W.C. No. 4-262-405Industrial Claim Appeals Office.
August 15, 1996
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Gandy (ALJ) which ordered them to provide the claimant with an ergonomic chair. We affirm.
The claimant sustained a compensable back injury. As a result, the claimant testified that she often experiences low back pain, particularly when sitting. (Tr. pp. 6-7).
The claimant’s treating chiropractor prescribed an “ergonomically correct chair” because, without the chair, the claimant “will continue to experience exacerbations and relapses and stability of the injured area will not occur.” The claimant’s orthopedist, Dr. Smith, opined that the claimant needs a “decent chair,” though not necessarily an “ergonomic chair.” In September 1995, Dr. Smith suggested that the claimant purchase an ergonomic chair and “get comp to pay for it after the fact, if it truly improves her problem.”
The claimant tested an ergonomic chair by sitting in it for one hour and forty-five minutes. Prior to that time, the claimant had only been able to sit for thirty minutes at a time.
Under these circumstances, the ALJ concluded that respondents are liable for purchasing an ergonomic chair. Specifically, the ALJ found that the chair relieves “the effects of the compensable injury and is of therapeutic benefit” to the claimant. The ALJ also found that the chiropractor’s opinion establishes that an ergonomic chair will have “curative and relieving effects” by stabilizing the claimant’s back.
On review, the respondents contend that the ALJ erred in ordering them to purchase an ergonomic chair. The respondents argue that an ergonomic chair is not a “medical apparatus” within the meaning of § 8-42-101, C.R.S. (1995 Cum. Supp.). Rather, the respondents assert that an ergonomic chair is analogous to the medically prescribed snowblower which the court of appeals found is not a “medical apparatus.” See ABC Disposal Services v. Fortier, 809 P.2d 1071 (Colo.App. 1990). We disagree with the respondents’ argument.
As the claimant argues, we have previously determined that the question of whether an “ergonomic chair” is compensable as a “medical apparatus” is one of fact for resolution by the ALJ Kilker v. Colorado West Regional Center, W.C. No. 3-102-590, November 21, 1995. In Kilker, we held that, if the evidence establishes that an ergonomic chair has the direct therapeutic benefit of relieving pain, the evidence could support a determination that the chair is a compensable medical benefit. We distinguished Fortier on the ground that the snowblower did not have any direct therapeutic benefit but merely provided “an easier method . . . to perform a household chore.”See also, Anderson v. Metro Building Products, Inc.,
W.C. No. 4-100-107, March 25, 1993.
The respondents’ argument notwithstanding, there is substantial evidence in the record to support the ALJ’s finding that the ergonomic chair would have a direct therapeutic benefit for the claimant. The claimant’s testimony, and well as the medical evidence cited by the ALJ, supports the inference that the ergonomic chair would relieve the claimant of pain which she would otherwise experience while performing the ordinary daily activity of sitting. This is not a case where the chair was prescribed simply to make a particular activity easier or to avoid an injury which might occur. Cf. Bogue v. SDI Corp., ___ P.2d ___ (Colo.App. No. 95CA1241, May 16, 1996) (wheelchair accessible van not a medical apparatus where awarded to render the claimant more “independent” and avoid risks associated with public transportation).
It is true that some evidence in the record might have supported a contrary finding and conclusion. However, this fact affords no basis for relief on appeal. May D F v. Industrial Claim Appeals Office, 752 P.2d 589 (Colo.App. 1988); City and County of Denver v. Industrial Commission, 682 P.2d 513 (Colo.App. 1984) (evidence supported finding that hot tub relieved symptoms, and therefore, was a medical apparatus).
The claimant has requested imposition of attorney fees under § 8-43-301(14), C.R.S. (1995 Cum. Supp.). The claimant reasons that the Kilker decision is directly on point, and therefore, the respondents interposed this appeal simply for purposes of delay. We reject this argument.
Generally speaking, attorney fees need not be imposed against a party which advances a legal theory based on a “unique factual situation.” General Cable Co. v. Industrial Claim Appeals Office, 878 P.2d 118 (Colo.App. 1994). As argued by the respondents, no appellate court of this state has issued a definitive decision concerning whether or not, and under what circumstances, an ergonomic chair may be considered a “medical apparatus” for purposes of § 8-42-101(1). Considering the absence of any such decision, and the fact that the definition of a “medical apparatus” has been the subject of substantial litigation, we decline to award attorney fees.
IT IS THEREFORE ORDERED that the ALJ’s order dated January 20, 1996, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL ___________________________________ David Cain ___________________________________ Dona Halsey
NOTICE
This Order is final unless an action to modify orvacate the Order is commenced in the Colorado Court of Appeals, 2East 14th Avenue, Denver, Colorado 80203, by filing a petition toreview 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 the Order was mailed,pursuant to §§ 8-43-301(10) and 307, C. R. S. (1995 Cum.Supp.).
Copies of this decision were mailed August 15, 1996 to the following parties:
Elizabeth C. Chapman, 730 Ponderosa Dr., #15, Ft. Collins, CO 80521
Mountain Flyers Aviation, Inc., 4824 Earhart Rd., Loveland, CO 80538-8901
Colorado Compensation Insurance Authority, Attn: Curt Kriksciun, Esq. (Interagency Mail)
Douglas A. Thomas, Esq., 1700 Broadway, Ste. 1700, Denver, CO 80290-1701 (For the Respondents)
Ira A. Sanders, Esq., 314 DeFrance Court, Golden, CO 80401 (For the Claimant)
By: _________________________