Opinion
W.C. No. 4-421-048
September 11, 2001
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Felter (ALJ) which awarded medical benefits in the form of child care services. We affirm.
On May 3, 1999, the claimant suffered an admitted injury to his left forearm. On April 12, 2000, the claimant underwent surgery and was medically restricted from returning to work.
The claimant is the sole custodian for two sons ages 4 years and 5 years. On June 29, 2000, the treating physician, Dr. Schmidt, wrote a prescription for child care services during the day to relieve the claimant from having to use his arm to care for his sons. In a subsequent letter dated November 13, 2000, Dr. Schmidt reported that because of the claimant's treatment regimen, the claimant was unable properly to care for his children. Dr. Schmidt explained that as a result of the injury the claimant was medically restricted from lifting, moving things, or performing any kind of heavy work, and the claimant needed to rest his arm to avoid permanent impairment. Consequently, Dr. Schmidt prescribed child care services 8 hours a day for 5 days a week.
The ALJ found the prescribed child care services were medically necessary to cure or relieve the effects of the industrial injury and incidental to medical treatment. Therefore, the ALJ ordered the respondents to provide child care services in accordance with Dr. Schmidt's prescription commencing April 13, 2000, and continuing during all periods of time the claimant is unable to work as result of the industrial injury.
On review the respondents contend the ALJ erred as a matter of law in finding that the prescribed child care services are a compensable medical benefit. Relying on Kuziel v. Pet Fair, Inc., 931 P.2d 521 (Colo.App. 1996), the respondents contend the court has declined to include child care services in the definition of compensable "medical benefits."
In any case, the respondents contend there is insufficient evidence to substantiate a direct causal relationship between the industrial injury and the need for child care services. In particular, the respondents contend there is no medical evidence that use of the claimant's left arm to care for his children exacerbates his injury or impedes his recovery. We reject these arguments.
It is now well established that a compensable medical benefit must be either "medical in nature" or "incidental" to obtaining necessary medical treatment. Country Squire Kennels v. Tarshis, 899 P.2d 362 (Colo.App. 1995). In Kuziel v. Pet Fair, Inc., supra, the claimant sought reimbursement for an airline ticket which she purchased so her sister could fly in to stay with the claimant's children while the claimant was hospitalized for treatment of the industrial injury. The court held the airline ticket was not medical in nature because it did not relieve the symptoms or effects of the injury and was not directly associated with the claimant's physical needs. Further, the Kuziel court determined that the "child care services" were not "incidental" to the claimant's receipt of medical treatment under a theory that the child care services "enabled" the claimant to access the treatment. Industrial Commission v. Pacific Employers, 120 Colo. 373, 209 P.2d 980 (1949) (medical benefits awarded in the form of room and board expenses while the claimant was required to travel away from home to receive hospital treatment, but disallowed once the claimant relocated to a new home near the hospital). In so concluding, the Kuziel court specifically stated:
"We, like the court in Pacific Employers, are disinclined to extend benefits to cover the payment of expenses incurred for household care or maintenance, child, spousal, or pet care, or other routine living expenses that are paid or incurred during a claimant's hospitalization or other medical treatment."
Expressly relying on Kuziel, we subsequently reversed an award of child care services in Bellone v. The Bailey Co., W.C. No. 4-156-077 (November 8, 1996). However, in Bellone v. Industrial Claim Appeals Office, 940 P.2d 1116 (Colo.App. 1997), the court set aside our order and remanded the matter with directions to reinstate an award of child care services. In so doing, the Bellone court refused to construe Kuziel as prohibiting an award of medical benefits in the form of child care services. Rather, the Bellone court determined that the compensability of child care services is dependent on the particular facts of the case.
The claimant in Bellone was a single mother of two children. As a result of an admitted closed head injury the claimant suffered from seizures, extreme fatigue, depression, mental confusion and a sleep disorder. The treating neuropsychologist reported that when the claimant became overwhelmed or overly fatigued she was more susceptible to seizures. Child care services were prescribed to allow the claimant to attend medical appointments and rest. Thus, the services relieved the symptoms of the injury and were "incidental" to the receipt of medical treatment. The Bellone court determined that these circumstances were factually distinguishable from the circumstances in Kuziel partly because there was supporting medical testimony to indicate child care services relieved the Bellone claimant from the effects of the industrial injury.
Regardless of whether the decisions issued by the Court of Appeals in Kuziel and Bellone may be viewed as contradictory, the court has repeatedly held that the question of whether a particular service is medically necessary or incident to obtaining medical treatment is one of fact to be resolved by the ALJ based on the particular facts of the case. Bellone v. Industrial Claim Appeals Office, supra; Edward Kraemer Sons, Inc. v. Downey, supra; Atencio v. Quality Care, Inc., supra. Because the issue is factual, we must uphold the ALJ's determination if supported by substantial evidence in the record. Bellone v. Industrial Claim Appeals Office, supra; § 8-43-301(8), C.R.S. 2000.
