W.C. No. 4-445-052.Industrial Claim Appeals Office.
January 9, 2004.
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Henk (ALJ) requiring them to reimburse the claimant for $27.16 in mileage expenses which the claimant incurred to obtain prescription drugs. The respondents’ primary argument is that the award is contrary to the provisions of the Medical Fee Schedule. We affirm.
In this case the respondents have admitted liability for reasonable and necessary medical treatment after maximum medical improvement. The parties stipulated that the claimant’s authorized treating physician has prescribed certain medications which are reasonable and necessary to relieve the claimant’s pain.
Between July 2002 and March 25, 2003, the claimant traveled 97 miles to obtain the prescriptions from a pharmacy located in a King Soopers grocery store. This store is located approximately two and one half miles from the claimant’s home, and contains the nearest pharmacy. The claimant does his regular grocery shopping at another store located further from his home. This store also has a pharmacy.
At the hearing the respondents argued the claimant is not entitled to mileage for procuring the prescriptions because the Medical Fee Schedule does not provide for such payments. In support of this contention, the respondents relied on the provision of the fee schedule currently codified at Rule of Procedure XVIII (F)(5), 7 Code Colo. Reg. 1101-3 at 113. Insofar as pertinent the rule states that the “payer shall reimburse the injured worker for reasonable and necessary mileage expenses for travel to and from medical appointments.” The respondents reasoned that under the “plain meaning” of the rule travel to obtain prescription drugs is not a “medical appointment” and is not compensable.
However, the ALJ disagreed with the respondents’ analysis. The ALJ found that § 8-42-101(1)(a), C.R.S. 2003, requires the respondents to pay for expenses which are incidental to obtaining reasonable and necessary medical treatment. Further, because the prescriptions were stipulated to be reasonable and necessary treatment, the ALJ held the respondents liable for the mileage expenses because they were incidental to obtaining the prescriptions. The ALJ rejected the respondents’ argument concerning the fee schedule because she concluded that Rule XVIII (F)(5) is “silent” on liability for mileage fees incurred to obtain prescription drugs.
On review, the respondents reiterate the argument that the plain meaning of Rule XVIII (F)(5) precludes reimbursement for mileage to obtain drugs because a trip to the pharmacy does not constitute a “medical appointment.” We, like the ALJ, reject this contention.
In Daughtry v. King Soopers, Inc., W.C. No. 3-837-001 (January 17, 1996), an ALJ denied reimbursement for mileage expenses which the claimant incurred to obtain medically prescribed drugs. In setting aside the ALJ’s order, we expressly held that drugs prescribed by a physician are a form of medical “supply” which § 8-42-101(1)(a) requires respondents to provide if reasonable and necessary to cure or relieve the effects of the industrial injury. Further, we stated that we could “find no statutory basis for the ALJ’s apparent distinction between travel for the purpose of obtaining treatment by a physician and travel for the purpose of obtaining drugs (or other therapy) prescribed by a physician.” Moreover, citing Industrial Commission v. Pacific Employers Insurance Co., 120 Colo. 373, 209 P.2d 908 (1949), Sigman Meat Co. v. Industrial Claim Appeals Office, 761 P.2d 265 (Colo.App. 1988), and Country Squire Kennels v. Tarshsis, 899 P.2d 362 (Colo.App. 1995), we held that mileage expenses incurred to obtain prescribed drugs are compensable if “incident” to obtaining the prescribed drugs. We described “incidental” mileage expenses as those “which would not have been incurred but for the industrial injury.” Finally, we held that the question of whether particular mileage expenses are reasonable and necessary is a question of fact for determination by the ALJ.
The respondents’ arguments concerning Rule XVIII (F)(5) do not persuade us to depart from our holding in the Daughtry case. As noted, Daughtry is based on an interpretation of the statute itself, and relevant cases which interpret the statute.
It is well established that a rule adopted by the Director of the Division of Workers’ Compensation is not the equivalent of a statute, and a rule is void to the extent it is inconsistent with the authorizing statute. City of Englewood v. Industrial Claim Appeals Office, 954 P.2d 640
(Colo.App. 1998); Riley Family Trust v. Hood, 874 P.2d 503 (Colo.App. 1994). If we were to construe Rule XVIII (F)(5) in the manner suggested by the respondents, it would be void for the reasons set forth above. However, that result may be avoided because we agree with the ALJ the rule is properly read as silent on the question of liability for mileage expenses incurred to obtain prescription drugs, and certainly cannot be read as an express prohibition against compensation for such expenses. We reached much the same conclusion in Daughtry where we stated that because “the claimant’s right to compensation [for mileage to procure prescription drugs] is inherent in § 8-42-101(1)(a), it is immaterial whether the Rules of Procedure address the reimbursement issue.”
Insofar as the respondents argue the mileage expenses were not reasonable and necessary because the claimant could have procured the drugs during the shopping trips to his regular grocery store, we disagree. As noted above, the question of whether particular mileage expenses are reasonable and necessary is a question of fact for the ALJ Kroupa v. Industrial Claim Appeals Office, 53 P.3d 1192 (Colo.App. 2002). Consequently, we must uphold the ALJ’s determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2003. This standard of review requires us to defer to the ALJ’s credibility determinations, resolution of conflicts in the evidence, and plausible inferences drawn from the record. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (2002). Further, the ALJ may resolve inconsistencies within the testimony of an individual witness by crediting part or none of the testimony. Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968).
Here, the ALJ recognized the claimant could have obtained the drugs at the King Soopers where he did his grocery shopping. Nevertheless, the ALJ found the claimant’s trips to the other grocery store, which was nearer to his home, were reasonable and necessary. (Findings of Fact 4-5). Thus, we conclude the ALJ inferred from the claimant’s testimony that the claimant’s need for medication did not necessarily coincide with his regular grocery shopping days, and he “picked the other store [to purchase drugs] because it was closer and a lot of times I’m in agony.” (Tr. P. 13). Although some of the claimant’s testimony might have permitted a contrary conclusion, the ALJ apparently resolved the inconsistency against the respondents.
IT IS THEREFORE ORDERED that the ALJ’s order dated September 3, 2003, 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, Colorado 80203, by filing a Petition to Review with the Court, within twenty (20) days after the date this Order was mailed, pursuant to §8-43-301(10) and § 8-43-307, C.R.S. 2003. 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 order were mailed to the parties at the addresses shownbelow on January 9, 2004 by A. Hurtado.
Theodore Kent Anderson, 5380 Nolan St., Arvada, CO 80002
United Airlines/DENFF, 8900 Pena Blvd., Denver, CO 80249
Alice Kasey Troutman, Gallagher Bassett Services, Inc., P. O. Box 4068, Englewood, CO 80155-4068
John A. Sbarbaro, Esq., 226 W. 12th Ave., Denver, CO 80204-3625 (For Claimant)
John H. Sandberg, Esq., 3595 S. Teller St., #407, Lakewood, CO 80235 (For Respondents)