Country Squire Kennels v. Tarshis

899 P.2d 362, 19 Brief Times Rptr. 1046, 1995 Colo. App. LEXIS 177, 1995 WL 358334
CourtColorado Court of Appeals
DecidedJune 15, 1995
Docket94CA1271
StatusPublished
Cited by78 cases

This text of 899 P.2d 362 (Country Squire Kennels v. Tarshis) is published on Counsel Stack Legal Research, covering Colorado Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Country Squire Kennels v. Tarshis, 899 P.2d 362, 19 Brief Times Rptr. 1046, 1995 Colo. App. LEXIS 177, 1995 WL 358334 (Colo. Ct. App. 1995).

Opinions

Opinion by

Judge TAUBMAN.

Petitioners, Country Squire Kennels and Colorado Compensation Insurance Authority, seek review of the final order of the Industrial Claim Appeals Office (Panel) affirming an award for the cost of housecleaning services provided to claimant, Debra Tarshis. We set aside the order.

The issue presented here is whether a claimant who has suffered an admitted work-related injury may receive compensation for the expense of medically prescribed housecleaning services if those services are not “incidental to” the expense of providing reasonably necessary medical, nursing, or attendant care treatment services. We hold that she may not.

As a result of her work-related injury, the claimant experienced chronic low back pain which, the Administrative Law Judge (ALJ) found, severely limited her daily activities and her ability to clean house. Specifically, he found that the claimant had difficulty sleeping and getting out of bed and that she required assistance with cooking, grocery shopping, and personal care, such as bathing. She also had difficulty dressing herself. The claimant was able to perform these tasks only with the assistance of her boyfriend, for whose services she did not seek compensation. Although claimant’s physician prescribed housecleaning services, no attendant care services were prescribed.

The ALJ concluded that the medically prescribed houseeleaning services were necessary to relieve the claimant from the effects of her injuries and were incidental to attendant care services that the ALJ determined to be medically necessary and that had been provided by her boyfriend. Hence, the ALJ awarded the claimant an amount for the expense of such weekly houseeleaning services.

On appeal, the Panel affirmed, reasoning that the claimant had received medically necessary attendant care services, consisting of cooking and grocery shopping, from her boyfriend and other friends. The Panel concluded that it was unnecessary for the attendant care services provided to be medically prescribed, in light of substantial evidence that the claimant needed and was receiving such services.

Further, the Panel concluded that the housecleaning services for which the claimant sought compensation were incidental to her overall need for attendant care services and that, if the claimant were to perform these houseeleaning activities, she would aggravate her medical condition. Accordingly, following Atencio v. Quality Care, Inc., 791 P.2d 7 (Colo.App.1990), the Panel determined that the reasonable value of the claimant’s housecleaning services was covered under the Workers’ Compensation Act.

Petitioners contend that the claimant may not be compensated for houseeleaning services that are neither medically necessary nor incurred “incidental to” the expense of providing services that are medically necessary. We agree with petitioners’ argument.

Under § 8-42-101(l)(a), C.R.S. (1994 Cum. Supp.): “Every employer ... shall furnish such medical [and] nursing ... treatment ... as may reasonably be needed at the time of the injury or occupational disease and thereafter during the disability to cure and relieve the employee of the effects of the injury.”

Thus, to be compensable, expenses must be for medical or nursing treatment, or incidental to obtaining such medical or nursing treatment. See Industrial Commission v. Pacific Employers Insurance Co., 120 Colo. 373, 209 P.2d 908 (1949). Moreover, the mere fact that the housecleaning services are prescribed by a physician does not make them medically necessary. See Hillen v. Tool King, 851 P.2d 289 (Colo.App.1993) (compensation denied for medically prescribed lawn care services); ABC Disposal Services v. Fortier, 809 P.2d 1071 (Colo.App.1990) (compensation denied for medically prescribed snowblower because it did not cure or relieve the effects of an injury but only provided an easier method for claimant to perform a household chore).

Here, the claimant’s attending physician equivocated with respect to whether the houseeleaning services themselves are medi[364]*364cally necessary. In addition, on appeal, the claimant does not contend that the housecleaning services themselves constituted medical or nursing treatment. However, even if claimant’s housecleaning services are not medical or nursing treatment, they may still be compensable if their cost is incidental to the expense of providing medical or nursing treatment.

Although the phrase “incidental to” does not appear in the statute, it was first used by the supreme court in Industrial Commission v. Pacific Employers Insurance Co., supra. There, the claimant, a Granby resident, was required to remain in Denver for medical treatment for several weeks. The supreme court held that during this period, his expenses for room and board were compensa-ble as “incident to” his obtaining hospital services. During a subsequent period, however, after the claimant had moved to Denver, the supreme' court held that his room and board expenses were no longer compen-sable.

Thus, in Pacific Employers, the supreme court used “incident to” as meaning enabling. Hence, when the claimant’s room and board expenses enabled him to attend his hospital treatment in Denver, those expenses were incident to his medical treatment and thus compensable. On the other hand, when his expenses of room and board after he had moved to Denver did not enable him to receive medical treatment, but merely made it easier for him to do so, they were not com-pensable. See also Sigman Meat Co. v. Industrial Claim Appeals Office, 761 P.2d 265 (Colo.App.1988) (claimant’s transportation expenses incurred in seeking authorized medical treatment held compensable as incident to such medical treatment).

In more recent years, two other divisions of this court have held that housekeeping services that were incidental to medically necessary attendant care services were com-pensable. Atencio v. Quality Care, Inc., supra; Edward Kraemer & Sons, Inc. v. Downey, 852 P.2d 1286 (Colo.App.1992). See also 2 A. Larson, Workmen’s Compensation Law § 61.13(d)(4) (1992) (courts have drawn a line between nursing attendance, which is covered by Workers’ Compensation, and services that are in essence housekeeping, which are not).

In Atencio, the court considered whether a claimant who could not perform any personal care tasks because of her compensable injury should receive compensation for medically necessary attendant care services and related housekeeping services. The division held that both medically necessary attendant care services and housekeeping services incidental to obtaining such attendant care services are compensable.

Similarly, in Kraemer, the court noted that a spouse should be compensated for services rendered to an industrially injured employee if those services are in the nature of nursing services, but that compensation may not be awarded to a spouse if the only services being rendered to a claimant are ordinary household chores.

In

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Enterprise v. ICAO
Colorado Court of Appeals, 2024
Nanez v. Indus
2018 COA 162 (Colorado Court of Appeals, 2018)
Bellone v. Industrial Claim Appeals Office
940 P.2d 1116 (Colorado Court of Appeals, 1997)
Kuziel v. Pet Fair, Inc.
931 P.2d 521 (Colorado Court of Appeals, 1996)
Country Squire Kennels v. Tarshis
899 P.2d 362 (Colorado Court of Appeals, 1995)

Cite This Page — Counsel Stack

Bluebook (online)
899 P.2d 362, 19 Brief Times Rptr. 1046, 1995 Colo. App. LEXIS 177, 1995 WL 358334, Counsel Stack Legal Research, https://law.counselstack.com/opinion/country-squire-kennels-v-tarshis-coloctapp-1995.