Enterprise v. ICAO

• Court: Colorado Court of Appeals
• Decided: October 3, 2024
• Docket: 24CA0151
• Status: Unknown

Opinion

24CA0151 Enterprise v ICAO 10-03-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0151 Industrial Claim Appeals Office of the State of Colorado WC No. 4-753-828

Enterprise Claims Management, Inc., and Cannon Cochran Management Services,

Petitioners,

v.

Industrial Claim Appeals Office of the State of Colorado and Fozia H. Mohamed,

Respondents.

ORDER AFFIRMED

Division III Opinion by JUDGE DUNN Navarro and Gomez, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced October 3, 2024

Dworkin, Chambers, Williams, York, Benson & Evans, PC, Gregory K. Chambers, Denver, Colorado, for Petitioners

No Appearance for Respondent Industrial Claim Appeals Office

Kaplan Morrell, LLC, Michael H. Kaplan, Greeley, Colorado, for Respondent Fozia H. Mohamed ¶1 In this workers’ compensation action, Enterprise Claims

Management, Inc., and its insurer, Cannon Cochran Management

Services (collectively, employer), seek review of the final order

issued by the Industrial Claim Appeals Office (the Panel) affirming

the award of reasonably necessary medical benefits to claimant

Fozia H. Mohamed. Under the circumstances presented here, we

affirm.

I. Background

A. The Work-Related Injury and Permanent Total Disability

¶2 While working alone at a gas station at night, Mohamed was

robbed at gunpoint two different times. After the first robbery in

2007, Mohamed returned to work, though she experienced some

anxiety and became more vigilant. But in 2008, two men again

robbed the gas station and this time held a gun to Mohamed’s head

and pulled the trigger (though the gun didn’t discharge). After this

robbery, Mohamed was diagnosed with post-traumatic stress

disorder (PTSD).

¶3 As a result of her PTSD, Mohamed experienced anxiety, panic

attacks, chronic fear, depression, insomnia, nightmares,

hyperarousal, hypervigilance, agoraphobia, and avoidance

1 behaviors. And because being alone exacerbated her symptoms,

since the second robbery Mohamed has relied on the presence of

others to make her feel safe.

¶4 Despite years of therapy, medication, and attempts at

desensitization, Mohamed’s PTSD symptoms persisted. Thus, in

2014, an administrative law judge (ALJ) determined that Mohamed

was permanently and totally disabled and awarded her permanent

total disability benefits. Employer filed a final admission of liability,

admitting to Mohamed’s permanent total disability and authorizing

continuing maintenance care that was reasonably necessary and

related to the injury. Mohamed continued to receive maintenance

care for the next several years.

B. Request for Additional Medical Treatment

¶5 In 2022, Mohamed filed an application for a hearing, seeking

reasonably necessary medical benefits. As relevant here, Mohamed

asked that employer pay for daily attendant services because she

2 experiences terror and decompensates when she is alone.1

Mohamed sought attendant services only to manage her PTSD and

prevent her symptoms from flaring, not for assistance with activities

of daily living such as cooking, cleaning, or personal care. But she

did request accompanied transportation because her panic attacks

made her an unsafe driver.

C. The Hearing

¶6 At a hearing on her application, Mohamed presented evidence

about her PTSD symptoms. She testified that before the armed

robberies she was independent, could drive, and had no problem

being alone. But since the robberies, she testified that she

experiences depression, anxiety, and panic attacks when alone.

She explained that when she is with someone the fear and panic

subside and she feels safe. And she testified that she lives with one

of her three adult children because she can’t be alone.

1 Mohamed also requested that employer pay for a full-time

independent living facility. The ALJ determined that Mohamed failed to prove such long-term care “is reasonably necessary at this time” and dismissed her request as premature. Mohamed didn’t challenge that determination, and we don’t address it here.

3 ¶7 Mohamed’s three adult children also testified. The children

collectively stated that, for the past thirteen years, they’ve each

spent between twenty and sixty hours a week supporting Mohamed.