Substantial evidence is probative evidence which would warrant a reasonable belief in the existence of facts supporting a particular finding, without regard to the existence of contradictory or contrary inferences. Ackerman v. Hilton's Mechanical Men, Inc., 914 P.2d 524 (Colo.App. 1996). Furthermore, the substantial evidence standard requires that we defer to the ALJ's credibility determinations, and the plausible inferences he drew from the record. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
The respondents' arguments notwithstanding, there is substantial evidence to support the ALJ's finding that the prescribed child care services were designed to relieve the symptoms or effects of the injury and are directly associated with the claimant's physical needs. The claimant testified that he requires child care so that he can attend his weekly physical therapy and doctors appointments. He also stated that he has a home exercise program that takes about 3 hours per day to complete, and he is unable to care for the children while he is doing his exercises. (Tr. pp. 10, 13). He added that he easily over extends himself dressing, cooking and cleaning up after the children, which causes him to experience a severe pain. As a result, he stated that he cannot do anything for the following day or two. (Tr. pp. 14, 46).
We also reject the respondents' contention that the record does not support the ALJ's finding the claimant required child care to attend "numerous" medical appointment each week. (Finding of Fact 3). The claimant testified that at the time of the hearing he was attending physical therapy 5 days per week and that he was previously attending physical therapy 3 to 4 times per week. (Tr. p. 7). He also stated he sees Dr. Leo once a week. (Tr. p. 8).
The claimant's testimony is buttressed by the medical reports of Dr. Schmidt. On November 13 Dr. Schmidt stated the claimant has an "extensive exercise regimen for his arm which is performed during the day," and the claimant is not allowed to use his arm for anything except "gentle exercises." He also recommended the claimant rest his arm to avoid permanent impairment and take naps during the day. Dr. Schmidt opined that if the claimant were to spend more time caring for his children, "he would experience increased pain and the rehabilitation of his arm would suffer."
However, the respondents contend Dr. Schmidt's prescription and the ALJ's order ignore evidence that the claimant's children were in daycare prior to the injury so the claimant could work. Because the need for daycare existed independent of the industrial injury, the respondents argue that it is an ordinary living expense and not a cost incurred as a result of the industrial injury. Again we disagree.
The claimant in Bellone admitted that prior to the industrial injury she incurred child care expenses during her forty hour work week. Nevertheless, the court upheld the award of child care services for twenty hours a week so the claimant could rest.
As noted by the ALJ, the facts presented here are not significantly different from the pertinent facts in Bellone. Therefore, we perceive no basis to treat this claim differently.
Here, as in Bellone, the claimant admitted he had the children in daycare prior to Dr. Schmidt's prescription for child care services. The ALJ found that while the claimant was at work, the need for daycare was a personal expense. However, the ALJ determined that after the prescription the disputed child care was a not a "personal expense" because it was a necessary component of the overall treatment of the industrial injury. (Tr. p. 36); CAN-USA Construction, Inc. v. Gerber, 767 P.2d 765 (Colo.App. 1988), rev'd on other grounds at 783 P.2d 269 (1989) (the ALJ's oral findings may be considered to interpret the ALJ's written findings). Conversely, the daycare was no longer an expense associated with the claimant's ordinary living expenses because he was no longer able to work. Therefore, we perceive no error in the ALJ's finding that the disputed child care services are compensable.
Insofar as the respondents have further arguments, they have been considered and do not alter our conclusions.
IT IS THEREFORE ORDERED that the ALJ's order dated December 20, 2000, 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, within twenty (20) days after the date this Order is mailed, pursuant to § 8-43-301(10) and § 8-43-307, C.R.S. 2000. The appealing party must serve a copy of the petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed September 11, 2001 to the following parties:
Mark Phillips, 10180 W. Virginia Ave., Lakewood, CO 80226
Union Power, 725 Tower Rd., Aurora, CO 80011-8019
Continental Casualty Company, Vicky Edgar, RSKCo, P. O. Box 5408, Denver, CO 80217-5408
Joseph M. Goldhammer, Esq. and Susan J. Eckert, Esq., 1563 Gaylord St., Denver, CO 80206 (For Claimant)
David J. Dworkin, Esq. and Margaret Bauder Garcia, Esq., 3900 E. Mexico Ave., #1300, Denver, CO 80210 (For Respondents)
By: A. Pendroy