W.C. No. 4-244-894Industrial Claim Appeals Office.
March 25, 1997
FINAL ORDER
The claimant seeks review of a final order of Administrative Law Judge Wheelock (ALJ) which denied her claim for medical benefits to pay for child care services. We affirm.
The claim was submitted to the ALJ for determination of the respondents’ liability for child care services, based upon stipulated facts. Insofar as pertinent, the claimant sustained a compensable injury to her upper extremities, which required surgery on July 12, 1996. No home health care was prescribed following the surgery. However, as a result of the surgery the claimant was unable to perform child care for her three children for a period of six days from July 12, 1996 through July 17, 1996. Therefore, the claimant retained the services of a child care provider, who charged $45 per day for a total of $270. The parties stipulated that the child care provider performed the following services: “pick up house, prepare meals, transport oldest child to and from school, took care of two younger children while older sibling was in school, brought groceries, picked up claimant’s prescription medication, and transported [the claimant] to and from her surgery.”
Relying upon our conclusions in Kuziel v. Pet Fair, Inc., W.C. No. 4-139-939, November 8, 1995, the ALJ determined that the child care expenses incurred by the claimant were not a compensable medical benefit. Therefore, the ALJ denied the claimant’s request for reimbursement.
On review, the claimant argues that the ALJ erroneously relied upon our analysis in Kuziel v. Pet Fair, Inc., supra, because it is not precedent, and is contrary to the earlier opinions of the Court of Appeals. Alternatively the claimant argues that Kuziel is factually distinguishable. We reject these arguments.
Our order in Kuziel was upheld by the Court of Appeals in Kuziel v. Pet Fair, Inc., ___ P.2d ___ (Colo.App. No. 95CA2036, October 24, 1996). The Court’s opinion in Kuziel represents the current state of the law concerning the compensability of child care services, and thus, is binding on us and the ALJ. C.A.R. 35(f). Furthermore, we conclude that Kuziel v. Pet Fair, Inc., supra, is dispositive of the claimant’s appeal.
As argued by the claimant, a compensable medical benefit must be either “medical in nature” or “incidental” to obtaining necessary medical treatment. Country Squire Kennels v. Tarshis, 899 P.2d 362 (Colo.App. 1995). The claimant i Kuziel needed child care services for one week while she was hospitalized for treatment of the industrial injury. Instead of hiring a babysitter, the claimant purchased an airline ticket to enable her sister to come and stay with the claimant’s minor children. The ALJ found that the $300 cost of the airline ticket was a reasonable amount for child care during the hospitalization, and therefore, ordered the insurer to reimburse the claimant for the ticket. However, the Court of Appeals concluded that the claimant was not entitled to reimbursement for the child care expense.
The Kuziel court held that child care services necessitated by the claimant’s hospitalization were not a medical in nature “because they did not relieve the symptoms or effects of the injury and were not directly associated with the claimant’s physical needs.” The court also determined that the child care services were not “incidental” to the claimant’s medical treatment because the services were not provided as part of an “overall home health care program designed to treat the claimant’s condition.” Further, the Kuziel court rejected an argument that the child care services provided during the claimant’s hospitalization were “incidental” to the claimant’s receipt of medical treatment under a theory that the child care services “enabled” the claimant to access the treatment. Cf. Industrial Commission v. Pacific Employers, 120 Colo. 373, 209 P.2d 980 (1949) (medical benefits awarded for room and board expenses while the claimant was required to travel away from home to receive hospital treatment, but disallowed once the claimant relocated to a new home near the hospital). In so concluding, the court specifically stated:
“We, like the court in Pacific Employers, are disinclined to extend benefits to cover the payment of expenses incurred for household care or maintenance, child, spousal, or pet care, or other routine living expenses that are paid or incurred during a claimant’s hospitalization or other medical treatment.”
Here, as in Kuziel, the ALJ determined that the child care services did not relate directly to the claimant’s physical health, and that the services did not treat the symptoms from the industrial injury. The ALJ also found that the child care services were not “incidental” to obtaining medical treatment. Rather, the ALJ determined that the claimant’s need for child care existed “regardless of the industrial injury, not because of the injury.”
These findings are supported by the stipulated facts. Furthermore, these findings compel a conclusion that the claimant’s child care services are not a compensable medical benefit. Kuziel v. Pet Fair, Inc., supra; Bellone v. The Bailey Company, W.C. No. 4-156-077, November 8, 1996. Therefore, we may not disturb the ALJ’s order.
In reaching our conclusion, we recognize the claimant’s contention that she obtained more than “child care services” because the provider also transported her to and from her surgery and picked up her prescriptions. However, the sole issue presented to the ALJ was whether the claimant incurred compensable expenses for “child care services.” Accordingly, the issue of whether the claimant incurred compensable expenses other than expenses for child care was not before the ALJ, and will not be considered for the first time on appeal. See Sigman Meat Co. v. Industrial Claim Appeals Office, 761 P.2d 265
(Colo.App. 1988).
IT IS THEREFORE ORDERED that the ALJ’s order dated November 27, 1996, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ Kathy E. Dean
______________________________ Bill Whitacre
NOTICE
This Order is final unless an action to modify or vacatethis Order is commenced in the Colorado Court of Appeals, 2 East14th Avenue, Denver, CO 80203, by filing a petition for reviewwith the court, with service of a copy of the petition upon theIndustrial Claim Appeals Office and all other parties, withintwenty (20) days after the date this Order is mailed, pursuant tosection 8-43-301(10) and 307, C.R.S. (1996 Cum. Supp.).
Copies of this decision were mailed March 25, 1997 to the following parties:
Louise Quintana, 1920 S. Institute, Colorado Springs, CO 80906
Current, Inc., P.O. Box 2559, 1025 E. Woodman Rd., Colorado Springs, CO 80920-3181
Travelers Insurance, Attn: Karen Parker, P.O. Box 173762, Denver, CO 80217-3762
Pamela J. Adams Donnelly, Esq., P.O. Box 2940, Colorado Springs, CO 80901-2940 (For Claimant)
Bruce B. McCrea, Esq., 1777 S. Harrison, #1110, Denver, CO 80210 (For Respondents)
BY: _______________________________