They confirmed that Mohamed struggles to be alone for any length

of time, can’t be alone in public or at night, and isn’t safe to drive

due to panic attacks. They also explained how they coordinate their

schedules to provide near-constant support to Mohamed, whether

by phone calls, companionship, running errands, or providing

transportation. And each child detailed how Mohamed deteriorates

when she is even temporarily alone and how her symptoms improve

when someone is with her.

¶8 Mohamed next presented Dr. Walter Torres as an expert in

clinical and forensic psychology. He treats patients with PTSD and

first diagnosed Mohamed with PTSD in 2009. Dr. Torres

reevaluated Mohamed in 2022 and diagnosed her with chronic

PTSD (and an adjustment disorder with depressed mood). He

explained that a core symptom of PTSD is “re-experiencing” the

traumatic event, and that because Mohamed was alone during both

robberies, being alone causes her to re-experience the “terror” of the

robberies. He observed that, while alone, Mohamed

4 “decompensates” and “becomes disorganized” and “overwhelmed,”

which is “immensely stressful emotionally and physically.” And he

opined that Mohamed’s aversion to being alone is not merely a

“preference” but rather a “profound intolerance of aloneness.” He

testified that providing Mohamed with attendant services would

relieve the “trigger” of aloneness and recommended such care for

ten to twelve hours a day for an indefinite duration.

¶9 Employer countered with Dr. Timothy Shea, also an expert in

clinical psychology. Dr. Shea evaluated Mohamed and agreed that

she has PTSD. He opined, however, that attendant services were

not clinically indicated because, in his view, Mohamed was

“behaviorally limiting herself” and “[a]ccommodating the behavioral

avoidance has only contributed to a greater reliance on others.”

Instead, he recommended that Mohamed become more independent

and physically active, though he admitted that Mohamed’s

symptoms “are relieved when somebody is with her” and that being

alone exacerbates her PTSD symptoms.

¶ 10 The ALJ also reviewed reports from Dr. Howard Entin, who

has treated Mohamed since 2009. In a 2022 report, Dr. Entin

noted that despite years of treatment and medication, Mohamed

5 still experienced PTSD symptoms, was avoidant and vigilant in

public, and relied on the presence of others to make her feel safe.

He opined within a reasonable degree of medical probability that

part of Mohamed’s “need” to be with others resulted from the two

robberies.

¶ 11 Crediting Dr. Torres and Dr. Entin, the ALJ found that

Mohamed had proved that attendant services are a “reasonably

necessary and causally related medical treatment to prevent further

exacerbations and flare up” of her continuing chronic and severe

PTSD. The ALJ therefore concluded that employer “shall authorize

and pay” for up to twelve hours of daily attendant care as

maintenance treatment for Mohamed’s work-related PTSD.

¶ 12 In so holding, the ALJ rejected employer’s argument that

attendant services were not compensable because, in employer’s

view, such services were neither medical in nature nor incidental to

other medical treatment. The ALJ explained that, because

Mohamed requested attendant services to treat symptoms that are

causally related to her work-related PTSD, the services were a

medical treatment and were “clearly part of her maintenance

treatment in order to maintain maximum medical improvement and

6 prevent flare-ups or aggravation of her PTSD.” And as to

maintenance care specifically, the ALJ recognized that in its final

admission of liability employer had authorized continuing

maintenance care that was reasonably necessary and related to

Mohamed’s injury.

¶ 13 On appeal, the Panel recognized that ongoing medical benefits

may be awarded after maximum medical improvement when

substantial evidence supports a determination that future

treatment is reasonable and necessary to relieve the effects of the

injury or prevent a deterioration of a condition. The Panel affirmed

the ALJ’s order, concluding that it was “supported by substantial

evidence and applicable law.”

II. Analysis

¶ 14 Employer maintains that attendant services aren’t a

compensable medical treatment under the Workers’ Compensation

Act of Colorado (the Act). Under the circumstances here, we

disagree.

¶ 15 The Act provides a range of benefits to employees injured on

the job. See generally §§ 8-42-101 to -127, C.R.S. 2024. An

employer is specifically required to provide an injured employee

7 “medical, surgical, dental, nursing, and hospital treatment . . . as

may reasonably be needed . . . to cure and relieve the employee

from the effects of the injury.” § 8-42-101(1)(a)(I); see Colo. Comp.

