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Nanez v. Industrial Claim Appeals Office

Court of Appeals of Colorado, Fourth Division

November 15, 2018

Brian NANEZ, Petitioner,
INDUSTRIAL CLAIM APPEALS OFFICE of the State of Colorado; Mechanical & Piping, Inc.; and Pinnacol Assurance, Respondents.

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[Copyrighted Material Omitted]

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          Industrial Claim Appeals Office of the State of Colorado, WC No. 4-922-618

         Kaplan Morrell LLC, Michael H. Kaplan, Greeley, Colorado; Volant Law LLC, J. Bryan Gwinn, Englewood, Colorado, for Petitioner

          No Appearance for Respondent Industrial Claim Appeals Office

         Harvey D. Flewelling, Denver, Colorado, for Respondents Mechanical & Piping, Inc., and Pinnacol Assurance

         Burg Simpson Eldredge Hersh & Jardine, P.C., John M. Connell, Englewood, Colorado, for Amicus Curiae Workers’ Compensation Education Association

         Burg Simpson Eldredge Hersh & Jardine, P.C., Nelson Boyle, Englewood, Colorado, for Amicus Curiae Colorado Trial Lawyers Association



         [¶ 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.

          I. 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.

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         [¶ 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 needs."

         [¶ 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 ...

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