UNITED SHEET METAL COMPANY & LIBERTY MUTUAL INSURANCE COMPANY, APPELLANTS,
v.
WARREN MEYER, APPELLEE

Fla. 1st DCA | 1988-01-14
No. BT-241
WENTWORTH, NIMMONS and ZEHMER, JJ., concur.
520 So. 2d 616 Florida District Court of Appeal, First District (1988) Caution
Cited by 8 cases

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Synopsis

An employer and its insurance carrier appealed a workers' compensation deputy commissioner's order requiring reimbursement for a portable hot tub prescribed as medical therapy. The court affirmed, holding that the claimant need not formally request the equipment before obtaining it when medically necessary, and that a portable hot tub does not trigger the stringent criteria applied to permanent swimming pool installations.


Holding

The court affirmed the reimbursement requirement, limited to the reasonable cost of a portable hot tub. The court held that no statutory or case law requires imposing the consequence of communication failure on the claimant rather than the carrier when a physician recommends necessary medical equipment, and that the stringent Firestone criteria for permanent swimming pools do not apply to portable hot tub installations.


Headnotes

[1] A claimant's failure to request an employer/carrier to furnish equipment does not preclude reimbursement if the nature of the injury required such treatment and the emplo…

[2] A deputy commissioner is not compelled to visit upon the claimant the consequence of a communication failure by an authorized doctor regarding the need for medical equipm…

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Key Quotes

“However, even assuming that the doctor did not send the letter, we find no authority in the language of the statute or in the decisional law compelling a deputy to visit upon the claimant rather than the carrier the consequence of such communication failure by an authorized doctor.”

Establishes that the claimant is not penalized for failure of a physician to communicate with the carrier regarding medically necessary treatment.

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Facts & Procedural History

The claimant was injured and his authorized chiropractor recommended a hot tub for continuous home care therapy to ease muscle spasms, allowing him to…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

In the appealed order, the deputy commissioner required the employer/carrier to reimburse claimant for the cost of a hot tub. The reimbursement was limited to the reasonable cost of a portable hot tub rather than the substantially greater amount actually expended by the claimant for an “in-the-ground” hot tub. We affirm.

The E/C assert that the deputy erred in requiring reimbursement because: (1) prior to the claimant’s acquisition and installation of the hot tub, the claimant failed to request the employer/carrier to furnish such equipment as required by Section 440.13(2)(b), Florida Statutes (1985);1 and (2) the stringent criteria established in Firestone Tire and Rubber Company v. Vaughn, 381 So. 2d 740 (Fla. 1st DCA 1980) and Haga v. Clay Hyder Trucking Lines, 397 So. 2d 428 (Fla. 1st DCA 1981), governing the award of a swimming pool should be applied to the award of a hot tub, and the evidence fails to establish such criteria.

According to the claimant and his authorized chiropractic physician, the latter recommended that claimant obtain a hot tub for continuous home care therapy inasmuch as the claimant was able to continue working in his strenuous occupation only through the assistance of a hot tub to ease muscle spasms. It was in response to this recommendation that the claimant acquired and installed the hot tub. The doctor testified that she wrote a letter to the carrier notifying it of the claimant’s need for a hot tub. She admitted, however, that she could not be sure that the letter was sent and could only assume that the letter was sent although there was no indication to that effect in her office’s “insurance log.”

We agree with appellants that the evidence did not establish that the carrier ever received the doctor’s letter. However, even assuming that the doctor did not send the letter, we find no authority in the language of the statute or in the decisional law compelling a deputy to visit upon the claimant rather than the carrier the consequence of such communication failure by an authorized doctor. With respect to appellant’s other contention that the award was not proper under the standards applied in Firestone Tire & Rubber Co. v. Vaughn, supra, the deputy found claimant “is able to continue working in a strenuous occupation only through the assistance of this hot tub to ease muscle spasms.” The medical testimony supports that conclusion as well as the finding that the hot tub therapy would result in a reduction in the number of physician visits. The deputy’s stated conclusions also accord with the caveat expressed in Firestone to the effect that mere convenience may not suffice to support a choice between public and private facilities for therapy. The deputy’s reference to convenience was expressly limited to a standard of access which “enables Mr. Meyer ... not to disrupt his work routine.” The record does not support a conclusion that appellant proved availability of adequate and more economical alternatives. Finally, installation of a swimming pool on the claimant’s property is one thing. Firestone Tire & Rubber Co. v. Vaughn, supra. Requiring the carrier to furnish a portable hot tub is another. AFFIRMED.

WENTWORTH, NIMMONS and ZEHMER, JJ., concur. . Section 440.13(2)(b) provides:

If the employer fails to provide such treatment, care, and attendance after request by the injured employee, the employee may do so at the expense of the employer, the reasonableness and the necessity to be approved by a deputy commissioner. The employee shall not be entitled to recover any amount personally expended for such treatment or service unless he has requested the employer to furnish the same and the employer has failed, refused, or neglected to do so or unless the nature of the injury required such treatment, nursing, and services and the employer or the superintendent or foremen thereof, having knowledge of such injury, has neglected to provide the same.

Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By

  • …ry apparatus” has been found to encompass a variety of unusual items, including a specially equipped van for a claimant’s use. Edgewood Boys’ Ranch Foundation v. Robinson, 451 So. 2d 532 (Fla. 1st DCA 1984). See also United Sheet Metal Co. v. Meyer, 520 So. 2d 616 (Fla. 1st DCA 1988) (portable hot tub); Butler v. Lanzo Construction Co., 509 So. 2d 965 (Fla. 1st DCA 1987) (air conditioning); Sacred Heart Hospital v. Grafton, 451 So. 2d 1018 (Fla. 1st DCA 1984) (lap pool); Doctors Hospital of Lake Worth v. Robi…
  • Strickland v. Neil's Painting & Travelers Ins. Co., 545 So. 2d 333 (Fla. 1st DCA 1989)
    …enial of reimbursement to claimant of an overpayment credit taken by the employer/carrier (E/C) and remand for entry of a reimbursement order; and we reverse the DC’s average weekly wage (AWW) calculation and remand. In United Sheet Metal v. Meyer, 520 So. 2d 616 (Fla. 1st DCA 1988), this court affirmed the DC’s award of reimbursement for costs of a home hot tub. installed pursuant to a doctor’s recommendation. The court pointed out that the E/C did not demonstrate the availability of adequate and more econo…
  • Escambia Cnty. Bd. OF Cnty. Comm'rs v. Phipps, 553 So. 2d 269 (Fla. 1st DCA 1989)
    …Clay Hyder Trucking Lines, 397 So. 2d 428 (Fla. 1st DCA 1981) (“extremely unique circumstances”); Sacred Heart Hospital v. Grafton, 451 So. 2d 1018 (Fla. 1st DCA 1984) (“extremely unique circumstances”). Compare United Sheet Metal Company v. Meyer, 520 So. 2d 616 (Fla. 1st DCA 1988) (“[Rjequiring installation of a swimming pool on the claimant’s property is one thing, [citation omitted] Requiring the carrier to furnish a portable hot tub is another.”). This case is a far cry from the compelling circumstance…

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