W.C. No. 4-156-077Industrial Claim Appeals Office.
November 8, 1996
FINAL ORDER
The respondents seek review of a final order of Chief Administrative Law Judge Felter (ALJ). The respondents contend that the ALJ erred insofar as he required the respondents to provide child care services as a form of medical benefits. We agree, and therefore, reverse.
The essential facts are undisputed. The claimant is a single mother of two children whose ages are 19 months and 7 years. On September 17, 1992, the claimant suffered a compensable closed head injury. As a result of the injury the claimant suffers from seizures, extreme fatigue, depression, mental confusion and a sleep disorder.
Dr. Josephs, the claimant’s treating neuropsychologist, reported that when the claimant becomes overwhelmed or overly fatigued she is more susceptible to seizures. Dr. Josephs recommended that the claimant have “a program in which she is able to pace herself, taking frequent scheduled rest breaks, allows her not to become overwhelmed, overly fatigued and depressed.” Both Dr. Josephs and Dr. McIntosh, the claimant’s treating neurologist, prescribed child care to allow the claimant to attend medical appointments and rest.
The respondents admitted liability for travel and child care expenses incurred by the claimant to attend authorized medical appointments. The claimant also requested child care services for, twenty hours per week so as to obtain the rest prescribed by her attending physicians.
The ALJ determined that, under the facts of this claim the disputed child care services constitute a medical service reasonably necessary to cure or relieve the effects of the industrial injury and the resulting seizure disorder. In support, the ALJ found that it was “virtually impossible to extricate the need for child care from the prescription for treating this closed head injury.” (Tr. pp. 25-26); 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). Therefore, in an order dated April 24, 1996, the ALJ directed the respondents to provide up to twenty hours per week of child care services, including the child care services for which the respondents admitted liability.
Subsequent to the entry of the ALJ’s order, and the filing of appellate briefs in this matter, the court issued its opinion in Kuziel v. Pet Fair, Inc., ___ P.2d ___ (Colo.App. No. 95CA2036, October 24, 1996), where it denied a claim for child care services. We are bound by published decisions of the court of appeals. C.A.R. 35(f). Furthermore, we conclude tha Kuziel is dispositive of the issue presented here.
The claimant in Kuziel needed child care services for one week while she was hospitalized for treatment of the industrial injury. Instead of hiring a babysitter, the claimant purchased an airline ticket for her sister to fly out and stay with the claimant’s minor children. The ALJ found that the $300 cost of the airline ticket was a reasonable amount for child care during the hospitalization, and therefore, ordered the insurer to reimburse the claimant for the ticket.
On appeal, the Kuziel court cited Country Squire Kennels v. Tarshis, 899 P.2d 362 (Colo.App. 1995), for the proposition that a compensable medical benefit must be either “medical in nature” or “incidental” to obtaining necessary medical treatment. Relying on Hillen v. Tool King, 851 P.2d 289 (Colo.App. 1993), the Kuziel court held that the child care services necessitated by the claimant’s hospitalization were not a medical in nature “because they did not relieve the symptoms or effects of the injury and were not directly associated with the claimant’s physical needs.”
The court also determined that the child care services were not “incidental” to the claimant’s medical treatment because the services were not provided as part of an “overall home health care program designed to treat the claimant’s condition.” In support, the court cited Edward Kraemer Sons, Inc. v. Downey, 852 P.2d 1286 (Colo.App. 1992).
In Edward Kraemer Sons, Inc. v. Downey supra, the court indicated that the term “home health care program” refers to a program which includes supervision or attendant care services to the injured worker. Specifically, i Kraemer, medical benefits in the form of attendant care services from the claimant’s wife were a compensable medical benefit because the claimant was paralyzed from the chest down, confined to a wheelchair, and essentially required constant supervision. See also Country Squire Kennels v. Tarshis, 899 P.2d 362 (Colo.App. 1995) (prescribed housecleaning services are not compensable medical benefits unless “incidental” to medical, nursing or attendant care).
Further, the Kuziel court determined that child care services provided during the claimant’s hospitalization were not “incidental” 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 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.”
Consequently, the Kuziel court affirmed our order which reversed the ALJ’s award of child care services during the claimant’s hospitalization.
Here, the ALJ determined that the requested child care services were “medical in nature.” However, in Hillen v. Tool King, supra, the court held that services which do not cure or relieve the claimant from the symptoms of the industrial injury, but merely relieve the claimant of the rigors of certain household tasks, such as yard work, are not medical in nature.
In this matter, the disputed child care services do not directly cure or relieve the claimant from the effects of the industrial injury. Rather it is the “rest” which treats the symptoms of the injury. Under these circumstances, the disputed child care services are, at best, “incidental” to the receipt of medical treatment. However, there is no prescription for attendant services in this matter. Therefore, the disputed child care services are not “incidental” medical treatment because they are not part of an overall home health care program.
Furthermore, Kuziel clearly reflects the court’s policy to disallow “routine living expenses,” including child care, even if such expenses assist the claimant in obtaining or receiving medical treatment. Here, as in Kuziel, the claimant admitted that prior to the industrial injury she incurred child care expenses for a forty hour work week. (Tr. pp. 18- 19). It follows that as in Kuziel the disputed child care services constitute a routine living expense which is not a compensable medical benefit.
We perceive no appreciable difference between the facts i Kuziel and the circumstances presented here. Therefore, we are compelled to reverse the ALJ’s award of child care services.
In view of our disposition it is unnecessary to address the respondents’ further arguments.
IT IS THEREFORE ORDERED that the ALJ’s order dated April 24, 1996, is reversed insofar as it requires the respondents to provide child care services beyond the services for which the respondents admitted liability.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify orvacate this Order is commenced in the Colorado Court of Appeals,2 East 14th Avenue, Denver, CO 80203, by filing a petition forreview with the court, with service of a copy of the petitionupon 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 November 8, 1996 to the following parties:
Samantha Lederman (Bellone), 2005 W. Plum, #312, Ft. Collins, CO 80521
Bailey Co., 601 Corporate Circle, Golden, CO 80401-5622
Wausau Insurance Companies P.O. Box 101517, San Antonio, TX 78201-9517
Stephen J. Jouard, Post Office Drawer J, Ft. Collins, CO 80522 (For the Claimant)
William Sterck, Esq., 679 Grant St., Denver, CO 80203 (For the Respondents)
BY: _______________________