W.C. No. 4-155-507Industrial Claim Appeals Office.
October 25, 2002
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Coughlin (ALJ) dated March 26, 2002, which required them to pay medical benefits. We affirm the order for the payment of expenses incurred at the Edwardian of Beverly Hills residential care facility and dismiss the remainder of the appeal for lack of a final order.
It is undisputed the claimant is permanently and totally disabled as a result of an industrial accident which caused a closed head injury. In an order dated September 16, 1999, ALJ Friend found that the claimant’s cognitive and emotional disabilities resulting from the industrial injuries preclude the claimant 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 in a manner acceptable to the claimant’s treating physician, Dr. Kornreich.
After a brief period of psychiatric hospitalization in October 1999, the claimant moved to Beverly Hills, California and temporarily resided with her son. In December 1999, the claimant’s attorney requested the respondents provide assisted living services. Without conducting any on site visit, the respondents identified 5 assisted living facilities which were acceptable, one of which was Edwardian Residential Care (the Edwardian). The Edwardian operated several residential facilities in California.
In January 2000, the claimant moved into the “guest house room” at the Edwardian of Beverly Hills, at a cost of $4600 a month plus $400 a month for food.
In a prior order dated June 16, 2000, the ALJ found the claimant sustained her burden to prove that the Edwardian guest house was 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 in the amount of $4600 per month, commencing January 2000. The respondents appealed the ALJ’s order. We affirmed and the respondents appealed to the Court of Appeals.
Because the respondents disputed the reasonableness of the claimant’s residency in the Edwardian “guest house,” they refused to make full payment for the cost of the claimant’s placement. The Edwardian refused to accept partial payment and, therefore, the claimant was evicted in August 2000. Following the eviction the claimant resided temporarily with her son, Giovanni, in California. The claimant then returned to Colorado where she lived with various family members who reported difficulty dealing with the claimant’s disability issues. Eventually, the claimant returned to California to reside with Giovanni.
While the respondents’ appeal of the ALJ’s prior order was pending before the Court of Appeals, the respondents requested the matter be remanded to the ALJ for reconsideration of her prior order based on new evidence that the claimant no longer resided in the Edwardian and that the Beverly Hills facility had closed. On May 22, 2001, the court remanded the matter for the limited purpose of allowing the ALJ to reconsider the June 16 order based on newly discovered evidence.
On remand, Dr. Kornriech testified that the claimant’s eviction from the Edwardian caused a deterioration of the claimant’s emotional and psychological condition which rendered her more vulnerable to problems in an institutional placement. Dr. Kornreich added that, although she initially favored the Edwardian placement, changes in the claimant’s condition resulting from the negative termination of that placement closed the “window of opportunity,” for the success of similar group home or nursing type placements. (Tr. March 14, 2002, p. 92). Instead, Dr. Kornreich opined that the claimant’s best interests were served by living with Giovanni. (Tr. March 14, 2002, p. 106).
The ALJ found the claimant sustained her burden to prove that her residency at the Edwardian guest house from January 2000 to August 2000 was a reasonable and necessary medical expense. In support, the ALJ found the Edwardian placement was approved by Dr. Kornreich, the facility was located near the claimant’s family and family visits were beneficial to the claimant. The ALJ also found the claimant made remarkable progress while residing at the Edwardian. Therefore, the ALJ ordered the respondents to pay the claimant’s living expenses at the Edwardian in the amount of $4,600 per month from January 4, 2000 through the date of the claimant’s eviction in August 2000.
However, relying on the opinions of Dr. Kornreich, the ALJ found the claimant no longer requires 24 hour a day skilled nursing services and that it would be better for the claimant to live with her son Giovanni than in a group home or nursing facility. Nevertheless, the ALJ found the claimant requires assistance with medications, hygiene, dressing, nutrition, cooking and shopping. Therefore, the ALJ ordered the respondents to compensate Giovanni for the reasonable value of practical nursing type care provided to the claimant, to include assistance with bathing, hygiene, and home care, or hire a CNA to provide such services. The ALJ also ordered the respondents to pay the “reasonable value of other assisted living services provided to the Claimant” in the nature of supervision, dressing, cooking, laundry, housekeeping and transportation to and from medical appointments, or to hire a qualified individual to perform such services. Further, the ALJ ordered the respondents to pay the cost of a one-time medically-supervised weight management program and to designate a psychiatrist or psychotherapist to treat the claimant.
