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VIRGINIA ...

    VIRGINIA 03/08/00 IN THE WORKERS‟ COMPENSATION COMMISSION

    Affirmed by the Court of Appeals at

    Record No. 0800-00-2 (August 22, 2000)(unpublished)

PATRICIA MARCHELE CHOWNING, Claimant

     Opinion by TARR

     Commissioner v. Claim No. 183-08-25

     REYNOLDS METALS COMPANY, Employer

     PACIFIC EMPLOYERS INSURANCE COMPANY, Insurer

Gregory Harbison, Esquire

    3805 Cutshaw Avenue

    Suite 414

    Richmond, Virginia 23230

    for the claimant

Patricia C. Arrighi, Esquire

    Suite 204, 7301 Forest Avenue

    Richmond, Virginia 23226

    for the defendants

    REVIEW on the record before Commissioner Tarr, Commissioner Diamond and

    Commissioner Dudley at Richmond, Virginia.

     The employer requests Review of the Deputy Commissioner‟s August 12, 1999, Opinion

    finding the claimant‟s installation of a home hot tub reasonable and necessary medical attention

    1under Code ? 65.2-603. We AFFIRM.

     1 Upon consideration of the issues presented, the record developed at the hearing, and the well

    considered briefs filed by the parties on review, we find that oral argument requested by the

    employer is not necessary and would not be helpful in this case. Barnes v. Wise Fashions, 16 Va. App. 108, 428 S.E.2d 301 (1993).

     VWC File No. 183-08-25

     The claimant suffered a compensable injury to her left hand on December 7, 1994. She

    was paid benefits under various awards, the most recent award dated July 31, 1997. On April 3,

    1999, the claimant filed an application seeking reimbursement of the cost of installing a

    therapeutic whirlpool bath in her home.

     On December 7, 1994, the claimant suffered a crush injury when her left hand was

    caught in a roller. The claimant testified that she continues to suffer from swelling, pain,

    tingling, burning, and numbness running from her fingertips to her shoulder and neck as well as

    her legs. She has been diagnosed with RSD. She has had approximately 45 stellate ganglion

    blocks.

     The claimant received a prescription from her doctor in April 1998 for a hot tub. She

    stated that she faxed this prescription to the employers‟ claims adjuster and discussed with him

    the purchase of a home health spa. She then purchased a hot tub for her home. In the meantime,

    the carrier offered the claimant a membership at Robious Sports and Fitness Center. She stated

    that she went seven or eight times and found relief from her pain. The center, however, closed

    at 10:00 p.m. and she had to drive 27 miles, 45 minutes one way, to get to the center.

    The claimant stated that her RSD flares up in the evenings and early morning hours. She

    uses her home hot tub everyday, several times a night, usually in the early morning hours when

    the health center is closed. It has provided significant pain relief.

     She explained that the home hot tub is different from the one at the health club in that

    there are therapeutic jets on this one and when she feels her pain coming on she can go outside

    and get right into the hot tub. Her home hot tub is also deeper than the one at the health club,

    and she can get her whole arm and neck into the water. At the health club, she could only get in

    about six inches below her neck.

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     VWC File No. 183-08-25

    The claimant testified that she already had the home hot tub when she accepted the health club membership from the employer. She stated that she accepted the membership even

    though she had a hot tub at home because she felt that she could not refuse it. She stopped

    going to the health center because the chlorine in the pool bothered her and she did not have

    access to the club in the middle of the night when her pain was at its worst.

     Glenn Parker, the employer‟s claims adjuster, testified that he first became aware of the April 16, 1998, prescription for a hot tub on April 5, 1999. He did, however, remember

    speaking with the claimant and her asking him about a hot tub. He said that the claimant was

    offered a health club membership in June of 1998, and the claimant was going to investigate to

    see which facility appealed to her most. She chose the Robious facility. Parker received the bill

    for the three-month membership dated August 17, 1998, for $417.00. He was never made

    aware that the health membership was unsatisfactory to the claimant. Parker was unaware of

    any health clubs that were open 24 hours and believed that both clubs in the area closed at 10:00

    p.m.

