Opinion
W.C. No. 4-156-884
July 18, 1997
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Henk (ALJ). The respondents contend that the ALJ erred in ordering them to pay for attendant care and housekeeping services commencing January 10, 1994. We disagree, and therefore, affirm.
The ALJ's pertinent findings of fact may be summarized as follows. The claimant suffered compensable injuries on June 7, 1992 when a 30 to 40 pound box of frozen bread dough fell on her mid and upper back. Dr. Quick treated the claimant until November 1992 when he referred her to Dr. Kahn.
Dr. Kahn diagnosed the claimant as suffering from fibromyalgia, cumulative trauma syndrome in both arms and hands, reflex sympathetic dystrophy, moderate depression and insomnia, all of which he opined were work-related. The claimant testified "without contradiction" that as a result of her injuries she is severely restricted in the use of each hand, and that she cannot eat, bathe, dress, perform basic hygiene, or household chores without assistance.
On January 10, 1994, Dr. Kahn wrote a prescription which stated that the claimant "needs help with housework and cooking" on a daily basis. On March 17, 1995, Dr. Kahn prescribed attendant care services and housekeeping services to include help with cleaning, cooking and shopping. He also prescribed psychiatric treatment, trigger point injections, and a pain management program.
A psychiatric evaluation was completed by Dr. Bonney on April 17, 1995, who diagnosed the claimant as suffering from an organic mood disorder and depression caused by her general medical condition, chronic pain and disabling circumstances. Dr. Bonney reported that the claimant requires assistance with the activities of daily living including personal hygiene, cooking shopping, and housekeeping. Following a reexamination on September 21, 1995, Dr. Bonney reported that the claimant's history suggested a need for assistance with her usual daily activities including bathing.
Under these circumstances, the ALJ determined that housekeeping and attendant care services are reasonable and necessary to cure or relieve the claimant from the effects of the industrial injuries. The ALJ also expressly found that housekeeping and attendant care services enable the claimant to obtain medical care or treatment. Therefore, the ALJ ordered the respondents to provide attendant care services and housekeeping services to include cleaning, cooking and shopping, three times each week for a total of ten house per week, retroactive to January 10, 1994. The ALJ also ordered the respondents to provide a chronic pain program, trigger point therapy, psychiatric treatment, and additional temporary total disability benefits.
I.
As argued by the respondents housekeeping services are not a compensable medical benefit unless the services are "incidental" to the expense of providing reasonable and necessary medical, nursing or attendant care . Country Squire Kennels v. Industrial Claim Appeals Office, 899 P.2d 362 (Colo.App. 1995). In Country Squire Kennels the court concluded that the term "incidental to" requires proof that housekeeping services "enable the claimant to obtain medical care or treatment" or, are a "minor concomitant" to providing medically necessary treatment.
The determination of whether a particular service is incidental to the expense of providing reasonable and necessary treatment is a question of fact for the ALJ. See Bellone v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. No. 96CA2079, June 26, 1997); Atencio v. Quality Care, Inc., 791 P.2d 7 (Colo.App. 1990). Consequently, we may not disturb the ALJ's determination if supported by substantial evidence and plausible inferences drawn from the record. Section 8-43-301(8), C.R.S. (1996 Cum. Supp.).
The respondents do not dispute the claimant's need for attendant care. Furthermore, there is substantial evidence in the claimant's testimony to support the ALJ's finding that medically prescribed housekeeping services enable the claimant to obtain medical treatment. See (Tr. p. 42).
The claimant stated that she is unable to dress, bathe or eat without assistance, and requires assistance with grocery shopping, and cleaning the dishes. Because eating normally requires grocery shopping, and cleaning the dishes, it follows that the prescribed housekeeping services enable the claimant to secure medically necessary attendant care.
Similarly, insofar as the claimant must leave her home to obtain trigger point injections, psychiatric care and participate in a pain management program, the claimant will necessarily have to bathe, dress and eat to secure the treatment. Thus, both the attendant care and housekeeping services enable the claimant to obtain prescribed medical treatment. See Industrial Commission v. Pacific Employers, 120 Colo. 373, 209 P.2d 980 (1949) (room and board expenses allowed for claimant to "access the site of treatment"); Sigman Meat Co. v. Industrial Claim Appeals Office, 761 P.2d 265 (Colo.App. 1988) (travel expenses enabled injured worked to access medical treatment).
Moreover, the ALJ's findings reflects her implicit determination that the prescribed housekeeping services directly relate to the claimant's personal needs, and are relatively minor in comparison to the other care and treatment the claimant requires. This is a plausible inference from the fact that the claimant needs attendant care and substantial, further medical treatment. Therefore, the ALJ's findings support her determination that the prescribed housekeeping services are a compensable medical benefit.
As a result, the facts of this case are distinguishable from Valdez v. Gas Stop, 857 P.2d 544 (Colo.App. 1993), and Country Squire Kennels v. Industrial Claim Appeals Office, supra where housekeeping services were denied. Unlike this case, the claimant in Valdez requested housekeeping services but no attendant care services. Consequently, the prescribed housekeeping services were not central to that claimant's physical health or incidental to any medically necessary attendant care services. Similarly, Country Squire Kennels v. Industrial Claim Appeals Office, supra, involved a request for housekeeping services but no attendant care services were prescribed, and thus, the court held that the housekeeping services were not compensable.
