W.C. No. 4-155-507Industrial Claim Appeals Office.
January 25, 2001
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Coughlin (ALJ) insofar as they were required to pay for assisted living services. We affirm.
The claimant suffered admitted industrial injuries which included a closed head injury. In October 1998 the respondents admitted liability for permanent total disability benefits.
In a final order dated September 16, 1999, ALJ Friend found that as result of the injury the claimant has cognitive and emotional disabilities which preclude her from living independently. ALJ Friend found the claimant requires assistance with her medications, hygiene, dressing, laundry, nutrition, cooking and shopping. ALJ Friend ordered the respondents to “arrange and pay for the services the Claimant requires,” either in the claimant’s home, a group home or a nursing care facility. ALJ Friend further ordered that the assisted living arrangement be acceptable to the claimant’s treating physician, Dr. Kornreich.
Through September 30, 1999, the respondents informally paid the claimant $500 per week to live with a friend in Denver. When the payments ended the claimant became suicidal. As a result, the claimant was admitted to a psychiatric hospital. At the time of her discharge, no assisted living had been arranged for the claimant in Colorado. Consequently, the claimant moved to Beverly Hills, California to reside with her son.
The ALJ found that on December 7, 1999, the respondents’ attorney wrote a letter to the claimant’s attorney which identified 5 assisted living facilities in California that were purportedly acceptable to the respondents, and the letter encouraged the claimant to investigate the facilities. One of the facilities was identified:
“Edwardian Residential Care
P.O. Box 3007
Beverly Hills, CA 90212
Telephone: 818 345-0787”
The claimant and her family investigated the facilities listed in the respondents’ letter and ultimately selected the Edwardian Residential Care facility in Beverly Hills, because it was the only Edwardian facility which had a room available. The claimant rejected the other four facilities because the locations were too far away from the claimant’s family. In January 2000, the claimant moved into the “guest house room” at the Edwardian, which can accommodate overnight guests and has no visiting hour limitations. The ALJ found the cost of the guest house room is $4600 a month (plus $400 food).
The respondents’ expert witness, Loretta Shakey, (Shakey) testified that a representative of the Edwardian quoted her a monthly rate of $2300 to $2500 for the claimant’s placement in one of their facilities, and never mentioned the Beverly Hills rate of $4600 per month. Further, Shakey criticized the care provided at the Edwardian and opined the claimant was unsafe in the guest house because it was located away from the main building.
Reanna Benefield (Benefield), the Director of the Edwardian facility denied quoting Shakey a room rate of $2300 to$2500 per month. Benefield stated the $2500 per month rate applied to co-occupancy rooms.
Dr. Kornreich opined that the Edwardian facility provided all the services required by the claimant with the advantage of being located near the claimant’s family. Dr. Kornreich stated that family visits are beneficial to the claimant and it is important the claimant reside within a reasonable distance of her family to facilitate those visits. Further, Dr. Kornreich opined the claimant has made an excellent adjustment to the Edwardian facility, and moving the claimant to another facility would be unreasonably disruptive and potentially dangerous to the claimant, given her history of suicidal ideation. Therefore, Dr. Kornreich approved the Edwardian placement and opposed placement of the claimant with a roommate.
The ALJ found the claimant’s family visits her regularly at the Edwardian facility, that the claimant is “well-settled” and “has made remarkable progress.” Furthermore, crediting the testimony of Dr. Kornreich, the ALJ found the claimant sustained her burden to prove that the Edwardian Beverly Hills guest house is a reasonable and necessary medical expense to cure and relieve the effects of the industrial injury. Therefore, the ALJ ordered the respondents to pay the claimant’s living expenses at the Edwardian Beverly Hills facility in the amount of $4600 per month, commencing January 2000.
On review, the respondents contend the ALJ erred in finding the Edwardian Beverly Hills facility is a reasonable and necessary expense. In support, the respondents contend Dr. Kornreich knew nothing about the particulars of the Edwardian program when he approved the placement. Further, the respondents contend that the Edwardian placement is not consistent with ALJ Friend’s order because they should have been allowed to inspect the facility and verify the monthly service rate before the claimant was allowed to move in. The respondents also contend the ALJ failed to resolve conflicts in the testimony of Shakey and Benefield concerning the reasonable cost of the facility. The respondents argue the monthly cost of the Edwardian facility is excessive when compared to other assisted living facilities in the general area. They also contend the Edwardian cost is unreasonable because the facility refuses to communicate with the respondent-insurer, and has refused to submit itemized charges on form HCFA 1500, as required by the Rules of Procedure XVI(G) (H), 7 Code Colo. Reg. 1101-7 at 75. We reject these arguments.
The respondents are liable for medical treatment which is reasonably necessary to cure and relieve the effects of the industrial injury. Section 8-42-101(1)(a), C.R.S. 2000; Snyder v. Industrial Claim Appeals Office, 942 P.2d 1337 (Colo.App. 1997) Country Squire Kennels v. Tarshis, 899 P.2d 362 (Colo.App. 1995). The determination of whether particular treatment is reasonable and necessary is a question of fact for the ALJ, and her finding may not be disturbed if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2000; City and County of Denver School District 1 v. Industrial Commission, 682 P.2d 513 (Colo.App. 1984).
