W.C. No. 4-192-261Industrial Claim Appeals Office.
November 18, 1997
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Wheelock (ALJ) insofar as the ALJ required them to provide a driver to transport the claimant to and from his medical appointments. The respondents contend that the ALJ’s order denied them due process of law. We agree, and therefore, reverse.
On review, the following facts are undisputed. The claimant resides in Lamar, Colorado and must travel to Colorado Springs, Colorado to obtain treatment for the industrial injury. Due to the effects of the injury, the claimant cannot drive himself to and from his medical appointments. Consequently, the claimant’s wife has been driving him.
The respondents reimburse the claimant for mileage, the cost of a motel room when he stays overnight in Colorado Springs for treatment, and the cost of the claimant’s meals in Colorado Springs. The claimant requested that the respondents also pay for his wife’s meals in Colorado Springs, but the respondents refused.
The claimant then sought a hearing on “reasonably necessary” medical benefits. At the commencement of the hearing, claimant’s counsel framed the issue as “whether Respondents are responsible for paying for, or reimbursing claimant for the cost of his wife’s meals.” (Tr. p. 3).
The ALJ found that the meal expenses of the claimant’s wife do not enable the claimant to obtain treatment in Colorado Springs. Therefore, the ALJ determined that the respondents are not required to pay for the meals of the claimant’s wife in Colorado Springs. However, the ALJ also found that the claimant cannot obtain prescribed medical treatments unless he is transported to and from Lamar, and that the cost of a driver is incidental to the cost of providing medical treatment. Therefore, the ALJ ordered the respondents to provide the claimant with a driver so that he can travel to and from Lamar to attend his weekly medical appointments.
Due process requires that, where an administrative determination turns on questions of fact, the parties must be given fair notice of the evidence to be submitted and considered, and afforded an opportunity to confront adverse witnesses and present evidence and arguments in support of their positions Hendricks v. Industrial Claim Appeals Office, 809 P.2d 1076
(Colo.App. 1990). It is for this reason that Rule of Procedure VIII(A)(5), 7 Code Colo. Reg. 1101-3 at 21, prohibits a party from adding an “issue” after the filing of the application or response, “except on agreement of all parties, or approval of an administrative law judge for good cause shown.”
Nevertheless, a party may waive objection to consideration of an unendorsed issue by its conduct at the hearing. If a party does not object to consideration of the issue, and proceeds to litigate it through the presentation of evidence and cross-examination, a waiver may be found. Robbolino v. Fischer-White Contractors, 738 P.2d 70 (Colo.App. 1987). However, a finding of waiver is not proper unless the circumstances reflect a voluntary, knowing and intelligent surrender of the right to notice. See Johnson v. Industrial Commission, 761 P.2d 1140
(Colo. 1988).
Here, claimant’s counsel expressly limited the scope of the hearing to the issue of the respondents’ liability for meals. There was no indication, either in the pleadings or in counsel’s statements to the ALJ, that the claimant was seeking a substitute driver.
However, the claimant contends that the question of whether the respondents should provide a driver to transport him to his medical appointments was tried by consent, and that the respondents waived any objection to the ALJ’s consideration of the issue. We disagree.
Admittedly, the claimant testified that he could not get to and from his medical appointments without his wife’s assistance. (Tr. p. 10). However, at no time during the hearing did the claimant indicate that his wife would not drive him to his medical appointments if her meals were not reimbursed. Neither did the claimant assert a claim for alternative transportation or a “driver.” In fact, the claimant testified that he anticipated his wife would continue to drive him to and from his medical appointments, even if she was not reimbursed for her meals, because he had no “other choice.” (Tr. p. 11).
Contrary to the claimant’s argument, this testimony is relevant to whether the cost of meals purchased by the claimant’s wife in Colorado Springs is incidental to the claimant’s ability to access out of town medical treatment. Accordingly, we are not persuaded that this testimony put the respondents on notice that the claimant was seeking an order requiring them to provide a new driver. Under these circumstances, we agree with the respondents that they were not afforded adequate notice that the ALJ would consider whether it was reasonably necessary to provide alternative transportation for the claimant to attend his medical appointments.
Moreover, had the respondents known that the claimant was seeking alternative transportation arrangements, they may have presented evidence concerning the cost of other means of transportation. Consequently, we must set aside the award of a driver.
In reaching this disposition, we have not considered the letter dated July 19, 1996, which was attached to the respondents’ brief. See Voisinet v. Industrial Claim Appeals Office, 757 P.2d 171 (Colo.App. 1988) (appellate review is limited to the record before the ALJ and evidence submitted for the first time on review will not be considered). Furthermore, in light of this disposition, we need not consider the respondents’ further argument that, even if the issue was properly before the ALJ, her findings of fact do not support the order requiring them to provide a driver.
IT IS THEREFORE ORDERED that the ALJ’s order dated December 26, 1996, is reversed insofar as it requires the respondents to provide a driver to transport the claimant to and from Lamar to attend his medical appointments.
INDUSTRIAL CLAIM APPEALS PANEL
__________________________________ David Cain
__________________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacate theOrder is commenced in the Colorado Court of Appeals, 2 East 14thAvenue, Denver, Colorado 80203, by filing a petition to reviewwith the court, with service of a copy of the petition upon theIndustrial Claim Appeals Office and all other parties, withintwenty (20) days after the date the Order was mailed, pursuant to§§ 8-43-301(10) and 307, C. R. S. 1997.
Copies of this decision were mailed November 18, 1997 to the following parties:
Ronald R. Crespin, 3405 Memorial Dr., #3, Lamar, CO 81052
Autozone, Inc., 2455 E. Platte Ave., Colorado Springs, CO 80909-6038
Dawn R. Kaup, Lumbermens Mutual Casualty Co., P.O. Box 5347, Denver, CO 80217-5347
Steven R. Waldmann, Esq., 303 S. Circle Dr., Ste. 203, Colorado Springs, CO 80910-3000 (For the Claimant)
Ted A. Krumreich, Esq., 1225 17th St., 28th Flr., Denver, CO 80202 (For the Respondents)
By: __________________________