August 18, 2019

Colorado Court of Appeals: Workers’ Compensation Act Does Not Require Employer to Cover Cost of Conservator or Guardian

The Colorado Court of Appeals issued its opinion in Nanez v. Industrial Claim Appeals Office on Thursday, November 15, 2018.

Workers’ Compensation—C.R.S. § 8-42-101(1)(a)Conservator or Guardian ServicesMedical Treatment.

While working as a plumber, Nanez sustained permanent disabling closed-head injuries, causing significant cognitive deficits. His authorized treating physician (ATP) placed him at maximum medical improvement with a permanent impairment rating of 47% of the whole person. His employer admitted liability. As a result of his cognitive impairments, Nanez’s ATP recommended that both a conservator and guardian be appointed to function as Nanez’s “peripheral brain.” Both were appointed, and Nanez requested his employer pay for them pursuant to C.R.S. § 8-42-101(1)(a). He also asked that his average weekly wage (AWW) be increased to cover his lost potential earning capacity. Both requests were denied by an ALJ, and the denial was affirmed by a panel of the Industrial Claim Appeals Office (Panel).

On appeal, Nanez contended that his employer should be liable to pay for the guardian and conservator. He contended that their services are medical benefits because they relieve the effects of his brain injury. The court of appeals found support for the ALJ’s findings that the conservator’s services handling Nanez’s finances didn’t cure or relieve him of the injury’s effects, and Nanez failed to establish that the guardian’s duties in managing his treatment and ongoing care were reasonable and necessary. The court concluded that the conservator’s and guardian’s services were not medical treatment as that term is used in C.R.S. § 8-42-101(1)(a) and therefore the employer was not liable to pay for them.

Nanez also contended that the Panel erred in affirming the ALJ’s denial of the AWW increase. The ALJ’s decision declining the increased AWW because Nanez’s potential future wages are too speculative is supported by substantial record evidence, and the Panel properly affirmed it.

The order was affirmed.

Summary provided courtesy of Colorado Lawyer.

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