W.C. No. 4-355-764.Industrial Claim Appeals Office.
September 2, 2003.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Stuber (ALJ) which denied medical benefits for prescribed “essential services.” We affirm.
The claimant suffered compensable injuries to her neck and upper extremities. In 2001 the claimant underwent cervical surgery for treatment of the industrial injuries. The claimant testified that for 16 weeks following the surgery, her husband provided her assistance with “household chores,” dressing, and bathing. (Tr. p. 29). The claimant also testified that her husband prepared meals and performed general housekeeping services, which continued beyond 16 weeks. (Tr. pp. 34-36). Neither the claimant nor her husband ever billed these services to the insurer.
Dr. Bryne issued two prescriptions for “essential services.” The first prescription dated November 27, 2001, stated: “In home essential service 1x/wk for 2 wks.” The second prescription dated January 21, 2002, stated: “In Home essential services 1x/week for 8 weeks.”
The respondents received the prescriptions from Dr. Bryne, but took no action to authorize or deny liability for “essential services.” Consequently, the claimant requested an order requiring the respondents to pay for the medically-prescribed essential services. The claimant also argued that the respondents’ inaction violated the Rules of Procedure, Part XVI(J)(2), 7 Code Colo. Reg. 1101-3 at 80. Accordingly, the claimant contended the respondents waived the right to contest authorization for the essential services as provided by Rule XVI(J)(5).
Relying on our conclusions in Wilkens v. First Lutheran Church, W.C. No. 4-369-843 (May 17, 2001), the ALJ found it was Dr. Bryne’s responsibility to properly request prior authorization for essential services. However, the ALJ found Dr. Bryne failed to complete the prior authorization process. Therefore, the ALJ determined the respondents’ inaction did not violate Rule XVI(J)(2) and the respondents did not waive their right to dispute liability for the essential services.
In addition, the ALJ found the services provided by the claimant’s husband were “almost solely housekeeping services that are neither medical treatment nor incidental to obtaining medical treatment.” Further the ALJ determined the claimant failed to provide any itemization of amounts owed by the insurer for compensable essential services. Therefore, the ALJ denied payment for the disputed services.
On appeal the claimant contends the ALJ misconstrued the requirements of Rule XVI(J)(2). We disagree.
Initially, we note that the claimant’s Designation of Record includes the “entire files maintained by the Division of Workers’ Compensation and Division of Administrative Hearings.” The record transmitted to us on appeal apparently does not include the complete Division of Workers’ Compensation file and there is no evidence in the record which suggests the claimant requested the ALJ to consider the entire Division of Workers’ Compensation file as part of the evidentiary record for the hearing. See City of Boulder v. Dinsmore, 902 P.2d 925 (Colo.App. 1995); Rules of Procedure, Part VIII(A)(6), 7 Code Colo. Reg. 1101-3 at 22. Further, our review is limited to the evidentiary record before the ALJ. Consequently, we have not obtained or considered the Division of Workers’ Compensation file, and have restricted our review to the record made at the hearing.
Rule XVI(I)(1), 7 Code Colo. Reg. 1101-3, provides that prior authorization for payment shall be requested “by the provider” when prior authorization is required by the medical treatment guidelines or medical fee schedule. The parties concede prior authorization was required for the essential services in dispute.
Rules XVI(J)(1) and (2) require that where the insurer contests a request for prior authorization, the insurer shall, within seven business days of the date authorization was requested, notify the provider and the parties in writing of the basis for the contest. Under Rule XVI(J)(5) the insurer’s failure to comply with Rule XVI(J)(1) or (2) shall be deemed authorization for payment of the requested treatment.
However, as indicated in Rule XVI(I)(1) “prior authorization shall be requested by the provider (emphasis added). Rule XVI(B)(11) defines the term “provider” as the person or entity providing authorized health care services to the injured worker. Rule XVI(E) defines “health care providers” as physicians or other specified health care specialists. Further, Rule XVI(I)(5) provides that to “complete” a prior authorization request, the provider shall “explain the medical necessity of the services requested and provide relevant supporting medical documentation.” Under these circumstances, the claimant’s arguments do not persuade us to depart from our conclusion in Wilkens that it is the prescribing physician’s duty to request prior authorization for treatment.
Here, Dr. Bryne prescribed the essential services and the record supports the ALJ’s finding that Dr. Bryne never submitted anything to the insurer other than the brief prescription scripts. Under these circumstances, the ALJ did not err in finding the time period provided by Rules XVI(J)(1) and (2) in which the respondents were required to contest prior authorization for the prescribed services was not triggered and the respondents are not deemed to have authorized the services.
The claimant contends our interpretation of Rule XVI(J) punishes the claimant for the physician’s failure to fulfill his obligations. However, nothing in Rule XVI(J) precluded the claimant from requesting Dr. Bryne complete the prior authorization process.
Moreover, in view of the ALJ’s finding that Dr. Bryne failed to complete a request for prior authorization of essential services, it is immaterial whether the insurer denied authorization for medical or non-medical reasons. Consequently, we do not address the claimant’s contention that the adjustor had sufficient information but did not formally deny the request for prior authorization because he believed essential services were not a compensable medical benefit.