    The claimant treated with various physicians. In January 1998, she began treating with a pain specialist, Dr. William Smith, who performed numerous stellate ganglion blocks and

    diagnosed sympathetically maintained pain. On April 16, 1998, Dr. Smith provided a formal

    prescription for a “hot tub spa – one that she will be able to soak entire [left] arm, shoulder &

    neck in.” In a June 10, 1998, report, Dr. Smith noted that the heat helps her hand and arm a

    great deal. He stated that the claimant requested that he support her efforts to obtain a whirlpool

    tub which can deliver warmth to her upper extremity. Dr. Smith agreed to assist her because “I

    feel that it certainly could help her.” In his July 16, 1998, report, Dr. Smith wrote that the

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     VWC File No. 183-08-25 claimant was about to have a home hot tub installed that would deliver warmth to her hand and

    arm which he felt would help her symptoms.

    Dr. Smith continued to perform the stellate ganglion blocks. On December 14, 1998, he

    listed a diagnosis of RSD, left hand. On January 27, 1999, he diagnosed “[c]omplex regional pain syndrome, left hand.”

    On November 9, 1998, the claimant was examined by Dr. Timothy Deer. Dr. Deer

    noted that the claimant had undergone surgery on her left arm and received a series of stellate

    ganglion blocks. The blocks gave her only temporary improvement, and her hand pain persists.

    Dr. Deer reviewed the claimant‟s prior treatments and noted that physical therapy had been

    helpful, “particularly the hot tub therapy.” He diagnosed complex regional pain syndrome and

    recommended a trial spinal cord stimulation system.

    Dr. Smith completed a physician‟s report drafted by the claimant‟s attorney. Dr. Smith

    stated that the spa was reasonable because it “warms the extremity, which can be very cold with

    this illness.” He stated, “I feel that there is sound physiological evidence that it can have the

    potential of helping her condition.”

     On Review, the employer argues that the home hot tub was not reasonable and necessary

    medical treatment, that the hot tub was not prescribed by the treating physician, that the

    claimant did not prove that the health club membership was medically insufficient to meet her

    needs, and that the employer was denied an opportunity to mitigate the costs of the home spa.

     We first conclude that the home health spa was prescribed by Dr. Smith. Dr. Smith

    wrote a prescription on April 16, 1998, for a “hot tub spa.” His notes from June 10, and July 16,

    1998, indicate that he was supporting the claimant‟s effort to obtain a hot tub and that she was

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     VWC File No. 183-08-25 having it installed in her home. From this evidence, we conclude that the physician prescribed

    the home health spa.

     We next consider whether the claimant proved that the home hot tub was reasonable and

    necessary medical attention under Code ? 65.2-603. The Commission has considered a similar

    issue on several occasions. In Libengood v. Dagenhart Sprinkler Co., 70 O.I.C. 287 (1991), the

    treating doctor prescribed “. . . a „hot tub‟ for medical treatment of the above patient. This is a

    therapeutic whirlpool device . . .” Notwithstanding this prescription, the Commission held, ”we

    cannot find that it is either reasonable or necessary that the claimant have his own private hot

    tub. Whirlpool therapy is available through many facilities.”

     In Foster v. City of Chesapeake Police Dept., VWC File No. 143-31-63 (March 24, 1993), the claimant‟s treating physician wrote that the claimant “may be helped by having

    access to a whirlpool. I believe that this will benefit to him to have symptomatic relief from his

    arthritic condition of the cervical and lumbar spine. . . . I know of no other method which would

    help in the same way as this.” The Commission found that there had not been an actual

    prescription for a whirlpool, but only the doctor‟s note that one might help the claimant. Even assuming that there had been a prescription for this device, the Commission found that it was

    not reasonable and necessary for the claimant to have the appliance in his home, in light of the

    Deputy Commissioner's finding that several facilities in his geographic area provide such

    services and the employer was willing to bear that cost.