Substantial evidence is that quantum of probative evidence which a rational fact- finder would accept as adequate to support a conclusion, without regard to the existence of conflicting evidence. Durocher v. Industrial Claim Appeals Office, 905 P.2d 4
(Colo.App. 1995); Dow Chemical Co. v. Industrial Claim Appeals Office, 843 P.2d 122 (Colo.App. 1992) (ALJ free to credit one medical opinion to the exclusion of a contrary medical opinion). In applying the substantial evidence test, we may not substitute our judgment for that of the ALJ concerning the credibility of the witnesses or the sufficiency and probative weight of the evidence Delta Drywall v. Industrial Claim Appeals Office, 868 P.2d 1155
(Colo.App. 1993); Martinez v. Regional Transportation District, 832 P.2d 1060 (Colo.App. 1992).
Here, the ALJ was persuaded by the testimony of Dr. Kornreich that the Edwardian facility meets the claimant’s assisted living needs, and we perceive no grounds to disturb the ALJ’s credibility determination. See Halliburton Services v. Miller, 720 P.2d 571
(Colo. 1986) (ALJ’s credibility determinations are binding unless the testimony is so rebutted by hard, certain evidence that as a matter of law the ALJ would err in crediting the testimony). Furthermore, Dr. Kornreich’s testimony contains substantial evidence to support the ALJ’s determination that the Edwardian placement is reasonably necessary to cure and relieve the effects of the injury. Dr. Kornreich’s testimony is buttressed by the testimony of the claimant and her son concerning the claimant’s adjustment at the Edwardian. Thus, Shakey’s criticism of the facility is immaterial on review. Campbell v. IBM Corp., 867 P.2d 77 (Colo.App. 1993).
The respondents remaining arguments have been considered and are not persuasive. Contrary to the respondents’ argument, ALJ Friend’s order required the respondents to “arrange” and pay for a placement which met with Dr. Kornreich’s approval. The ALJ reasonably inferred that the respondents’ letter dated December 7, 1999, reflected a list of facilities pre-approved by the respondents for the claimant’s placement, and that the respondents intended the claimant to select one of the facilities listed.
Moreover, even though ALJ Friend’s order granted the respondents the option of providing the claimant assisted living in her home, a group home, or a nursing facility, ALJ Friend’s order did not require the claimant to accept the least expensive option. Thus, the claimant selection of the Edwardian facility was not necessarily inconsistent with ALJ Friend’s order.
Further, the respondents’ letter of December 7 letter did not require the claimant to select an Edwardian facility outside of Beverly Hills. Neither did it require the claimant to select a facility where she would have a roommate. To the contrary, the respondents’ letter instructed the claimant to contact the facility at its Beverly Hills address. Thus, we reject the respondents’ contention the claimant was precluded from selecting the Edwardian Beverly Hills facility.
Next, the ALJ is not required to discuss theories she did not find persuasive. Uptime Corp. v. Colorado Research Corp., 161 Colo. 87, 420 P.2d 232 (1966). The ALJ found the cost of the Edwardian guest house room is $4600 per month and was apparently not persuaded the respondents were mislead to believe the cost of the Edwardian placement would be no more than $2500 per month. Thus, it is apparent the ALJ resolved the conflict between Shakey and Benefield against the respondents.
Finally, the evidence is legally insufficient to conclude that the reasonableness of the Edwardian Beverly Hills facility is dependent on their compliance with Rules XVI(G) (H). Rule XVI(D) states that where the services provided to the injured work fall within the purview of the Medical Fee Schedule, the Schedule shall apply in determining the maximum allowable fees. Twenty-four hour assisted living services are not listed in the Medical Fee Schedule and, therefore, the Schedule does not apply to the medical services in dispute here.
In any case, the respondents offered the services of the Edwardian facility without qualification. Insofar as the respondents refusal to pay the claimant’s accrued charges have created some procedural billing conflicts, we fail to perceive how that evidence precluded the ALJ from finding the claimant’s placement at the Beverly Hills Edwardian facility is reasonable.
IT IS THEREFORE ORDERED that the ALJ’s order dated June 16, 2000.
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, 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. 2000. 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 January 25, 2001 to the following parties:
Stormy Hebrew, P. O. Box 16514, Beverly Hills, CA 90209
Dairy Queen No. 14, 7580 W. 64th Ave., Arvada, CO 80002
John Demos, Casualty Reciprocal Exchange, P. O. Box 419497, Kansas City, MO 64173-0194
Gail Barbier, Morlan Co., 3333 N. Federal Blvd., Denver, CO 80211
Steven H. Gurwin, Esq., 1777 S. Harrison St., #906, Denver, CO 80210 (For Claimant)
Bruce B. McCrea, Esq., 1777 S. Harrison St., #1110, Denver, CO 80210 (For Respondents)
BY: A. Pendroy