Smith v. Tompkins County Courthouse

• Decision Date: 29 November 1983
• Citation: 471 N.Y.S.2d 46,459 N.E.2d 155,60 N.Y.2d 939
• Parties: , 459 N.E.2d 155 In the Matter of the Claim of Douglas SMITH, Sr., Claimant, v. TOMPKINS COUNTY COURTHOUSE et al., Respondents. Workers' Compensation Board, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 46

471 N.Y.S.2d 46

60 N.Y.2d 939, 459 N.E.2d 155

In the Matter of the Claim of Douglas SMITH, Sr., Claimant, v. TOMPKINS COUNTY COURTHOUSE et al., Respondents. Workers' Compensation Board, Appellant.

Court of Appeals of New York.

Nov. 29, 1983.

Robert Abrams, Atty. Gen. (Henriette B. Frieder, and Peter H. Schiff, Asst. Attys. Gen., of counsel), for appellant.

Thomas J. Spargo, Albany, and Raymond C. Green, New York City, for State Insurance Fund, respondent.

Martin Luster, Trumansburg, for claimant.

OPINION OF THE COURT MEMORANDUM.

The order of the Appellate Division, 91 A.D.2d 801, 458 N.Y.S.2d 48 should be reversed, without costs, and the decision of the Workers' Compensation Board reinstated.

Claimant, a deputy sheriff of Tompkins County, injured his back when a motorcycle collided with his patrol car during the course of his employment. He was hospitalized on two occasions following the accident and received numerous treatments for relief of back pain. When these treatments failed, claimant's orthopedist requested authorization from the insurance carrier for claimant to swim at either of two local motel pools as a rehabilitative measure. The orthopedist also noted that swimming instruction would be required inasmuch as claimant had never learned to swim. After the carrier rejected or ignored these requests, a referee conducted a hearing and ordered the carrier to negotiate and provide a swimming facility for claimant in the Ithaca area. The Workers' Compensation Board affirmed this determination. The carrier then appealed and the Appellate Division reversed, concluding from its interpretation of section 13 of the Workers' Compensation Law that supervised swimming was not an authorized treatment.

The sole issue presented is whether the requirement to provide swimming facilities and instruction in the circumstances of this case is authorized by section 13 of the Workers' Compensation Law. We hold that it is.

Subdivision (a) of section 13 of the Workers' Compensation Law requires the employer and/or its insurance carrier to provide prompt medical treatment for an injured employee, covering "such medical surgical, optometric or other attendance or treatment, nurse and hospital service, medicine, optometric services, crutches, eyeglasses, false teeth, artificial eyes and apparatus for such period as the nature of the injury or the process of recovery may require" (emphasis added). The Appellate Division found that such a program was not explicitly authorized by the statute and that it was not encompassed by the broad phrase "other attendance or treatment" because a swimming instructor, unlike a physiotherapist or other enumerated professionals or paraprofessionals, is not explicitly authorized to render treatment under the active supervision of an authorized physician under other sections of the law (see Workers' Compensation Law, §...