    In Wheat v. Southern Erectors, Inc., VWC File No. 163-23-91 (May 30, 1995), the claimant had access to local whirlpool facilities. The doctor noted that the claimant‟s condition, after ten months of whirlpool treatment at local facilities, had plateaued and that home

    whirlpool therapy was necessary to maintain the level of recovery. The doctor also noted that

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     VWC File No. 183-08-25 the home spa would constitute a cost savings to the insurer. The Commission noted that the

    “only justification for a home whirlpool provided by the claimant‟s physician was that it would

    provide a cost savings to the carrier, not that it was necessary or required for the claimant‟s

    recovery.” Thus, the Commission held, “we cannot find that a home whirlpool costing about

    $5,000.00 is reasonable or necessary since adequate whirlpool therapy is available and the

    carrier is willing to pay for that therapy and related transportation costs.”

     Most recently, in Gillespie v. Tuck Clinic, 77 O.W.C. 219 (1998), the Commission found the installation of a hot tub in the claimant‟s home a reasonable and necessary medical

    expense. One of her doctors gave her a prescription for a hot tub with spa jets for her

    permanent back injury. The medical records showed that the claimant was allergic to most pain

    medications and it took the claimant 45 minutes to get to the nearest pool. The Commission

    noted that one of the doctors believed that a hot tub in the claimant‟s home was “mandatory.” Accordingly, the Commission concluded that a hot tub at home was “the best method” of

    providing hydrotherapy of a particular kind for the claimant‟s back and persisting chronic pain.

     The Deputy Commissioner found that the claimant credibly testified that her pain is

    worse at night, and that she finds significant pain relief by using the hot tub at all hours of the

    night. With the home hot tub, she can take advantage of the hydrotherapy at the first sign of

    increasing pain. The health club, on the other hand, closes at 10 p.m. so it is inaccessible during

    the claimant‟s late night bouts of pain. Furthermore, like in Gillespie, the claimant has to travel 45 minutes each way to get to the health club. Additionally, the hot tub at the health club does

    not allow her to soak her entire neck like the home spa permits. Dr. Smith prescribed a hot tub

    in which the claimant could soak her entire arm, neck, and shoulders. The home hot tub, unlike

    the health club spa, permits this. We conclude that the home hot tub is “the best method” of

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     VWC File No. 183-08-25

    providing the claimant with pain relief. A health club membership is not equivalent to this

    therapy given its limited hours of operation during the claimant‟s severest pain and its

    2 considerable distance from the claimant‟s home.

     We also agree with the Deputy Commissioner that the claimant was not required to

    obtain pre-authorization from the carrier to purchase the health spa. As the Deputy

    Commissioner noted, if the evidence showed that her purchase was not reasonable or necessary

    or that the cost was excessive, she acts at her peril and bears the cost herself. She is not,

    3however, required to seek and obtain pre-authorization before purchasing the equipment.

     The Opinion below is AFFIRMED.

    APPEAL

     This Opinion shall be final unless appealed to the Virginia Court of Appeals within

thirty days from receipt of this Opinion.

    c: Patricia Marchele Chowning

     Box 183

     Powhatan, Virginia 23139

     Reynolds Metal Company

     P. O. Box 24688

     Richmond, Virginia 23224

     Pacific Employers Insurance Company

     P. O. Box 6916

     Richmond, Virginia 23230

     2 We note that the Deputy Commissioner correctly deducted “from the employer‟s

    responsibility the sum of $417.00, representing the cost of the club membership, which was

    clearly unnecessary and duplicative.”

     3 The Court of Appeals has held that “[r]eimbursement for unauthorized medical treatment

    should be the rare exception. When an employee seeks treatment other than that provided by the

    employer or ordered by the commission, he or she does so at his or her own peril and risks not

    being reimbursed.” Shenandoah Products v. Whitlock, 15 Va. App. 207, 212-213, 421 S.E.2d

    483, 486 (1992). The employee may avoid the risk of non-payment for medical care by

    obtaining approval from the commission or the employer. Id.

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