In contrast, this case is more akin to the facts in Atencio v. Quality Care, Inc., supra, where the treating physician prescribed attendant care and housekeeping services for a claimant who was unable to bathe, dress, perform home health care, sanitary functions or any household chores without assistance. 791 P.2d at 9. The employer did not contest the claimant's need for attendant care. Consequently, the Atencio court concluded that attendant care and prescribed housekeeping services were both compensable medical benefits. See also Edward Kraemer Sons, Inc. v. Downey, 852 P.2d 1286 (Colo.App. 1992) (wife of paraplegic receiving medically prescribed attendant care was entitled to compensation for her services including "ordinary housekeeping chores").
II.
However, the respondents argue that even if the claimant is entitled to housekeeping and attendant care services, the ALJ erroneously awarded these benefits retroactive to January 10, 1994. The respondents contend that there is no evidence the claimant needed attendant care before September 21, 1995. We disagree.
Although not a model of clarity, the ALJ's findings reflect her determination that attendant care services have been medically necessary for the claimant since January 10, 1994, and this finding is supported by substantial evidence in the record. Although the claimant testified that she has only required assistance eating and bathing for one and one-half years, she also stated that she has been dependent on her daughter for help performing the activities of daily living including personal hygiene since July 1992. (Tr. pp. 37, 38, 46). The ALJ implicitly resolved the conflict by crediting the claimant's testimony that she has needed and has been receiving attendant care from her daughter since at least January 10, 1994. See Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968) ( ALJ may credit all, part, or none of a witness' testimony).
Furthermore, the claimant's testimony is buttressed by Dr. Kahn's medical reports. At the time of his original examination in December 1992, and again on October 18, 1993 Dr. Kahn noted the claimant's complaints of worsening pain. On January 10, 1994 Dr. Kahn recommended that the claimant receive assistance in meal preparation, and by February 21, 1994 Dr. Kahn reported that the claimant "is unable to do any type of activity." Therefore, we may not disturb the ALJ's award of medical benefits.
III.
On the issue of temporary disability, the ALJ found that Dr. Quick determined the claimant to be at maximum medical improvement (MMI) in May 1993. However, the ALJ found that Dr. Kahn and not Dr. Quick was the authorized treating physician providing primary care as of May 1993. Therefore, the ALJ determined that the respondents were precluded from terminating the claimant's temporary disability benefits based upon Dr. Quick's finding of MMI. Further, the ALJ found that Dr. Kahn has not released the claimant to return to work or determined the claimant to be at MMI, and thus, the ALJ found that claimant is entitled to ongoing temporary disability benefits.
The ALJ also found that even if Dr. Quick's finding of MMI was sufficient to trigger the independent medical examination (IME) provisions of § 8-42-107(8)(b), C.R.S. (1996 Cum. Supp.), the claimant overcame by "clear and convincing evidence" the IME physician's finding that the claimant reached MMI on June 7, 1994. Therefore, the ALJ ordered the respondents to pay temporary total disability benefits retroactive to June 7, 1994, the date benefits were terminated in accordance with the IME physician's finding of MMI.
On appeal the respondents contend that they had no notice the ALJ would determine the identity of the primary care physician because it was not an endorsed issue. Therefore, the respondents argue that the ALJ denied their right to due process of law in finding that Dr. Kahn was the primary care physician as of May 1993. We are not persuaded.
The record indicates that the issue was tried by consent. See Cody v. Fraser, 122 Colo. 252, 222 P.2d 422 (1950) (issues not plead may be tried by consent). On direct examination the claimant testified that she was referred to Dr. Kahn by Dr. Quick. (Tr. p. 12). During cross-examination by respondents' counsel the claimant added that she did not treat with Dr. Quick after he referred her to Dr. Kahn. (Tr. p. 56). The claimant further testified without objection, that Dr. Kahn has been her primary treating physician since 1992. (Tr. pp. 12, 18). Consequently, the respondents' due process rights were not implicated. See Robbolino v. Fischer-White Contractors, 738 P.2d 70 (Colo.App. 1987) (failure to object was waiver of objection to litigation of issue).
IT IS THEREFORE ORDERED that the ALJ's order dated March 21, 1996, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Kathy E. DeanNOTICE 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. (1996 Cum. Supp.).
Copies of this decision were mailed July 18, 1997 to the following parties:
Rebecca Reeves, 1012 Box Elder, Pueblo, CO 81004
Chet's Markets, Inc., 27050 Highway 50 East, Pueblo, CO 81006-9738
Colorado Compensation Insurance Authority, Attn: Curt Kriksciun, Esq., (Interagency Mail).
Robert S. Fisher, Esq., 105 S. Vermijo, Ste. 600, Colorado Springs, CO 80903, (For the Claimant).
Douglas Thomas, Esq., 1700 Broadway, #1700, Denver, CO 80209-1701, (For the Respondents).
BY: ________________________________