The claimant also contends the ALJ applied the wrong legal standard in refusing to order payment for her husband’s services. We disagree.
Section 8-42-101(1)(a), C.R.S. 2002, requires the employer to provide medical treatment which is reasonable and necessary to “cure and relieve the employee from the effects of the injury.” Colorado Compensation Insurance Authority v. Nofio, 886 P.2d 714 (Colo. 1994). The courts have held that to be a compensable medical benefit, the requested service must either be medically necessary or incidental to obtaining such treatment. A service is a “medical necessity” if it cures or relieves the effects of the injury and is directly associated with the claimant’s physical needs. Kuziel v. Pet Fair, Inc., 931 P.2d 521 (Colo.App. 1996); Hillen v. Tool King, 851 P.2d 289 (Colo.App. 1993). A service is “incidental” to treatment if it “enables” the claimant to obtain medical treatment or is a “minor concomitant” to necessary medical treatment. Country Squire Kennels v. Tarshis, 899 P.2d 362, 364 (Colo.App. 1995).
Services which have been found to be “medical in nature” include home health care services in the nature of “attendant care” if reasonably needed to cure or relieve the effects of the industrial injury. Atencio v. Quality Care, Inc., 791 P.2d 7 (Colo.App. 1990). Such services may encompass assisting the claimant with activities of daily living, including matters of personal hygiene. Suetrack v. Industrial Claim Appeals Office, 902 P.2d 854 (Colo.App. 1995). Further, it is well established that a claimant’s spouse may be compensated for nursing-type services. Edward Kraemer Sons, Inc. v. Downey, 852 P.2d 1286
(Colo.App. 1992).
The question of whether a particular service is medically necessary or incident to obtaining medical treatment is to be resolved by the ALJ based on the particular facts of the case. Bellone v. Industrial Claim Appeals Office, 940 P.2d 1116 (Colo.App. 1997); Edward Kraemer Sons, Inc. v. Downey, supra; Atencio v. Quality Care, Inc., supra.
Because the issue is factual, we must uphold the ALJ’s determinations if supported by substantial evidence in the record. Bellone v. Industrial Claim Appeals Office, supra; § 8-43-301(8), C.R.S. 2002.
Substantial evidence is probative evidence which would warrant a reasonable belief in the existence of facts supporting a particular finding, without regard to the existence of contradictory or contrary inferences. Ackerman v. Hilton’s Mechanical Men, Inc., 914 P.2d 524
(Colo.App. 1996). Furthermore, the substantial evidence standard requires that we defer to the ALJ’s credibility determinations and plausible inferences he drew from the record. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
The ALJ found the claimant’s husband performed housekeeping chores including vacuuming, laundry, changing bedding, shopping, cooking, cleaning bathrooms, watering plants, and the semi-annual cleaning of window and curtains. However, the ALJ was not persuaded the claimant sustained her burden to prove the compensable nature of these services.
Based on this record, we cannot say the ALJ was compelled to find that the housekeeping services provided by the claimant’s husband cured or relieved the effects of the injury or enabled the claimant to obtain treatment. Indeed, Dr. Byrne did not explain what type of “essential” services he was prescribing for the claimant or the number of hours per day the claimant required “essential services.” Rather, the prescription scripts merely prescribed unspecified services once per week.
The ALJ acknowledged evidence that the claimant’s husband assisted the claimant with bathing and dressing. However, the ALJ was not required to credit the claimant’s testimony that her husband was attending her “personal needs” four hours per day. See Levy v. Everson Plumbing Co., Inc., 171 Colo. 468, 468 P.2d 34 (1970); El Paso County Department of Social Services v. Donn, 865 P.2d 877 (Colo.App. 1993) (ALJ may credit all, part, or none of witness’s testimony).
In any event, the record further supports the ALJ’s finding that the claimant “did not provide any itemization of amounts that the insurer might owe for services incidental to obtaining medical treatment and not mere housekeeping services.” (See Conclusions of Law 1). In fact, the claimant did not offer any testimony concerning the reasonable value of either the housekeeping or personal care services provided by her husband. Under these circumstances, the ALJ could reasonably infer that the evidence was insufficient to determine any specific amount of liability for the disputed services.
IT IS THEREFORE ORDERED that the ALJ’s order dated February 25, 2003, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ Kathy E. Dean
______________________________ Bill Whitacre
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, CO 80203, by filing a petition for review with the Court, within twenty (20) days after the date this Order is mailed, pursuant to § 8-43-301(10) and § 8-43-307, C.R.S. 2002. 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 decision were mailed September 2, 2003 to the following parties:
Carmen J. Cross, 3526 N. Cascade Ave., #H-11, Colorado Springs, CO 80907
Microglide, Inc., 770 Wooten Rd., #109B, Colorado Springs, CO 80915-3538
Liberty Mutual Insurance Company, P. O. Box 3539, Englewood, CO 80155-3539
Steven U. Mullens, Esq., P. O. Box 2940, Colorado Springs, CO 80901-2940 (For Claimant)
David G. Kroll, Esq., 1120 Lincoln St., #1606, Denver, CO 80203 (For Respondents)
BY: A. Hurtado