Case # 90601772
Date of Accident: 09/09/2005
District Office: Syracuse
Employer: Otsego Manor
Carrier: Otsego Co. Self-Insurance Plan
Carrier ID No.: W860001
Carrier Case No.: OTO-042-05
Date of Filing of Decision: 03/29/2012
Claimant's Attorney: Callanen, Foley & Hobika
Panel: Robert E. Beloten

The Full Board, at its meeting held on February 28, 2012, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed on January 31, 2011.

ISSUE

The issue presented for Mandatory Full Board Review is whether the self-insured employer (SIE) should be required to pay for the installation of a hot tub at the claimant's home.

The WCLJ found that the claimant credibly testified that use of a hot tub helped her condition and authorized the purchase and installation of a home hot tub, with costs not to exceed $7,500.00.

The Board Panel majority affirmed the authorization of the hot tub, but reduced the maximum authorized cost to $5,000.00.

The dissenting Board Panel member found that the hot tub should not be authorized because no basis existed for finding that the hot tub is medically necessary and less expensive alternatives were not explored.

In the SIE's application for Full Board Review, it argues that authorization for the Jacuzzi tub should be denied because less costly alternatives are available. The SIE also notes that the record includes no medical evidence of medical necessity. The claimant did not file a rebuttal.

Upon review, the Full Board votes to adopt the following findings and conclusions.

FACTS

The claimant, a certified nurses' assistant, suffered a work-related injury to her back on September 9, 2005. The SIE did not controvert the claim.On April 28, 2009, the claimant's treating physician, Dr. Johnson, filed a Form C-4 Auth (Attending Doctor's Request for Authorization and Carrier Response) requesting authorization for nerve root injections and a "jacuzzi tub." In the "Statement of Medical Necessity" section of the form, Dr. Johnston noted "tub - heat + pain." No further information regarding the medical necessity of the Jacuzzi tub was included in the Form C-4 Auth, or the April 22, 2009, medical report attached thereto. The medical report did not mention the request for the tub or that any sort of aqua-therapy was discussed. The SIE denied the request pending an independent medical examination.

The SIE's consultant, Dr. Benton, examined the claimant on June 8, 2009. Dr. Benton opined that the claimant was unable to return to her former employment and that she suffered a marked disability. Dr. Benton observed that the claimant was unable to sit for more than twenty minutes at a time without changing position or moving. Dr. Benton noted that, while a Jacuzzi tub would be "beneficial," less expensive alternatives were available, including aqua-therapy.

In a Notice of Decision (NOD) filed August 24, 2009, the WCLJ authorized a Jacuzzi tub. The SIE requested administrative review and, in an MOD filed January 7, 2010, the Board Panel rescinded the WCLJ's authorization. The Board Panel found that the claimant failed to demonstrate with medical evidence that less costly alternatives were available. The Board Panel returned the case to the WCLJ for further evidence.

The claimant testified at a hearing on May 5, 2010. The claimant noted that she had undergone physical therapy, but did not improve as a result. While Dr. Johnson did not prescribe aqua-therapy, the claimant had been using her nephew's hot tub three times per week. The claimant stated that using the hot tub relaxed her and helped her sleep. However, her nephew lived approximately 30 minutes away and the claimant would be stiff again by the time she returned home. The claimant testified that she lives in a rural area, approximately 30 minutes outside of Utica, New York, where the closest public Jacuzzi tubs or aqua-therapy is available. The claimant also stated that, since she is over six feet tall, she cannot fit into a regular tub.

At the close of the hearing, the WCLJ authorized the installation of a Jacuzzi tub with costs up to $7,500.00. The WCLJ's findings were memorialized in a decision filed May 11, 2010.

LEGAL ANALYSIS

WCL § 13(a) requires that "the employer [or the carrier] shall promptly provide for an injured employee such medical, surgical, optometric or other attendance or treatment … for such period as the nature of the injury or the process of recovery may require" (emphasis supplied).

A home Jacuzzi tub could constitute "other attendance or treatment" for purposes of WCL § 13(a) (see Matter of Morrell v Onondaga County, 244 AD2d 695 [1997]). However, the physician requesting authorization for the Jacuzzi must set forth "the specific mechanism and function of the device…indicate his reasoning for finding th[e] device to be a medical necessity, and…clearly relate the need for the device to the compensable injury" (Matter of Allied Technical Svcs., Inc., 2009 NY Wrk Comp 09621734). "In the absence of any documentation of the medical necessity of whirlpool and hydrotherapy treatment in the home rather than at a facility outside the home" (Matter of Dixon v. State Univ. College, 283 AD2d 840 [2001], or evidence that "less costly alternatives" (Matter of Washington v New York City Dept. of Transp., 260 AD2d 827 [1999], lv denied 93 NY2d 812 [1999]) were considered, the Board may deny authorization.

In the present case, insufficient medical evidence supports authorization for a Jacuzzi tub in claimant's home. Dr. Johnson's request for authorization, which states simply "tub - heat + pain," is clearly insufficient to warrant authorization for Jacuzzi tub. While Dr. Benton found that the Jacuzzi tub would be "beneficial," he also indicated that less expensive alternatives were available, including aqua-therapy.

Therefore, the preponderance of the evidence in the record supports a finding that there is insufficient medical evidence to support authorization for a Jacuzzi tub to be installed in the claimant's home.

CONCLUSION

ACCORDINGLY, the WCLJ decision filed May 11, 2010, is RESCINDED, and the claimant's request for authorization for a Jacuzzi tub is denied. No further action is planned by the Board at this time.