The ALJ denied the claimant’s request for penalties and reimbursement of assisted living expenses following her eviction from the Edwardian until the claimant established the type of service provided and the reasonable value of the services. The ALJ reserved all other issues for future determination.
I.
On review of the ALJ’s Order After Remand, the respondents contend there is insufficient evidence to support the ALJ’s finding that $4600 per month for the claimant’s residence at the Edwardian is reasonable and necessary.
We previously considered and rejected the respondents’ assertion. The respondents further arguments do not persuade us to depart from our prior conclusions.
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. 2002; 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. 2002; 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 met 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). Dr. Kornreich’s testimony contains substantial evidence to support the ALJ’s determination that the Edwardian placement was 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, the existence of evidence which, if credited, might support a contrary determination is immaterial on review. Campbell v. IBM Corp., 867 P.2d 77 (Colo.App. 1993).
The respondents also contend that they cannot be required to pay the Edwardian until they receive billings which comply with the requirements of the Rules of Procedure, Part XVI(G)(5)(d) (H), 7 Code Colo. Reg. 1101-3. In particular, they contend that in the absence of properly prepared billing records it is impossible to determine whether the claimant actually resided in the Edwardian between January and August 2000.
We adhere to our previous conclusion that the evidence is legally insufficient to conclude that the respondents’ liability for payment to the Edwardian is dependent on the Edwardian’s 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 Edwardian was reasonable.
Moreover, the claimant testified she lived at the Edwardian for 9 months and was evicted in September 2000. (Tr. March 14, 2002, pp. 25, 38). The claimant’s son testified the Edwardian closed in September 2000. (Tr. March 14, 2000, p. 73). Thus, the record contains sufficient evidence from which the ALJ reasonably inferred that the claimant resided at the Edwardian between January 4, 2000 and September 2000.
Nevertheless, the respondents contend that because the Edwardian closed in September 2000 it is impossible to comply with the ALJ’s order because they do not know who to pay. Again, we disagree.
The respondents did not assert this argument before the ALJ. See Schlage Lock v. Lahr, 870 P.2d 615 (Colo.App. 1993) (counsel may not take one position before ALJ and argue a contrary position on appeal). To the contrary, at the commencement of the hearing on March 14, 2002, the respondents’ counsel admitted that Edwardian Residential Care operated several facilities in the Los Angeles area and that only the Beverly Hills facility was closed. (Tr. p. 14).
Further, the respondents did not present evidence that Edwardian Residential Care had dissolved. Consequently, the record does not support the respondents’ assertion that they do not know where to send the payments owed to the Edwardian, or that they could not find out with minimal effort.
II.
Next, the respondents contend the ALJ erred insofar as she ordered them to provide attendant type nursing care in the home of the claimant’s son which “could be more expensive” than the cost of providing similar services in a group or nursing home. They argue the ALJ erred by requiring them to “subsidize” the claimant’s residence with her son in Hollywood. They also contend the award erroneously sets aside ALJ Friend’s 1999 order insofar as the ALJ allowed Dr. Kornreich to dictate where the respondents are required to provide the medical services awarded by ALJ Friend.
The claimant contends the respondents’ appeal is premature. We agree with the claimant.
Pursuant to § 8-43-301(2), C.R.S. 2002, a party “dissatisfied with an order” may file a petition to review any order which requires any party to pay a benefit or penalty, or denies the claimant any benefit or penalty. Orders which do not award or deny benefits or penalties are interlocutory and not subject to immediate review. United States Fidelity and Guaranty, Inc. v. Kourlis, 868 P.2d 1158 (Colo.App. 1994). Similarly, an order which determines liability without resolving the amount of benefits or penalties to be paid is not considered final and reviewable. United Parcel Service, Inc. v. Industrial Claim Appeals Office, 988 P.2d 1146 (Colo.App. 1999).
