Industrial Claim Appeals Office of the State of Colorado WC
Morrell LLC, Michael H. Kaplan, Greeley, Colorado; Volant Law
LLC, J. Bryan Gwinn, Englewood, Colorado, for Petitioner
Appearance for Respondent Industrial Claim Appeals Office
D. Flewelling, Denver, Colorado, for Respondents Mechanical
& Piping, Inc., and Pinnacol Assurance
Simpson Eldredge Hersh & Jardine, P.C., John M. Connell,
Englewood, Colorado, for Amicus Curiae Workers'
Compensation Education Association
Simpson Eldredge Hersh & Jardine, P.C., Nelson Boyle,
Englewood, Colorado, for Amicus Curiae Colorado Trial Lawyers
1 In this workers' compensation case, claimant, Brian
Nanez, seeks review of a final order of the Industrial Claim
Appeals Office (Panel), which affirmed an order by the
administrative law judge (ALJ) determining that (1)
Mechanical & Piping, Inc., and Pinnacol Assurance
(collectively, employer) aren't liable to pay for
medically prescribed conservator and guardian services under
section 8-42-101(1)(a), C.R.S. 2018; and (2) Mr. Nanez's
average weekly wage (AWW) shouldn't be increased. We
affirm the Panel's final order.
2 In doing so, we address an issue of first impression as to
section 8-42-101(1)(a)'s language requiring "[e]very
employer . . . [to] furnish such medical . . . treatment . .
. as may reasonably be needed at the time of the injury . . .
and thereafter during the disability to cure and relieve the
employee from the effects of the injury." Specifically,
we address whether this language covers the costs of
providing conservator or guardian services to a permanently
and totally disabled claimant suffering from a traumatic
brain injury. Under the circumstances here, we conclude that
the statutory language doesn't cover the costs of
conservator or guardian services for Mr. Nanez because the
conservator services don't help care for or remedy his
injury and Mr. Nanez didn't establish that the guardian
services are reasonably needed to cure and relieve him from
the effects of his injury.
Facts and Procedural History
3 Mr. Nanez worked as a plumber for Mechanical & Piping,
Inc. As a result of a work-related accident, he sustained
permanent, disabling closed head injuries, causing
significant cognitive deficits. Mr. Nanez's authorized
treating physician, Dr. Hugh Macaulay, and the physician who
conducted a division-sponsored independent medical
examination placed Mr. Nanez at maximum medical improvement
(MMI) with a permanent impairment rating of forty-seven
percent of the whole person, with forty percent of that being
attributed to his brain injury. Employer admitted liability
for permanent total disability.
4 Dr. Macaulay's MMI and impairment report noted that Mr.
Nanez's brain injury prevented him from
"maintain[ing] his function and independence." He
described Mr. Nanez as having "executive function, but
it is impaired"; "fair" short term memory; and
"somewhat unreliable" recent memory. Mr. Nanez
requires assistance with everyday tasks such as grocery
shopping, banking, and navigating around town.
5 Because of Mr. Nanez's cognitive impairments, Dr.
Macaulay concluded that Mr. Nanez "will need to have
oversight for his financial and medical management." And
deeming their services to be "reasonable and
necessary," Dr. Macaulay recommended that both a
conservator and a guardian be appointed to function as Mr.
Nanez's "peripheral brain." In a separate
proceeding, a district court appointed both a conservator and
a guardian for Mr. Nanez.
6 Mr. Nanez asked for a hearing, seeking an order requiring
employer to pay for the conservator's and guardian's
services under section 8-42-101(1)(a). He also asked that his
AWW be increased to cover his lost potential earning
capacity, reflecting wages he would've earned as a master
plumber had he not been injured.
7 The ALJ denied both requests. Applying section
8-42-101(1)(a), he was "not persuaded that the
[Workers' Compensation] Act provide[d] [him] with the
authority to require [employer] to pay for a guardian and
conservator to manage [Mr. Nanez's] workers'
compensation benefits." And he found that the services
of a conservator and a guardian were "legal in
nature," noting that court cases allowing for
housekeeping services are based on those services having
relieved "the symptoms and effects of the injury and
were directly associated with [the] claimant's physical
8 As to the conservator's services specifically, the ALJ
found that "ensuring that [Mr. Nanez] handles his
finances does not cure or relieve [him] from the effects of
the industrial injury," and even with such services,
"[Mr. Nanez's] physical condition remains the same,
although his financial situation may improve." And, as
to the guardian's services, the ALJ found that "[Mr.
Nanez's] medical records document a long history of
medical treatment . . . prior to [him] having a guardian
appointed," and that "the medical records do not
document that [the issues as to Mr. Nanez's independent
judgment involving his medical care, including taking
medications] significantly affected [Mr. Nanez's] ability
to receive appropriate medical treatment." So the ALJ
found that "Mr. Nanez] ha[d] failed to establish that
the duties of a guardian in managing [his] treatment and
ongoing care are reasonable and necessary," and that
employer "may be able to provide the same services for
[Mr. Nanez] through the use of a nurse case manager."
9 The ALJ also concluded that Mr. Nanez's request to
increase his AWW was "too speculative." And he
noted that despite Mr. Nanez's professed intent prior to
the accident to continue working as a plumber and earn his
master plumber certification, it was "impossible to
ascertain what would have happened with [Mr. Nanez] if not
for his workers' compensation injury."
10 The Panel affirmed the ALJ's rulings. It followed the
ALJ's reasoning, relying on Bogue v. SDI Corp.,
931 P.2d 477 (Colo.App. 1996), Edward Kraemer & Sons,
Inc. v. Downey, 852 P.2d 1286 (Colo.App. 1992), and
Country Squire Kennels v. Tarshis, 899 P.2d 362
(Colo.App. 1995). The Panel read these cases as reflecting
the court of appeals' conclusion that section
8-42-101(1)(a) doesn't allow expenses for services that
merely improve a claimant's lifestyle or assist with
daily tasks. And, it held that a conservator's
"functions are primarily financial and are not
accurately described as medical or nursing services.
Accordingly, they are not compensable expenses."
11 The Panel also held that a guardian's services
"fail to fall easily into the category of medical
benefits." And it noted that the statute governing
guardians prohibits an individual from serving as both a
guardian and a "direct service provider" to an
incapacitated person, see § 15-14-310(5),
C.R.S. 2018, and that such "activities are largely
outside of a reasonable definition of medical care."
12 As to Mr. Nanez's request to increase his AWW, the
Panel found that the ALJ didn't err in applying the law
and didn't abuse his discretion in ...