Alabama Workers' Comp Blawg

Alabama Court Holds that Walk-in Tub Qualifies as Other Apparatus but is not Reasonably Necessary

Flanagan Lumbar Co., Inc. v. Tennison

Released August 22, 2014

The Alabama Court of Civil once again ruled that devices to be considered "other apparatus" set out in §25-5-77(a) of the Alabama Workers’ Compensation Act should be decided on a case by case basis. The Court of Civil Appeals pointed out that the Alabama Supreme Court has previously ruled in Ex parte Mitchell, 989 So. 2d 1083, 1092 (Ala. 2008) that the definition of "other apparatus" is an item that is "(a) reasonably necessary and (b) intended to improve the injured employee’s condition, to prevent the further deterioration of the employee’s condition, or to relieve the employee from the effect of his condition by restoring the employee to a basic level of appearance or functioning. The determination of what constitutes a reasonably necessary ‘other apparatus’ should be made on a case-by-case basis."

Tennison had settled his worker’s compensation claim for a back injury with Flanagan Lumbar and medical benefits were to be left open. Tennison’s authorized treating physician was Dr. John Roberts. At some point during treatment Dr. Roberts recommended pool therapy. However, Tennison indicated that this made his condition worse so he stopped going. Some time later Tennison presented to Dr. Robert’s and asked that he prescribe a walk-in bathtub for Tennison’s home. Tennison told Dr. Robert’s he had not had an actual bath in 3 years and was unsteady stepping in and out of the regular tub in his home. He also told Dr. Robert’s the water would benefit him and allow him to do his general strengthening exercises at home rather than go to water therapy. Based on this request Dr. Robert’s recommended that the walk-in tub be approved as reasonably necessary. Dr. Robert’s stated in his letter to the carrier that he felt the walk-in tub would help prevent falls getting in and out of the tub and that because of Tension’s disability and de-conditioned body the walk-in tub was reasonable. Flanagan Lumbar refused to approve the walk-in tub and Tennison sought relief from the Circuit Court of Limestone County. The trial court reviewed deposition testimony from Tennison as well as deposition testimony from Dr. Roberts and found that the walk-in tub met the definition of "other apparatus" and, therefore, should be paid for by Flanagan Lumbar. Flanagan Lumbar appealed the decision which the Alabama Court of Civil Appeals reviewed de novo, having to give no weight or deference to the trial court’s findings of fact based on the only evidence presented being via deposition and not live testimony.

On appeal the Alabama Court of Civil Appeals stated that the walk-in tub in this case did meet the definition of "other apparatus" because Dr. Robert’s testified that the walk-in tub was not solely to allow Tennison a access to the bath, unlike like the scooter lift in Ex parte Mitchell. In this case Dr. Robert’s testified that the walk-in tub was a method to prevent falling and water therapy could assist with back pain. Therefore, a walk-in tub could meet the definition of "other apparatus" and did in this case. However, the Court of Civil Appeals then turned to whether substantial evidence was presented to support that the tub was reasonably necessary to 1)improve Tennison’s condition, 2) to prevent the further deterioration of his condition, or 3) relieve him from the effect of his condition by restoring him to basic level of function and appearance.

The Court of Civil Appeals stated that the walk-in tub would not improve his condition based on Dr. Robert’s testimony that he did not believe anything would improve Tennison’s condition. Dr. Robert’s stated that the tub would be helpful to provide potential and temporary pain relief but the Court of Civil Appeals stated that this does not constitute improving someone’s condition. The Court of Civil Appeals also pointed out that reducing the fall risk would not meet the standard in order to establish improving one’s condition. 

They then turned to whether it would prevent Tennison’s condition from deteriorating. Dr. Robert’s testified that if Tennison did not get the tub his condition would probably not deteriorate. While Dr. Robert’s testified that it would help prevent Tennison from falling, there was no evidence to support that presented at trial. In fact, the Court of Civil Appeals pointed out that Flanagan Lumbar had present an alternative transfer bench that costs much less than the $18,500.00 walk-in tub.

The Court of Civil Appeals went on to find that the potential temporary symptom relief would not rise to the level of restoring Tennison to the basic level of function and appearance. While Dr. Robert’s testified that it might be helpful from a hygienic standpoint, there was no testimony that Tennison’s showers were inadequate for this.

As a result, the Alabama Court of Civil Appeals ruled that a walk-in tub can meet the definition of "other apparatus" but in this case the evidence did not establish that the walk-in tub was reasonably necessary.

Judge Terry Moore wrote in concurrence to point out that he questioned whether the case should be reviewed de novo and whether the tub actually met the definition of "other apparatus." Judge Moore pointed out further evidence to support his concurring opinion which included Tennison testifying that pool therapy had made his back worse so he stopped going, as well as Dr. Robert’s testifying that the walk-in tub would not be big enough to perform the strengthening exercises, which Tennison claims was the reason for getting the walk-in tub. Judge Moore also pointed out the Dr. Robert’s recommendation for the walk-in tub was based solely on the employee’s request for the tub as opposed to medical reasons that would meet the requirements set out in Ex parte Mitchell. Therefore, Judge Moore did not feel the walk-in tub in this case would meet the definition of "other apparatus" as the majority opinion stated. However, he did agree that if it did meet the definition sufficient evidence was not presented to establish it was reasonably necessary.

MY TWO CENTS:

When dealing with a recommendation for a medical device/aid requested pursuant to the "other apparatus" provision of §25-5-77(a) make sure the authorized treating physician gives a detailed explanation of his reason behind ordering the device and not just that he or she believes it is reasonably necessary.

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ABOUT THE AUTHOR

The article was written by Joshua G. Holden, Esq. a Member of Fish, Nelson & Holden, LLC, a law firm dedicated to representing employers, self-insured employers and insurance carriers in workers’ compensation and related liability matters. Mr. Holden is AV rated by Martindale-Hubbell, which is the highest rating an attorney can receive. Holden and his firm are members of The National Workers’ Compensation Defense Network (NWCDN). The NWCDN is a national and Canadian network of reputable law firms organized to provide employers and insurers access to the highest quality representation in workers’ compensation and related employer liability fields.

If you have questions about this article or Alabama workers’ compensation issues in general, please feel free to contact the author at jholden@fishnelson.com or 205-332-1428.