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A worker for a school board sustained a compensable injury to his left shoulder. He consulted with an orthopedic surgeon about ongoing swelling, stiffness and soreness in his back. The worker saw an advertisement on television for a spa pool with jets that massage the neck, shoulders and lower back. He mentioned the spa pool to his surgeon who wrote a letter indicating that the worker would benefit from a spa pool.

One year later, the surgeon wrote the worker a prescription for a spa pool. On the same day, the worker spoke to a claims adjuster to ask if he could be reimbursed for the spa pool. The adjuster declined, explaining that her file did not contain a recommendation or prescription from the surgeon. The next day, the adjuster received a prescription from the surgeon. The adjuster wrote to the surgeon, asking for details on the recommendation. The adjuster asked if the worker could attend whirlpool or aquatic therapy, rather than purchasing a spa pool for home use. The surgeon did not respond, and the adjuster did not investigate further.

The workers' compensation commissioner found that the board was responsible for payment of the spa pool, noting that an employer is required to provide necessary medical treatment for a compensable injury, including appliances prescribed by the worker's treating physician. The workers' compensation commission affirmed. The board appealed.

Was the commission correct in finding the board must pay for the pool?

A. Yes. The surgeon issued a prescription for a spa pool.

B. Yes. There was no evidence that other forms of water therapy would have been equally helpful or available to the worker.

C. No. The worker failed to show the six-person home spa pool was medically necessary.

How the court ruled: C. The Virginia Court of Appeals held that the school board was not responsible for payment of the worker's spa pool. Portsmouth School Board v. Harris, No. 0026-11-1 (Va. Ct. App. 07/19/11).

The court explained that the surgeon did not prescribe a home spa pool or a pool capable of seating six people. The court concluded that when a treating physician prescribes an unspecific, generalized and generic treatment, the worker must show that the treatment was medically necessary with evidence that alternative treatment was not adequate, medical testimony elaborating on the prescription or documentation for the need for the specific treatment obtained by the worker.

A worker cannot choose any treatment that falls within the nonspecific prescription.

A is incorrect. The court explained that the surgeon's prescription was unspecific and generic. The surgeon did not make a specific order or a determination as to the site of the treatment. The treatment "far exceeded" the treatment authorized by the surgeon.

B is incorrect. The court explained that this showed that the worker failed to establish the six-person spa pool was medically necessary.

Editor's note: This feature is not intended as instructional material or to replace legal advice.

September 14, 2011

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