ must "make an initial determination concerning the level and extent of care which is reasonably required by a claimant." Id. at 1288. The court went on to state that if the nature of the claimant's injury required an attendant to remain nearby or "on call," a spouse may be compensated for such periods of time even if the spouse is "not actually rendering a specific service to the claimant." The court observed that if an outside professional were providing the services, the professional would be compensated for "on call" periods even though not always providing services to the claimant. Id. at 1289.
Here, we are unable to ascertain whether the ALJ denied payment for twenty-four hour per day services because he found that the claimant did not need such services, or merely because the claimant's wife was not actually performing specific services twenty-four hours per day. As indicated in Kraemer, the ALJ must make an initial determination of whether the claimant needed the presence of an attendant twenty-four hours per day, regardless of whether services were actually provided during all twenty-four hours.
On remand, the ALJ shall make an initial determination concerning the "level and extent of care" which the claimant required during the disputed period of time. If the claimant's condition required his wife's presence for twenty-four hours per day, compensability shall not be denied merely because the wife did not actually provide services during each hour of the day.
In reaching this result, we should not be understood as expressing any opinion concerning the factual issues underlying these determinations.
IT IS THEREFORE ORDERED that the ALJ's order dated June 17, 1997, is set aside insofar as it denied compensation for the services of the claimant's spouse in excess of eight hours per day.
IT IS FURTHER ORDERED that the matter is remanded to the ALJ for entry of a new order consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Kathy E. Dean
Copies of this decision were mailed December 24, 1997 to the following parties:
Franklin Schmelzla, P.O. Box 1273, Bayfield, CO 81122
Silver Stream Resort and/or Wit's End d/b/a Silver Stream Resort, 4207 N. 19th Ave., Phoenix, AZ 85015
Colorado Compensation Insurance Authority, Attn: Carolyn A. Boyd, Esq. (Interagency Mail)
Kendra Oyen, Esq., 744 Horizon Ct., Ste. 360, Grand Junction, CO 81506 (For the Respondents)
Robert C. Dawes, Esq., 572 E. Third Ave., Durango, CO 81301 (For the Claimant)
By: __________________________