An order may be partially final and reviewable and partially interlocutory. Oxford Chemicals, Inc. v. Richardson, 782 P.2d 843
(Colo.App. 1989). In light of these principles, we have frequently held that orders which determine liability and award “reasonable and necessary medical” expenses without awarding specific medical benefits are not final and reviewable. Tooley v. Johnson and Sons Trucking, W.C. No. 4-376-713 (January 28, 2000); Tilton v. ABC. Turf Care, W.C. No. 3-105-542
(August 18, 1994).
Here, the ALJ ordered the respondents to compensate the claimant’s son for the “reasonable value” of assisted living services provided to the claimant or to provide a qualified individual to perform such services. However, the ALJ expressly determined the claimant failed to establish the reasonable value of the assisted living services. Consequently, the ALJ’s order does not determine the amount of benefits to be paid.
Furthermore, the ALJ’s order gives the respondents the option of either compensating the claimant’s son or furnishing a qualified person to provide assisted living services. The record does not indicate which, if either, of these options the respondents pursued. Under these circumstances, the ALJ’s order is not a final order concerning the respondents’ liability for assisted living services. See Atkins v. Centennial School District R-1, W.C. No. 4275-987 et. al., (February 7, 2002); Cross v. Western Investigation Services, W.C. No. 3-104-927, April 30, 1996; Ellner v. Neodata, W.C. No. 4-180-902, November 22, 1994 (order requiring respondents to admit liability for permanent disability benefits or obtain an Division sponsored independent medical examination is interlocutory).
The same analysis is applicable to the ALJ’s order that requires the respondents to pay the “reasonable value” of practical nursing-type care required by the claimant or provide a CNA to provide such services. The ALJ found that “one means to measure the reasonable value of practical nursing-type assistance” is the amount established by the Workers’ Compensation Medical Fee Schedule for the payment of a “certified nurse assistant.” However, the ALJ did not order the respondents to pay Giovanni in accordance with the fee schedule. Consequently, the ALJ’s order is not sufficiently definite to establish the amount of the respondents’ liability.
Indeed the ALJ expressly reserved all issues not decided for future determination. Under these circumstances, we must presume the ALJ reserved the determination of the exact amount to be paid by the respondents for nursing and assisted living services.
Moreover, an immediate review of the ALJ’s award of assisted living and CNA type services creates the potential of piecemeal review. This is true because the respondents may seek later review of the ALJ’s determination of the “reasonable value” of the medical benefits awarded. Consequently, our disposition is consistent with the legislative purpose underlying the restrictions on appellate review. BCW Enterprises, Ltd. v. Industrial Claim Appeals Office, 964 P.2d 533 (Colo.App. 1997).
III.
The respondents also contest the ALJ’s order which requires them to pay the cost of the claimant’s participation in a one time weight loss program. The respondents’ contend that even if the claimant’s participation has “at least some positive impact on [the claimant’s] medical and physical health,” as found by the ALJ, weight loss treatment is not a compensable medical benefit.
For the reasons set forth in section II above we conclude this portion of the ALJ’s order is not currently reviewable.
IT IS THEREFORE ORDERED that the ALJ’s order dated March 26, 2002, is affirmed insofar as it required the respondents to pay $4600 per month for the claimant’s residence at the Edwardian from January 4, 2000 to the date of the claimant’s eviction in August 2000.
IT IS FURTHER ORDERED that the remainder of the respondents’ Petition to Review the ALJ’s order is dismissed without prejudice.
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 October 25, 2002 to the following parties:
Stormy Hebrew, c/o Giovanni Agnelli, P. O. Box 16514, Beverly Hills, CA 90209
Stormy Hebrew, c/o Steven H. Gurwin, Esq., 3515 S. Tamarac Dr., #200, Denver, CO 80237
Dairy Queen, 8120 N. Sheridan, #308B, Westminster, CO 80030-6143
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., 3515 S. Tamarac Dr., #200, Denver, CO 80237 (For Claimant)
Bruce B. McCrea, Esq., 1777 S. Harrison St., #1110, Denver, CO 80210 (For Respondents)
BY: ___A. Hurtado___