- The Washington Times - Sunday, May 13, 2012

The Virginia Court of Appeals has ruled that a museum must pay for an employee’s YMCA membership - as well as mileage to and from the gym - as part of a workers’ compensation package.

A deputy workers’ compensation commissioner had previously denied Frank Lettery’s request for payment for the membership and the mileage, saying that his “independent pool therapy” at the gym had not been not supervised by a doctor.

Commissioner William L. Dudley, Jr., disagreed, citing notes from Mr. Lettery’s treating physician, Dr. Murray E. Joiner, Jr., and his assistant that the prescribed pool therapy was helping.

“Dr. Joiner’s notes reflect that he continued the independent pool therapy as ‘physical therapy,’ and noted the benefits,” Mr. Dudley wrote. “Notably, when the claimant could not continue the therapy, both [orthopedic surgeon] Dr. Campbell and Dr. Joiner noted worsening symptoms and specifically recommended continuation of the pool therapy.”

In 2006, Mr. Lettery, while working for the American Armoured Foundation Tank Museum in Danville, fell and injured his right hip, groin, femur and knee. He went through formal pool therapy with a physical therapist, during which time he sometimes used an underwater treadmill, for a period of about eight months.

His doctor had recommended Mr. Lettery continue the pool therapy on his own for six months in June 2007, but Mr. Lettery admitted in September 2007 that the program had not been authorized by his insurance company. He put it together based on exercises he did in his formal therapy in 2006, like walking in the water and squats. He testified that the YMCA did not have records of how long he stayed or what exercises he performed.

After being awarded continuing temporary total disability and medical benefits in 2008, he filed new claims in 2010 requesting payment for a YMCA membership and for mileage to and from the gym for the “independent pool therapy” prescribed by Dr. Joiner. The insurance company, citing costs, refused to pay for the gym membership.

But in a separate, recent case that does not appear to have been controversial, Dr. Joiner had written a prescription for another patient to undergo independent pool therapy. The commission said the patient’s employer was responsible for paying for the gym membership.

“Likewise, in this case, both Dr. Campbell and Dr. Joiner ordered independent pool therapy for the claimant as reasonable and necessary to treat his work-related injuries,” Mr. Dudley wrote.

American Armoured Foundation Inc. and its insurer subsequently appealed to the state Court of Appeals, which upheld the commissioner’s decision.

Mr. Lettery handled things on his own at the commission level, said Greg Harbison, his lawyer for the appeals case.

“This case in particular and the arguments that were made were pretty unique,” he said. “The doctors were prescribing about the cheapest therapy imaginable.”

Mr. Harbison said that a negative ruling from the court could have resulted in patients - and insurers - opting for more formal, expensive treatments in the future.

“I’m glad we won, but it would have had some pretty far-reaching implications if the Court of Appeals took independent pool therapy out of the Workers’ Compensation Act,” he said.

Mary Louise Kramer, a lawyer for the museum in the case, said they were still weighing whether or not to appeal to the state Supreme Court.

The gym membership wasn’t that much - a couple hundred dollars a year, Ms. Kramer said. But the mileage was getting to be the expensive part - and could go on indefinitely if doctors continued to prescribe that treatment.

Assuming a reimbursement rate comparable to the federal 55 cents per mile that went into effect in October, if Mr. Lettery did a three-day-a-week regimen, the foundation’s insurance carrier would be on the hook for nearly $3,000 a year, for as long as his doctor recommended the treatment.

The appellate opinion issued earlier this month was unpublished, meaning the court does not intend for it to have any official precedential value. But Ms. Kramer said that it will now be more challenging for lawyers to argue similar cases.

“It would be a dead issue for most people,” she said. “Someone would have to figure out another angle to challenge this type of issue.”

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