Grover v. Industrial Com'n of Colorado

• Decision Date: 11 July 1988
• Docket Number: No. 87SC188,87SC188
• Citation: 759 P.2d 705
• Parties: Dawna M. GROVER, Petitioner, v. INDUSTRIAL COMMISSION OF COLORADO, Department of Labor and Employment, Pac 'N Save Warehouse Foods, Inc., and Commercial Union Insurance Company, Respondents.
• Court: Colorado Supreme Court

Page 705

759 P.2d 705

Dawna M. GROVER, Petitioner, v. INDUSTRIAL COMMISSION OF COLORADO, Department of Labor and Employment, Pac 'N Save Warehouse Foods, Inc., and Commercial Union Insurance Company, Respondents.

No. 87SC188.

Supreme Court of Colorado,

En Banc.

July 11, 1988.

Rehearing Denied Aug. 15, 1988.

Dawes and Crane, P.C., Robert C. Dawes, Durango, for petitioner.

Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Robert C. Lehnert, Asst. Atty. Gen., Denver, for respondent Industrial Com'n of Colorado.

James R. Clifton & Associates, P.C., Diane Murley, Denver, for respondents Pac 'N Save Warehouse Foods, Inc., and Commercial Union Ins. Co.

Gerald P. McDermott, Paul W. Conaway, Denver, for amicus curiae Colorado Trial Lawyers Ass'n.

QUINN, Chief Justice.

We granted certiorari to review the court of appeals' decision in Grover v. Industrial Comm'n, 739 P.2d 900 (Colo.App.1987), which held that the Industrial Commission (commission), which was replaced in 1986 by the Industrial Claim Appeals Office, ¹ lacked the authority to order, as part of a final award of permanent partial disability in a worker's compensation proceeding, the payment of medical expenses for any medical treatment which the claimant might need subsequent to the date of the final award, and also that the commission had no authority to order an employer to pay the cost of a claimant's child care expenses as part of the claimant's vocational rehabilitation. We conclude that the court of appeals erred in holding that the commission lacked the authority to order the employer to pay for any future medical treatment which the claimant might need to alleviate the effects of the disability and that the court of appeals also erred in holding that the commission had no authority to order the employer to pay the claimant's child care expenses as a service related to the claimant's vocational rehabilitation program. We accordingly reverse the judgment of the court of appeals and remand the case to that court with directions to return the case to the Industrial Claim Appeals Office for further proceedings.

I.

On November 29, 1983, the claimant, Dawna Grover, while working as a meat wrapper at Pac 'N Save Warehouse Foods, Inc., suffered an injury to her neck and shoulders when lifting a box of frozen chicken. Grover was thirty-three years old on the date of the injury and was a single parent of two minor children. Pac 'N Save and its insurance carrier, Commercial Union Insurance Company (collectively referred to as the respondents), admitted liability for the injury and provided medical care and temporary disability benefits to Grover. Because the injury prevented Grover from returning to her former employment as a meat wrapper, the respondents also provided her with vocational rehabilitation services consisting of on-the-job training as a floral designer. During the period of vocational rehabilitation, Grover received weekly rehabilitation maintenance payments equal to two-thirds of her former weekly salary at Pac 'N Save. Grover's vocational rehabilitation counselor recommended that the respondents pay Grover's child care expenses for her two children during her participation in the rehabilitation program. The respondents refused to pay for these expenses, however, so Grover paid for them out of her rehabilitation maintenance benefits with additional assistance from the La Plata County Department of Social Services. Grover successfully completed the rehabilitation program and subsequently obtained full-time employment as a floral designer.

Grover then requested a hearing on the issues of permanent disability and the respondents' responsibility for the payment of child care expenses during her vocational rehabilitation. At a hearing conducted on November 21, 1985, Grover testified that she still had difficulty holding her arms in the air and reaching above a certain height, and that she could not stand for extended periods of time without experiencing pain. She also stated that she took a muscle relaxer, underwent occasional physical therapy, and saw a doctor every two months.

