Opinion
W.C. No. 4-192-027.
November 3, 2006.
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Jones (ALJ) dated April 26, 2006 that ordered the respondents to purchase a wheelchair-accessible van for the claimant in order to relieve him of the medical effects of his paraplegia. We modify the order to reflect that the claimant actually paid $24,579.65 for the wheelchair-accessible van rather then the $26,579.35 as found by the ALJ, and otherwise affirm the order.
The ALJ's pertinent findings of fact are as follows. The claimant sustained an admitted industrial injury on January 28, 1993, when he fell through the floor of a construction site. The claimant suffered a fracture dislocation in his spine with incomplete paraplegia. Initially the claimant drove a modified Ford Explorer and was able to transfer in and out of his vehicle. In 2005 Dr. Lanig recommended that the claimant change his vehicle to a van with a power lift. It was Dr. Lanig's believe that transferring into the Ford Explorer and then pulling his manual wheelchair into the vehicle placed the claimant at risk for shearing of his skin was well as shoulder and back injuries. Dr. Lanig also noted that he had ordered the claimant a power wheelchair to preserve his shoulders so the claimant needed the modified van to transport himself. The Claimant developed a skin ulcer due to transferring in and out of his Ford Explorer. The claimant paid for the purchase of a Toyota Sienna in the amount of $26,579.35. The insurer paid for modifications to the Toyota Sienna in the amount of $28,786.25 to make the van wheelchair-accessible. The parties agreed that the power wheelchair was a medical apparatus as defined by the statute, the sole issue was whether the Toyota Sienna is a medical apparatus.
The ALJ determined that the claimant did not request the wheelchair-accessible van in order to be more independent or to maintain an active lifestyle. Rather the ALJ found that the claimant was prescribed a van as a medical aid to relieve the effects of his paraplegia. The ALJ identified three significant medical effects the wheelchair-accessible van had on the claimant's paraplegia. The claimant's shoulders have deteriorated as a result of having to pick up and transfer his manual wheelchair into his Ford Explorer. The claimant could not access the Ford Explorer in his power wheelchair. The claimant could access his power wheelchair only in the wheelchair-accessible van. With the wheelchair-accessible van the claimant does not have to lift his wheelchair at all. The power wheelchair was prescribed by his physicians to keep his shoulders from deteriorating. The claimant suffered skin breakdowns as a result of transferring from his Ford Explorer to his manual wheelchair. With the wheelchair-accessible van, the transfer could be accomplished without any risk of skin problems. The claimant gained 140 pounds as a result of his paraplegia, so he must engage in a fitness program. With the wheelchair-accessible van the claimant can continue his fitness program in order to lose weight and prevent further deterioration of his spine.
The ALJ concluded that the wheelchair-accessible van relieves the claimant's symptoms of paraplegia and, therefore, is a medically necessary apparatus. The fact that there is an incidental, secondary benefit to the claimant with regard to his independence and being able to maintain a more productive lifestyle does not eliminate the medical fact that the wheelchair-accessible van provides therapeutic relief from the symptoms of his injury. The ALJ therefore found the respondents liable for the purchase of the wheelchair-accessible van.
The respondents contend on appeal that the ALJ misapplied the law in finding them liable for the purchase of the wheelchair-accessible van. The respondents argue that there is no evidence that use of the wheelchair-accessible van relieves the claimant's symptoms of paraplegia and the facts of this claim are indistinguishable from those in Bogue v. SDI Corporation, Inc., 931 P.2d 477 (Colo.App. 1996). We disagree.
Under § 8-42-101(1)(a), C.R.S. 2006, 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).
For a particular apparatus to be a compensable medical benefit it must provide "therapeutic relief" from the effects of the injury. Cheyenne County Nursing Home, v. Industrial Claim Appeals Office, 892 P.2d 443, 446 (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 snowblower was not a compensable medical "apparatus" because it did not cure or relieve symptoms of the industrial injury, and only provided an easier method to perform a household chore. Similarly, in Hillen v. Tool King, 851 P.2d 289 (Colo.App. 1993), the court denied a request for lawn care services because the services were not medical in nature, even though they were prescribed by an attending physician. The court concluded that lawn care did not cure or relieve the symptoms of the injury and only relieved the rigors of yard work. Therefore, the court concluded that it was not sufficiently related to the claimant's physical health to be a compensable medical service.
