Howie v. Pennington County

HENDERSON, Justice

(specially concurring).

Although I concur in the spirit' of this opinion, which is to grant a reversal because of a definite and firm conviction that a mistake has been made, Guthmiller v. S.D. Dept. of Transp., 502 N.W.2d 586, 588 (S.D.1993), the implementation of the reversal is too restrictive. Restrictive in the sense that this case will be remanded for further evidence to determine if it is medically necessary for the spa to be indoors. I do agree that the costs of the spa being indoors “must be reasonable.” And I further maintain, as does the majority opinion, that the structure for the spa should be limited to “access for necessities” to use the spa. R & T Construction v. Judge, 323 Md. 514, 594 A.2d 99, 107 (1991).

In Pennington County’s and American States Insurance Company’s brief, it is ex*649pressed, “We are not arguing about the spa; it’s appropriateness is not at issue. The fight is about whether it must be indoors.” Howie testified that “the home was too small to house the spa and the floor structure will not support the weight of the spa.” There is no evidence to the contrary. Furthermore, the permanently and totally disabled claimant expressed that the spa could be put “in the barn,” but the winter temperatures were too cold to do so. This is factually undisputed. Therefore, the leap of induction is simply that the home spa therapy pool for claimant’s use, of necessity, must be “in” her home. A therapeutical pool in a cold barn is impractical. Dr. Goffs medical approach was to grant claimant comparable treatment to a hospital setting and treatment. This was a medical conclusion of “suitable and proper care,” per the language contained in SDCL 62-4-1.

Per claimant’s testimony, she had to have access with minimal use of her hands and was required to have some heat so as to protect her from the elements of South Dakota winter.

Thus, in my judgment, the remand should be limited to simply the reasonable costs for the spa which would be enclosed or placed indoors. I differ with the majority opinion in that the medical necessity of placing the spa indoors, in my opinion, is a given.

I am authorized to state that Justice WUEST joins this writing.