The reports of six physicians who had previously examined Grover during the course of her medical treatment were admitted into evidence and made a part of the record. These reports indicated that Grover still had occasional pain in her back muscles and that her condition was not likely to improve. One of the doctors reported that Grover was at risk of reinjury and that her pain could possibly increase in the future. Another report stated that further medical treatment might be warranted in the event Grover experienced a relapse at some future time. The medical reports differed as to the degree of permanent disability sustained by Grover.

On December 13, 1985, the hearing officer entered a decision awarding Grover permanent partial disability benefits. In his decision the hearing officer made the following pertinent findings: that Grover had reached maximum medical improvement but continued to need periodic medical maintenance care; that she had sustained a 20% permanent disability as a working unit as a result of the injury; and that her child care expenses were a necessary cost of the vocational rehabilitation services, since child care was essential to her ability to receive the benefits of the on-the-job training as a floral designer. In addition to ordering the respondents to pay permanent partial disability benefits to Grover, the hearing officer ordered that "medical care shall remain open and that respondents [shall] continue to pay for reasonable medical, surgical and hospital care necessary to relieve the effects of the injury." The hearing officer also ordered the respondents to reimburse Grover "for the cost of child care during the time she was participating in the vocational rehabilitation plan ... from which reimbursement [Grover] is to reimburse the La Plata County Department of Social Services for any child care expenses paid by it."

The respondents filed a petition for review and the case was referred to the commission. On May 5, 1986, the commission entered an order affirming that part of the hearing officer's decision assessing Grover's child care expenses against the respondents and reversing that part of the decision which left open the issue of medical care. The commission reasoned that "[a] claimant has either reached maximum medical improvement or not, for purposes of both liability for medical benefits and the finality and validity of a finding of permanent partial disability." Because the hearing officer had expressly found that Grover had reached maximum medical improvement and because the record did not establish that a particular course of continued medical treatment was necessary at that time, the commission concluded that the issue of medical benefits was closed subject to the filing of a petition to reopen within the requisite time limitations of section 8-53-113, 3B C.R.S. (1986).

Grover appealed the commission's order. The court of appeals affirmed that part of the order disallowing continued medical benefits after the entry of a final award of permanent partial disability. In the court of appeals' view, "[m]edical benefits can be awarded only until permanent disability has been determined and the final order thereon has been entered," and since the commission's finding was that Grover had reached maximum medical improvement the court of appeals held that the commission had "properly disallowed ongoing indefinite medical benefits." Grover, 739 P.2d at 901-02. The court of appeals reversed that part of the commission's order which awarded child care expenses to Grover. The court construed section 8-49-101(1)(a), 3B C.R.S. (1986), which states that "vocational rehabilitation benefits shall include tuition, fees, transportation, and weekly maintenance equivalent to what the employee would receive for temporary total disability benefits," to exclude any award "for child care expenses, even if [such expenses] are necessary in order to comply with the vocational rehabilitation plan." Id. at 902.

We thereafter granted Grover's petition for a writ of certiorari, which raises the following two questions: (1) whether the court of appeals correctly held that the commission lacked the authority to order, as part of a final award of permanent partial disability, the payment of medical benefits for any ongoing medical treatment necessary to relieve the claimant of the effects of the disabling injury when such treatment will not be received until sometime subsequent to the date of the final award; and (2) whether the court of appeals correctly held that the commission lacked the authority to order an employer to pay the costs of a claimant's child care expenses incurred while the claimant was engaged in a vocational rehabilitation program. Resolution of these questions requires an analysis of those provisions of the Workmen's Compensation Act of Colorado, §§ 8-40-101 to 8-54-127, 3B C.R.S. (1986 & 1987 Supp.), which specifically relate to medical benefits and vocational rehabilitation services. The statutory provisions in effect at the time of Grover's accident and during the course of the administrative proceedings on her claim are found at section 8-49-101(1)(a) and (4), 3 C.R.S. (1985 Supp.), and state as follows:

(1)(a) Every employer, regardless of his method of insurance, shall furnish such medical, surgical, dental, nursing, and hospital treatment, medical, hospital, and surgical supplies, crutches, apparatus, and vocational rehabilitation, which shall include tuition, fees, transportation, and weekly maintenance equivalent to that which the employee would receive under section 8-51-102 for the period of time that the employee is attending a vocational rehabilitation course, as may reasonably be needed at the time of the injury or occupational disease and thereafter during the...