Furthermore, expressly 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. Moreover, 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.
Ultimately, 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 if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2006. Furthermore, this standard requires that we defer to plausible inferences drawn from the record. Suetrack USA v. Industrial Claim Appeals Office, 902 P.2d 854 (Colo.App. 1995).
Here, the claimant testified that he started having skin breakdown because of getting in and out of the vehicle with his manual wheelchair. Tr. at 29. A nurse took a report from the claimant that he developed a sore from a bad transfer getting in and out of his vehicle. Exhibit 3 at 10. On March 9, 2005 the claimant also reported to the nurse that he had recent skin breakdown, which put his fitness program on hold. Exhibit C at 34. Dr. Lanig recommended that the claimant change his vehicle to a van with a power lift because it was believed that transferring into his present vehicle and then pulling his chair into the vehicle placed him at risk for shearing of his skin as well as shoulder and back injuries. Exhibit 2 at 9. The wheelchair-accessible van is a necessary component of the claimant's use of a power wheelchair.
Accordingly, there is substantial evidence in the record from which the ALJ reasonably inferred that the van provides therapeutic relief from the symptoms of the injury. The ALJ also found that the prescribed apparatus is designed to prevent further deterioration of the claimant's condition. In Bogue v. SDI Corporation, Inc., supra, the court took note that the ALJ declined to find that the van would be used "incident" to the provision of reasonably necessary medical treatment. Here the wheelchair-accessible van was found by the ALJ to be necessary for the claimant can continue his fitness program in order to lose weight and prevent further deterioration of further deterioration of his spine. In Bogue the wheelchair-accessible van was not prescribed as a medical aid to relieve him of the medical symptoms of his quadriplegia. Here the ALJ found the claimant developed skin ulcers due to transferring in and out of his Ford Explorer and established with the wheelchair-accessible van the transfers could be accomplished without any risk of skin problems. Further the ALJ found that the claimant's shoulders deteriorated as a result of having to pick up and transfer his manual wheelchair into his Ford Explorer, but with the wheelchair-accessible van the claimant does not have to lift his wheelchair at all. We are required to consider the evidence in a light most favorable to the prevailing party, and defer to the ALJ's resolution of conflicts in the evidence, and plausible inferences drawn from the record. Wilson v. Industrial Claim appeals Office, 81 P.3d 1117 (Colo.App. 2003). Under these circumstances, we perceive no basis on which to interfere with the ALJ's finding.
The respondent next argues that purchase of the Toyota Sienna van chassis was not authorized by the insurer. The claimant contends this argument was not raised before the ALJ and thus, argues it is not properly before us on appeal. We agree. Parties are expected to raise all issues and defenses before the ALJ and we may not consider issues raised for the first time on appeal. Cf. Frank v. Industrial Commission, 96 Colo. 364, 43 P.2d 158 (1935); Colorado Compensation Ins. Authority v. Industrial Claim Appeals Office, 884 P.2d 1131 (Colo.App. 1994).
The respondents contend and the claimant concedes that the ALJ erred in finding that the claimant actually paid $24,579.65 for the wheelchair-accessible van rather then the $26,579.35 as found by the ALJ.
IT IS THEREFORE ORDERED that the ALJ's order dated April 26, 2006 is modified to reflect that the claimant paid $24,579.65 for the wheelchair-accessible van rather then the $26,579.35 as found by the ALJ and the order is otherwise affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ John D. Baird
___________________________________ Thomas Schrant
Gregory Harrison, Arvada, CO, Advanced Component Systems, Inc., Lafayette, CO, Pinnacol Assurance, Harvey D. Flewelling, Esq., Denver, CO, Ruegsegger, Simons, Smith Stern, LLC, Connie K. Hulst, Esq., Denver, CO, (For Respondents).
Douglas R. Phillips, Esq., Denver, CO, (For Claimant).