Injured Portsmouth worker must pay for own hot tub

PORTSMOUTH

The Portsmouth school division is no longer on the hook for an employee's six-seater hot tub.

On Tuesday, the state Court of Appeals reversed a Workers' Compensation Commission decision requiring that the division pay for a $5,200 spa pool for Harvey Maurice Harris, an employee who injured his left shoulder in September 2005, a court document says.

Harris, a bus driver, has been employed with Portsmouth schools since 2005. Attempts to reach Harris for comment Tuesday were unsuccessful. His attorney, John H. Klein, declined to comment because he said he had not seen the court's decision. Audrey Marcello, attorney for the school division, did not immediately return a phone call Tuesday afternoon.

According to an appeals court document, Dr. Felix Kirven prescribed a tub for Harris about three years after he was injured. The same day, the document says, Harris asked claims adjuster Wyvette Johnson whether he would be reimbursed for it, and Johnson said he would not. The next day, Johnson received a copy of Harris' spa pool prescription from the doctor's office. Soon after, Harris bought a $5,200 six-person spa pool, according to the document.

Four days later, the adjuster inquired in writing whether Harris could receive therapy at a center, but Kirven did not respond, the document says, and the adjuster did not investigate further.

Kirven had not recommended the particular spa pool Harris bought, the document says, and Harris "testified he later saw smaller spa pools that seated fewer than six people."

The Virginia Workers' Compensation Commission backed up the deputy commissioner's decision that the division should pay for a spa pool because employers are "to provide necessary medical treatment for a compensable injury, including any appliances prescribed by the claimant's treating physician."

Further, the commission "noted the record contained no evidence from Dr. Kirven that other forms of water therapy, rather than a six-person home spa pool, would have been equally helpful or available to claimant."

But the state appeals court found otherwise.

"There is certainly no evidence that claimant needed to purchase a six-person hot tub for his home," Judge Robert P. Frank wrote. "Dr. Kirven's prescription did not call for a 'home' spa pool, nor did it call for a spa pool capable of seating six people. In other words, he never prescribed this specific appliance."

Cheryl Ross, (757) 446-2443, cheryl.ross@pilotonline.com