W.C. No. 4-247-484Industrial Claim Appeals Office.
October 25, 2000
FINAL ORDER
The claimant seeks review of an order entered by Administrative Law Judge Martinez (ALJ) which was entered pursuant to our order of remand. The claimant contends the ALJ erred in denying his claim for medical benefits in the form of hand control adaptions for his motor vehicle. We disagree and, therefore, affirm.
In 1995, the claimant, a Leadville resident, suffered an admitted fracture to his right ankle. He subsequently underwent three surgeries and developed Reflex Sympathetic Dystrophy (RSD). The claimant drives to Denver at least five times a year to receive lumbar sympathetic nerve block injections from Dr. Wright. The claimant also uses a medicated cream, an implanted spinal stimulator and must wear a hard boot cast to protect his foot from further injury. The claimant testified that wearing the boot hinders his ability to operate the vehicle and, therefore, he drives with his left foot. Dr. Colliton and Dr. Nichols prescribed hand controls for the claimant’s vehicle. Dr. Colliton reported that he would “feel safer if somebody with [the claimant’s] disability with inability to use his right foot were driving with hand controls.” (Colliton report March 29, 1999). Dr. Colliton recommended the hand controls for the claimant’s “safety on the road as well as others.” Similarly, Dr. Nichols recommended the hand controls so that the claimant can “safely operate” a car. (Nichols report March 18, 1999).
The claimant testified that Dr. Colliton was looking out for “my safety and my family’s safety, or others,” when he prescribed the hand controls. (Tr. p. 23). He also stated that he felt he would be a safer driver with the hand controls. (Tr. p. 28).
Under § 8-42-101(1)(a), C.R.S. 2000, the respondents are required to provide medical services “as may reasonably be needed” to “cure and relieve” the effects of the industrial injury. See Colorado Compensation Insurance Authority v. Nofio, 886 P.2d 714
(Colo. 1994). Based upon this statute employers have been required to provide services which are either medically necessary for the treatment of a claimant’s injuries or incidental to obtaining medical treatment. Industrial Commission v. Pacific Employers, 120 Colo. 373, 209 P.2d 980 (1949); Sigman Meat Co. v. Industrial Claim Appeals Office, 761 P.2d 265 (Colo.App. 1988). For a particular apparatus to be a medical necessity it must provide “therapeutic relief” from the effects of the injury Cheyenne County Nursing Home, v. Industrial Claim Appeals Office, 892 P.2d 443 (Colo.App. 1995). An apparatus is “incidental” to medical treatment if it enables the claimant to obtain treatment or is a “minor concomitant” of medical treatment. See Country Squire Kennels v. Tarshis, 899 P.2d 362 (Colo.App. 1995).
In a previous order, the ALJ found that if the claimant drives with his right foot while wearing the boot, his right foot becomes numb and cold and the claimant is unable to control the movement of the right foot. The ALJ also found that the claimant cannot safely drive without some form of assistance and, therefore, determined that hand controls are reasonable and necessary to treat the industrial injury. Consequently, the ALJ awarded medical benefits in the nature of the prescribed hand controls. The respondents timely appealed.
On review of the previous order we concluded that the evidence is legally insufficient to support a finding that the prescribed hand controls provide therapeutic relief as that term is defined by Cheyenne County Nursing Home v. Industrial Claim Appeals Office, supra. However, we remanded the matter for a new order concerning whether the prescribed hand controls are “incidental” to medical treatment of the injury.
On remand, the ALJ determined the claimant failed to prove the hand controls were medically necessary or incidental to obtaining treatment. In support, the ALJ found the claimant has no driving problem during short trips up to one hour and must engage in long- distance driving five times a year to travel to Denver for injections. However, the ALJ found that due to side-effects brought on by the injections, the claimant has someone accompany him on the trips to Denver. Because the claimant is not required to be the driver on the long- distance trips to Denver, the ALJ determined the claimant does not need the hand controls to access the Denver medical treatment. Therefore, the ALJ refused to order the respondents to provide the hand controls prescribed by the treating physicians. The claimant timely appealed the ALJ’s order on remand.
On review the claimant contends there is no evidence to support the ALJ’s determination that the prescribed hand controls do not provide therapeutic relief and, thus, are not a compensable medical necessity. In support, the claimant contends that this claim is factually distinguishable from the cases cited by the ALJ in finding the claimant failed to prove the hand controls are a compensable medical benefit. The claimant also contends the ALJ erroneously failed to find that the hand controls are incidental to obtaining medical treatment. We reject these arguments.
In our Order of Remand, we concluded as a matter of law that the record does not contain sufficient evidence to support a finding that the disputed hand controls constitute a medical necessity. In accordance with our Order of Remand the ALJ determined that “the evidence is legally insufficient to support a finding that the prescribed hand controls provide therapeutic benefit.” (Finding of Fact 6). We decline to depart from our prior holding. Therefore, the ALJ did not apply the wrong legal standard in finding that the disputed benefits are not compensable as a “medical apparatus” reasonably necessary to treat the claimant’s condition.
Furthermore, we perceive no basis to interfere with the ALJ’s determination that the hand controls are not incidental to obtaining medical treatment. The determination of whether a particular apparatus is reasonably necessary because it is incidental to obtaining treatment is a question of fact for resolution by the ALJ. Edward Kraemer Sons, Inc. v. Downey, 852 P.2d 1286 (Colo.App. 1992). Consequently, we must uphold the ALJ’s factual determinations if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2000.
The claimant admitted that short distance driving is no problem and that it is only long distance driving that increases the symptoms in his right foot. (Tr. p. 22). He testified that the long-distance drives to Denver occur approximately five times a year. (Tr. p 22). However, he admitted that he is not allowed to drive home after receiving the injection treatment in Denver and is required to have another person with him to drive. (Tr. p. 10). Based on evidence the claimant must have a licensed driver with him to drive back to Leadville from the Denver medical appointments, the ALJ reasonably inferred the driver can also drive the claimant to the Denver appointments. Furthermore, the ALJ’s determination supports the conclusion that the claimant does not need hand controls to access medical treatment in Denver. Consequently, the ALJ did not err in finding the claimant failed to prove the hand controls are a minor concomitant to obtaining medical treatment. See Industrial Commission v. Pacific Employers, supra. Moreover, the ALJ’s determinations support the denial of benefits.
The claimant also testified that he travels to Denver to obtain medical treatment from Drs. Wright and Nichols. (Tr. p. 10). Our review is limited to the record before the ALJ. City of Boulder v. Dinsmore, 902 P.2d 925 (Colo.App. 1995). Consequently, we may not consider the claimant’s factual assertion that he is also required to engage in long-distance travel throughout Colorado to treat with the physicians identified on the hearing “witness list.” See Voisinet v. Industrial Claim Appeals Office, 757 P.2d 171 Colo. App. 1988).
IT IS THEREFORE ORDERED that the ALJ’s order dated May 5, 2000, 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, 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, 2000 to the following parties:
Joe Magdaleno, 304 W. 17th Ave., Leadville, CO 80461-3421
Kemp Co., Inc., P. O. Box 189, Edwards, CO 81632
Laurie A. Schoder, Esq., Colorado Compensation Insurance Authority dba Pinnacol Assurance — Interagency Mail (For Respondents)
Rick P. Sauer, Esq., 700 Macon Ave., Canon City, CO 812 12 (For Claimant)
Grant C. Butterfield, Esq., 600 17th St., #1600N, Denver, CO 80202
BY: A. Pendroy