Ins. Auth. v. Nofio, 886 P.2d 714, 716 (Colo. 1994).

¶ 16 We review de novo whether the ALJ and the Panel correctly

applied the law. See Fisher v. Indus. Claim Appeals Off., 2021 COA

27, ¶ 14; § 8-43-308, C.R.S. 2024.

¶ 17 As we understand it, employer argues that because the

requested attendant services aren’t provided by someone with

“specific medical training,” those services aren’t a directly

compensable “medical” treatment under section 8-42-101(1)(a)(I).

But nothing in the statute’s plain language requires that medical

treatment be provided by a skilled provider or someone with

medical training. Rather, the statute requires only that the medical

treatment “cure and relieve the employee from the effects of the

injury.” § 8-42-101(1)(a)(I). And construing the plain language that

way, divisions of this court have concluded that nonskilled services

that cure or relieve an employee’s work-related injury may be

compensable medical treatment under section 8-42-101(1)(a).

8 ¶ 18 For example, in Suetrack USA v. Industrial Claim Appeals

Office, 902 P.2d 854 (Colo. App. 1995), the claimant’s wife provided

him with home attendant services, such as assisting him into and

out of bed, helping him walk and exercise, and maintaining his

hygiene and cleanliness. Id. at 855. An ALJ awarded compensation

for the wife’s services, and the Panel affirmed. Id. On appeal, the

employer argued that the attendant services weren’t compensable

because the wife was not a licensed healthcare provider as required

by other state regulations. Id. A division of this court rejected this

argument, concluding that the spouse’s attendant services were

compensable because, as the ALJ had found with substantial

evidentiary support, such services were reasonably necessary to

treat the claimant’s work-related injury. Id. at 855-56. As the

division observed, even “legally recognized nonmedical treatment” is

compensable so long as it’s “reasonably necessary to relieve

claimant from the effects of an industrial injury.” Id. at 855; accord

Riley Fam. Tr. v. Hood, 874 P.2d 503, 504 (Colo. App. 1994).

¶ 19 Similarly, in Bellone v. Industrial Claim Appeals Office, 940

P.2d 1116 (Colo. App. 1997), the claimant, a single parent,

experienced a work-related head injury that caused seizures,

9 extreme fatigue, depression, mental confusion, and a sleep disorder.

Id. at 1117-18. In addition to other medical treatment, the

claimant’s provider prescribed childcare services to permit the

claimant to attend medical appointments and to rest during the

day. Id. The employer refused to pay for childcare services for the

purpose of allowing the claimant to rest or engage in other

nonmedical appointment activities. Id. An ALJ awarded the

childcare services, but the Panel reversed, determining that the

childcare services weren’t compensable because they were neither

medical in nature nor incidental to obtaining necessary medical

treatment. Id. A division of this court disagreed, concluding that

the childcare services were medical in nature because, as the ALJ

had found with substantial evidentiary support, the services

relieved the symptoms of the claimant’s work-related head injury

and were directly associated with claimant’s physical needs.2 Id. at

1118; cf. Kuziel v. Pet Fair, Inc., 931 P.2d 521, 522-23 (Colo. App.

2 Though not relevant for our purposes, the division in Bellone

alternatively concluded that the childcare services were incidental to medical treatment, and therefore compensable, because the services were provided as part of an overall home healthcare program designed to treat the claimant’s condition. Bellone v. Indus. Claim Appeals Off., 940 P.2d 1116, 1118 (Colo. App. 1997).

10 1996) (holding that childcare services weren’t a compensable

medical benefit because, among other things, the services didn’t

relieve the symptoms or effects of the work-related injury and

weren’t directly associated with the claimant’s physical needs).

¶ 20 Collectively, these cases indicate that a treatment is “medical”

in nature — even if inherently nonmedical or provided by someone

without medical training — so long as the treatment is reasonably

necessary to relieve the symptoms of a claimant’s work-related

injury. Thus, the unskilled attendant services requested by

Mohamed could be a compensable medical treatment if reasonably

necessary to relieve the symptoms of her work-related PTSD.

