Opinion
W.C. No. 3-876-696
October 2, 1998
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Wheelock (ALJ) which denied further medical benefits in the form of housekeeping services. We affirm.
The claimant suffered an admitted low back injury on August 9, 1987, arising out of her employment for The Southland Corporation. The claimant eventually underwent surgery. Following surgery, the claimant required the services of a home health aide, and the respondents began providing housekeeping services.
On December 3, 1991, the claimant executed a Stipulation for Full and Final Settlement of the claim. The settlement provided that, in exchange for a lump sum payment the claimant waived her right to receive any further workers' compensation benefits, except medical benefits. The ALJ approved the settlement on January 2, 1992.
Thereafter, the claimant ceased the need for the services of a home health aide. However, the respondents continued to provide housekeeping services.
In September 1993, the respondent-insurer notified the claimant that they contested liability for further housekeeping services. The claimant objected and applied for a hearing.
The ALJ found that the terms of the settlement were clear and unambiguous, and therefore, she determined that parol evidence, in the form of testimony from the claimant and the claimant's former attorney, was inadmissible to alter the express terms of the settlement. Further, the ALJ determined that future housekeeping services are not reasonable and necessary under the rule announced in Country Squire Kennels v. Tarshis, 899 P.2d 362 (Colo.App. 1995). Therefore, the ALJ relieved the respondents of the duty to pay for further housekeeping expenses.
I.
On review, the claimant first contends that the ALJ erroneously allowed the respondents to contest the "reasonableness and necessity" of further housekeeping services. The claimant contends that the settlement expressly contemplated the respondents' liability for ongoing housekeeping services, and that the respondents did not dispute the reasonableness of those services at the time of the settlement. Therefore, the claimant argues that the respondents are precluded from litigating the issue. We disagree.
A settlement agreement is a contract, and its interpretation is a question of law. Cary v. Chevron U.S.A., Inc., 867 P.2d 117 (Colo.App. 1993). If the language used in the agreement is plain, clear and no absurdity is involved, the agreement must be enforced as written. Three G. Corp. v. Daddis, 714 P.2d 1333 (Colo.App. 1986).
Parol evidence is only admissible if the agreement is so ambiguous that the parties' intent is unclear. Cheyenne Mountain School Dist. #12 v. Thompson, 861 P.2d 711 (Colo. 1993). The mere fact that the parties purport to interpret the agreement differently does not, in itself, create an ambiguity. See Burns v. Burns, 169 Colo. 79, 454 P.2d 814 (Colo. 1969); Brunton v. International Trust Co., 114 Colo. 298, 164 P.2d 472 (1945).
Here, the parties' settlement agreement expressly provides that:
"The Respondents hereby agree that medical benefits that are reasonable and necessary and causally relate to the Claimant's admitted injuries shall remain open. The Respondents, however, retain their rights to contest the reasonableness and necessity and causal relationship of Claimant's medical treatment."
The plain, language of the settlement agreement reflects that the respondents reserved the right to contest the "reasonableness and necessity" of any future medical treatment. Therefore, we conclude as a matter of law that the pertinent terms of the settlement agreement are not ambiguous.
In view of this conclusion, it is immaterial whether the ALJ resolved "any ambiguity" in the settlement language against the claimant as the drafter of the disputed provisions. Cf. Cary v. Chevron, supra. However, we note that the medical benefit provisions of settlement were specifically amended by the handwritten interlineations of the claimant's former attorney. Therefore, even if the provisions were ambiguous, they would have to be construed against the claimant. Perl-Mack Enterprises Co. v. City and County of Denver, 568 P.2d 468, 194 Colo. 4 (1977).
However, relying upon Karakehian v. Boyer, 900 P.2d 1273 (Colo.App. 1994), the claimant contends that the parol evidence rule does not preclude the admission of oral representations which are not inconsistent with the written agreement, or not of the type which would normally be expected to be incorporated in a written agreement. The claimant contends that her testimony and the testimony of her former attorney concerning their understanding of the agreement is not inconsistent with the written agreement, and serves to "explain" why the claimant entered into the settlement. Therefore, the claimant contends that the ALJ erred in finding their testimony could not be introduced for the purpose of proving the terms of the settlement. We perceive no error.
