[Copyrighted Material Omitted]
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
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) arent liable to pay for medically
prescribed conservator and guardian services under section
8-42-101(1)(a), C.R.S. 2018; and (2) Mr. Nanezs average
weekly wage (AWW) shouldnt be increased. We affirm the
Panels 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 doesnt cover the costs
of conservator or guardian services for Mr. Nanez because the
conservator services dont help care for or remedy his injury
and Mr. Nanez didnt establish that the guardian services are
reasonably needed to cure and relieve him from the effects of
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. Nanezs 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. Macaulays MMI and impairment report noted
that Mr. Nanezs 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. Nanezs 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.
Nanezs "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 conservators and
guardians 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 wouldve 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. Nanezs] 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] claimants
8] As to the conservators 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. Nanezs] physical condition remains the same,
although his financial situation may improve." And, as
to the guardians services, the ALJ found that "[Mr.
Nanezs] 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. Nanezs independent
judgment involving his medical care, including taking
medications] significantly affected [Mr. Nanezs] 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. Nanezs request
to increase his AWW was "too speculative." And he
noted that despite Mr. Nanezs 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 ALJs rulings. It
followed the ALJs 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)
doesnt allow expenses for services that merely improve a
claimants lifestyle or assist with daily tasks. And, it held
that a conservators "functions are primarily financial
and are not accurately described as medical or nursing
services. Accordingly, they are not compensable
11] The Panel also held that a guardians 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 ...