Conservator or Guardian Services to Permanently Disabled Employees

The principal purpose in requiring an employer to provide medical benefits under the Workers’ Compensation Act is to allow an injured worked to reach maximum medical improvement and maintain that status. This is reflected in C.R.S. § 8-42-101(1)(A)’s language requiring “[e]very employer . . . [to] furnish such medical . . . treatment . . . as may be reasonably needed at the time of the injury . . . and thereafter during the disability to cure and relieve the employee from the effects of the injury.” (emphasis added).

In Nanez, discussing a matter of first impression, the Colorado Court of Appeals addressed whether the language of the act requiring employers to provide reasonable and necessary medical treatment to cure and relieve an employee of the effects of the employee’s injury covers the costs of court appointed conservator and/or guardian services to assist a permanently and totally disabled claimant suffering from a traumatic brain injury.

The Court ultimately held the statutory language of the Act does not cover the costs of conservator or guardian services because such services do not help care for or remedy the injury. Claimant argued that the employer should be liable for the fiduciary services of a court appointed conservator and guardian as they provide relief from his brain injury by acting as a “peripheral brain” to assist him in managing his financial and medical wellbeing as his disability makes it nearly impossible for him to handle daily tasks such as banking, taking medication, following physicians instructions, and managing his money.

The Court rejected this argument, holding that a conservator’s services in handling claimant’s finances do not cure or relieve him of his injury’s effects. The Court agreed with the Panel which wrote that while claimant’s financial situation may improve with such assistance, his physical condition would remain the same. Expanding on that, the Court explained that under the plain language of the statute, expenses must be reasonable and incidental to obtaining medical or nursing treatment related to the claimant’s physical needs. Therefore, because a conservator’s duties are primarily financial and administrative and would not remedy claimant’s cognitive deficiencies caused by his traumatic brain injury, such services do not fall within the purview of the statute.

Additionally, as to the services of a court appointed guardian, the Court held there was substantial evidence in the record to conclude the claimant can and did receive assistance necessary to manage his medical treatment related to his workers’ compensation injury from an employer appointed nurse case manager. On that basis, the Court found the fiduciary services of a court appointed guardian were therefore not “reasonable and necessary.”

Brian Nanez v. ICAO; Mechanical & Piping, Inc.; and Pinnacol Assurance, W.C. 4-922-618 (Colo. Ct. App. Nov. 15, 2018)

Would you like to know more? Contact Eric J. Pollart at epollart@pollartmiller.com or 877-259-5693.

 

From the January 2019 Pollart Miller Newsletter

2019-02-01T08:27:51+00:00