In Karakehian, the Court of Appeals allowed the introduction of parol evidence concerning the parties' oral representations about a lease and purchase option agreement. The court concluded that parol evidence was admissible because it explained the reason the parties entered into the agreement and was relevant to whether an agreed upon condition precedent had occurred. However, the Supreme Court disagreed, and held that the parol evidence was improperly admitted because it directly contradicted the express, unambiguous language of the agreement concerning the nature of the lease/option. Boyer v. Karakehian, 915 P.2d 1295, 1300 (Colo. 1996).
Here, the claimant testified that she entered into the settlement agreement because she understood that housekeeping services would continue "for the indefinite future" or until she "no longer needed them." (Tr. p. 28). Insofar as the claimant sought to prove that the respondents agreed to provide ongoing medical benefits without limitation, the claimant's testimony and that of her former attorney contradicts the plain language of the settlement. Therefore, the ALJ correctly concluded that the testimony could not be admitted for the purpose of altering the plain language of the agreement.
In reaching our conclusion, we recognize that the claimant's reasons for entering into the agreement might be relevant to a petition to reopen the settlement on grounds of "fraud or mutual mistake of a material fact." See § 8-43-204(1), C.R.S. 1998. However, neither party has petitioned to reopen the settlement. Therefore, the ALJ did not err in refusing to consider testimony concerning the claimant's reasons for settling the claim to interpret the terms of the settlement.
II.
Next, the claimant contends that the ALJ erred in the retroactive application of Country Squire Kennels v. Tarshis, supra. The claimant contends that her right to medical benefits is governed by former section 8-49-101(1)(a), C.R.S. (1986 Repl. Vol. 3B) [currently codified with changes at 8-42-101(1)(a), C.R.S. 1998], and that Tarshis constitutes a new rule of law concerning her right to housekeeping services. We disagree.
A judicial opinion is applied "retroactively" when it is applied to a transaction that occurred prior to the announcement of the opinion. Loffland Brothers Co. v. Industrial Claim Appeals Office, 754 P.2d 768 (Colo.App. 1988), aff'd, 770 P.2d 1221 (Colo. 1989). A judicial decision may be applied retroactively if it does not establish a new principle of law:
"[E]ither by overruling clear past precedent on which litigants may have relied, or by deciding an issue of first impression whose resolution was not clearly foreshadowed."
Loffland Brothers Co. v. Industrial Claim Appeals Office, supra; Marinez v. Industrial Commission, 746 P.2d 552, 556 (Colo. 1987).
Admittedly, the ALJ's order only grants prospective relief from the respondents' obligation to payment for housekeeping services. However, the ALJ applied Tarshis to the terms of the parties' 1991 settlement agreement, and thus, it appears the ALJ applied the Tarshis opinion to a "transaction" which occurred prior to the announcement of that opinion. Under these circumstances, we assume, arguendo that the issue of retroactivity is implicated. Loffland Brothers Co. v. Industrial Claim Appeals Office, supra.
However, we agree with the respondents that the Tarshis opinion was clearly foreshadowed. Therefore, the ALJ did not err in applying it to the facts of this claim.
Section 8-42-101(1)(a), C.R.S. 1998, and its predecessor statute require the employer to provide medical treatment which is reasonable and necessary to "cure and relieve the employee from the effects of the injury." 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). In Country Squire Kennels v. Tarshis, supra, the court held that housekeeping services are not reasonable and necessary unless they are "incidental to" the "expense of providing reasonably necessary medical, nursing or attendant care services." In this context, the Tarshis court stated that the term "incidental to" means that the housekeeping must "enable the claimant to obtain medical care or treatment or, alternatively, must be relatively minor in comparison to the medical care and treatment."
Prior to Tarshis, and prior to the parties' settlement agreement, the court issued Atencio v. Quality Care, Inc., 791 P.2d 7 (Colo.App. 1990), in which it held that the record supported an ALJ's determination that medically prescribed housekeeping and attendant care services were compensable medical benefits. Later that same year, the court issued ABC Disposal Services v. Fortier, 809 P.2d 1071, 1072 (Colo.App. 1990), which held that a medically prescribed snowblower was not a compensable medical "apparatus" because did not cure or relieve symptoms from the industrial injury, and only provided an easier method to perform a household chore.
