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Acree v. Mid-Century Insurance5/28/1998
Appeal from the District Court of Montezuma County
Honorable Sharon L. Hansen, Judge
No. 95CV102
JUDGMENT REVERSED AND CAUSE REMANDED WITH DIRECTIONS
Division I
In this action to recover personal injury protection (PIP) benefits, plaintiff, Cherol Acree, appeals the summary judgment entered in favor of defendant, Mid-Century Insurance (insurer). We reverse and remand for further proceedings.
Plaintiff was injured in an automobile accident in 1990 and timely received PIP benefits from insurer. In 1995, her physician wrote a letter to insurer stating:
[Plaintiff's] longstanding Myofascial Pain Syndrome is again evident . . . . [Plaintiff] could potentially receive adequate therapeutic benefit from Hydrotherapy and avoid the need for future injections. Unfortunately, a simple Jacuzzi-type jet attached to a regular bathtub is inadequate to treat the area of involvement in her upper back and neck. I strongly recommend that she obtain a Jacuzzi-type Hot tub in which she can fully submerse her entire body once or twice a day in order to achieve maximum therapeutic benefit. The alternatives are long-term physical therapy and medications which are potentially much more costly and less effective . . . .
The physician then wrote a prescription for a "Jacuzzi hot tub large enough for total body submersion for chronic muscle spasms and myofascial pain syndrome." Insurer offered to pay for hot tub therapy, but plaintiff rejected this overture. She advised insurer that, in her sparsely populated area, there was only one hot tub in town that was available for public use. That hot tub was located at a motel, and was available for public use only until 2:00 p.m.; plaintiff's employment schedule required her to work past 2:00 p.m. Plaintiff then submitted to insurer a copy of her physician's prescription and an invoice for the purchase of a hot tub, but insurer refused to pay.
Thereafter, plaintiff filed this action seeking to require insurer to pay for the hot tub. Insurer denied that payment was required, relying on Section 10-4-706(1)(c)(II)(A), C.R.S. 1997, which requires that a procedure, treatment, or course of rehabilitation must meet the following standards:
A healing art procedure or treatment which, for the purposes of this part 7, shall include any system, treatment, operation, diagnosis, prescription, or practice for the prevention, ascertainment, cure, relief, palliation, adjustment, or correction of any human disease, ailment, deformity, injury , or unhealthy or abnormal physical or mental condition, or any other nonmedical care or treatment rendered in accordance with a recognized religious method of healing.
Insurer argued that, in order for a hot tub to be covered by that statute, it would have to be an item that had to be ordered by prescription. Citing to Section 12-22-102(22.5)(a), C.R.S. 1997, insurer asserted that a prescription "order" means "any order, other than a chart order, authorizing the dispensing of a single drug or device that is written . . . by the practitioner . . . ." It noted that Section 12-22-102(27), C.R.S. 1997, defines "practitioner" as a person authorized by law to prescribe any drug or device. And, it relied on Section 12-22-102(8), C.R.S. 1997, which defines "device" as: "an instrument, apparatus, machine, contrivance, or implant or a similar or related article other than a drug, including any component part or accessory . . . ." Thus, insurer argued, because a hot tub is not an item which requires a written order from a practitioner, nor is a hot tub required by either state or federal law to be prescribed by a practitioner and dispensed
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