¶ 21 And whether a particular requested service is medically

necessary to treat a claimant’s work-related injury (or incidental to

obtaining other treatment) is a factual question. E.g., Bellone, 940

P.2d at 1117. We must uphold the ALJ’s factual findings if

substantial evidence supports them. Fisher, ¶ 14; § 8-43-308.

¶ 22 On this factual question, the ALJ found that the attendant

services were causally related to Mohamed’s work-related PTSD and

reasonably necessary to prevent the exacerbation and flareup of her

11 PTSD symptoms. As detailed above, these findings are supported

by substantial record evidence and testimony that showed that

• as a result of her PTSD, Mohamed struggles to be alone for

any length of time, can’t leave the house alone, and isn’t

safe to drive;

• to avoid being alone, Mohamed primarily relies on the

presence and aid of her three adult children, who have each

dedicated between twenty and sixty hours a week to

supporting Mohamed since her injury in 2008;

• when alone, Mohamed re-experiences the trauma

underlying her injury, which worsens her PTSD symptoms,

causes her to decompensate, and is physically and

emotionally stressful for her;

• when in the presence of others, Mohamed’s PTSD symptoms

improve and she feels safe; and

• the requested attendant services would prevent Mohamed

from being alone and thus relieve the symptoms of her

work-related PTSD.

¶ 23 To the extent that employer argues that other inferences could

be drawn from the evidence, it’s the ALJ’s province — not ours — to

12 resolve disputed factual issues and to determine witnesses’

credibility, the weight to accord testimony, and the inferences to be

drawn from the evidence. See Metro Moving & Storage Co. v.

Gussert, 914 P.2d 411, 415 (Colo. App. 1995) (We must “defer to the

ALJ’s credibility determinations and . . . resolution of conflicts in

the evidence, including the medical evidence.”).

¶ 24 We aren’t persuaded otherwise by employer’s related

contention that the attendant services aren’t compensable because

they aren’t incidental to other medical treatment. See, e.g., Country

Squire Kennels v. Tarshis, 899 P.2d 362, 363-64 (Colo. App. 1995)

(collecting cases). Under these unique circumstances, the

requested attendant services aren’t incidental to the medical

treatment that relieves Mohamed’s symptoms (such as

housekeeping services); rather, the attendant services are the

treatment that relieves Mohamed’s symptoms. And Dr. Torres —

whose testimony the ALJ expressly credited — clarified that he

recommended attendant services “solely” for “Mohamed’s work-

related psychological condition” and not “to help her with . . .

cleaning the bathroom and cooking, for example.” Thus, as the ALJ

and the Panel correctly identified, the requested attendant services

13 are a directly compensable medical treatment because those

services are causally related to Mohamed’s work-related PTSD and

reasonably necessary to relieve her PTSD symptoms.

¶ 25 All this said, we see no legal error with the ALJ’s or the Panel’s

application of section 8-42-101(1)(a)(I). And because substantial

evidence supports the ALJ’s findings that unskilled attendant

services are causally related to Mohamed’s work-related PTSD and

reasonably necessary to prevent the exacerbation and flareup of her

symptoms, the Panel didn’t err by affirming the ALJ’s order.3

III. Disposition

¶ 26 We affirm the Panel’s order.

JUDGE NAVARRO and JUDGE GOMEZ concur.

3 The ALJ also found that the attendant services are “clearly part of

[Mohamed’s] maintenance treatment in order to maintain maximum medical improvement and prevent flare-ups or aggravation of her PTSD.” See Grover v. Indus. Comm’n, 759 P.2d 705, 710 (Colo. 1988) (discussing entitlement to medical maintenance benefits after maximum medical improvement). And employer admitted in its final admission of liability that Mohamed was entitled to maintenance benefits. This seems to be a separate basis of compensability that employer doesn’t appear to challenge or address. See § 8-43-201(1), C.R.S. 2024 (specifying the party seeking to modify an issue determined by a final admission of liability bears the burden of proof).