In 1992, the court ordered an insurer to compensate a claimant's spouse for home health care under circumstances where the claimant required constant attendant care. Edward Kraemer Sons, Inc. v. Downey, 852 P.2d 1286 (Colo.App. 1992). In so doing, the court noted that compensation is not due if the only services rendered by a claimant's spouse are ordinary household services.
Thereafter, in the case of Valdez v. Gas Stop, 857 P.2d 544 (Colo.App. 1993), the court construed Atencio as permitting an award of medical benefits in the form of housekeeping services only if the services are central to the claimant's physical health and incidental to medically necessary attendant care services. Therefore, the Valdez court denied medically prescribed housekeeping services to a claimant who was not receiving attendant care.
In 1993, the court also issued Hillen v. Tool King, 851 P.2d 289 (Colo.App. 1993), which denied lawn care services because they were not medical in nature, even though they were prescribed by an attending physician. Similarly, in Cheyenne County Nursing Home, v. Industrial Claim Appeals Office, 892 P.2d 443 (Colo.App. 1995), the court denied a stair glide because it had no therapeutic benefit. The court reasoned that Atencio, ABC and Hillen applied a "narrow" construction of § 8-49-101(1), and concluded that the "existing authority establishes a pattern we are constrained to follow." 892 P.2d at 445 Therefore, the Cheyenne court declined to adopt a liberal construction of § 8-49-101(1).
Under these circumstances, we feel compelled to conclude that Tarshis was clearly foreshadowed by the prior case law. In fact, Tarshis expressly stated that it's definition of the term "incidental" is consistent with the court's use of that term in Atencio and Kraemer. 899 P.2d at 364. Therefore, the ALJ was not precluded from the retroactive application of Tarshis.
III.
Lastly, the claimant contends that the ALJ erred in finding that housekeeping services are not reasonable and necessary under the facts of this claim. In support, the claimant states that her condition has not improved since the settlement, and that she continues to suffer from chronic back pain, with frequent episodes of loss of balance. She also notes that Dr. Mitchell prescribed housekeeping services, and argues that under Senate Bill 91-218, the physician's opinion is entitled to the greatest weight. Again, we disagree.
A prescription for housekeeping services does not itself render the services compensable. Cheyenne County Nursing Home, v. Industrial Claim Appeals Office, supra. Furthermore, Senate Bill 91-218 only affords special weight to the treating physician's opinion concerning the claimant's ability to return to regular employment, maximum medical improvement and permanent disability. See § 8-42-105(3)(c) 8-42-107(8), C.R.S. 1998.
In any case, the statutory amendments enacted by Senate Bill 91-218 only apply to injuries on or after July 1, 1991. Martinez v. Regional Transportation District, 832 P.2d 1060 (Colo.App. 1992). Therefore, those amendments to do apply to this claim for a 1987 injury.
There is substantial evidence in the record to support the ALJ's determinations that the claimant is no longer receiving medically necessary attendant care, and that housekeeping services are not incidental to obtaining medial treatment. Therefore, we must uphold the ALJ's order denying further housekeeping services. Section 8-43-301(8), C.R.S. 1998; Sears v. Penrose Hospital, 942 P.2d 1345 (Colo.App. 1997).
IT IS THEREFORE ORDERED that the ALJ's order dated April 30, 1997, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacate this Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO 80203, by filing a petition for review with the court, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date this Order is mailed, pursuant to section 8-43-301(10) and 307, C.R.S. 1998.
Copies of this decision were mailed October 02, 1998 to the following parties:
Barbara J. Higley, 17285 Lodge Pole Rd., Peyton, CO 80831
Southland Corporation, % White and Steele, P.C., 1225 17th St., 28th floor, Denver, CO 80202-5528
Dawn Kaup, American Motorists Insurance Company, P. O. Box 5347, T. A., Denver, CO 80217-5347
Steven U. Mullens, Esq., P. O. Box 2940, Colorado Springs, CO 80901-2940 (For Claimant)
Ted A. Krumreich, Esq. and John Lebsack, Esq., 1225 17th St., 28th floor, Denver, CO 80202-5528 (For Respondents)
BY: _______________________