Virginia Court of Appeals nixes 6 person spa pool as treatment under workers compensation

In Portsmouth School Board v Harris, No. 0026-11-1 (Va. App. July 19, 2011), the Court reversed a decision by the Virginia Workers Compensation Commission, which held that the employer was responsible for paying for a six-person spa pool purchased by the claimant, as physician-ordered treatment which was reasonable, necessary, and related to his work-related injury.

Following a compensable injury to his shoulder, the claimant consulted with Dr. Felix Kirven, an orthopedic surgeon, about ongoing swelling, stiffness, and soreness in his back. Claimant saw a spa pool with massage jets, and mentioned it to Dr. Kirven. Dr. Kirven thereafter wrote a letter indicating that the claimant would benefit from a spa pool. The record did not indicate that the letter was sent to the employer, and there were neither medical reports or progress notes that mentioned the spa pool. However, Dr. Kirven did write the claimant a prescription for a spa pool. The claimant then asked the claims adjuster whether a spa pool would be reimbursed. The adjuster requested documentation from Dr. Kirven, and in response to a fax containing the prescription, inquired whether the claimant could attend therapy at a center that offered whirlpool or aquatic therapy. There was no response to that inquiry.

Five days later, the claimant purchased a six-person spa pool for $5,200. Dr. Kirven had not recommended this particular spa pool.

The Virginia Workers Compensation Commission held that the employer was responsible for payment for the spa pool, noting that Va. Code sec. 65.2-603(A)(1) requires an employer to provide necessary medical treatment for a compensable injury, including any appliances prescribed by the claimant's treating physician. Dr. Kirven had prescribed a spa pool, and there was no medical evidence to the contrary, and no medical evidence that other forms of water therapy would have been equally helpful or available to claimant. The employer then appealed.

The employer appealed, raising the issue whether the commissioner erred in finding that claimant met his burden of proof to show that his purchase of a spa pool was reasonable and necessary, and related to his work injury. The appellate court identified a threshold issue, which was what limits, if any, apply to a non-specific, generalized and generic physician's prescription for treatment.

The Court reversed, finding that the claimant failed to demonstrate that the six-person home spa pool was medically necessary. Nothing in the record indicated that the claimant could not receive similar treatment (water/heat therapy) elsewhere. Dr. Kirven never indicated that claimant was unable to obtain the same treatment at a fitness/health center. Dr. Kirven's prescription did not call for a "home" spa pool, nor did it call for a spa pool capable of seating six. Dr. Kirven did not prescribe this specific appliance.

The appellate court concluded that:

[W]hen a treating physician prescribes an unspecific, generalized, and generic treatment, the claimant must present evidence that such treatment is medically necessary such as evidence that alternative treatment is not adequate, or available medical testimony elaborating on the non-specific prescription, or documentation of the need for the specific treatment obtained by claimant. This list is not exhaustive. Claimant cannot, with unbridled discretion, choose any treatment that falls within the non-specific prescription.

[Ed. Note: Inquiries about Virginia workers compensation issues or claims may be directed to John H. Carstens, Esq., in our Fairfax, Virginia office.]