Thursday, November 12, 2009

A 2nd loss for PA Massage Therapists re: workers' comp.

IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Daniel T. Buzard, :
Petitioner :
:
v. : No. 788 C.D. 2009
: SUBMITTED: August 14, 2009
Workers’ Compensation Appeal :
Board (Sharon Tube Company), :
Respondent :



BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge
HONORABLE JAMES R. KELLEY, Senior Judge
HONORABLE KEITH B. QUIGLEY, Senior Judge


OPINION NOT REPORTED


MEMORANDUM OPINION BY
PRESIDENT JUDGE LEADBETTER FILED: September 23, 2009

Claimant, Daniel T. Buzard, petitions for review of the April 10, 2009
order of the Workers’ Compensation Appeal Board (Board) that affirmed the
decision of the Workers’ Compensation Judge (WCJ) to deny a petition seeking
the imposition of a penalty upon Employer, Sharon Tube Company, for allegedly
failing to pay reasonable and necessary medical expenses incurred by Claimant in
the treatment of his work injury. The sole issue before us is whether an employer
is responsible for paying bills for prescribed massage therapy treatment rendered
by an individual who is not a licensed health care provider under the Workers’
Compensation Act (Act).1

1
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2708.
2
As an initial matter, we note this Court’s decision in Boleratz v.
Workers’ Compensation Appeal Board (Airgas, Inc.), 932 A.2d 1014 (Pa. Cmwlth.
2007), which the WCJ found to be binding. In that case, we held that “the services
of a massage therapist, who is not licensed or otherwise authorized by the
Commonwealth to provide health care services, are not reimbursable under the
Act, even if the services are prescribed by a health care provider.” Id. at 1019. In
addition, we note the Act’s definition of “health care provider,” which is central to
resolving the issue in the present case:

“HEALTH CARE PROVIDER” means any
person, corporation, facility or institution licensed or
otherwise authorized by the Commonwealth to provide
health care services, including, but not limited to, any
physician, coordinated care organization, hospital, health
care facility, dentist, nurse, optometrist, podiatrist,
physical therapist, psychologist, chiropractor or
pharmacist and an officer, employe or agent of such
person acting in the course and scope of employment or
agency related to health care services.
Section 109 of the Act, added by Section 3 of the Act of July 2, 1993, P.L. 190, 77
P.S. § 29 (emphasis added). For the reasons that follow, we affirm.
The facts as found by the WCJ are as follows. In November 1995,
Claimant sustained a work-related separation of the right AC joint in his shoulder.
In February 2007, the WCJ granted Claimant’s September 2006 utilization review
petition, concluding that the manipulation, massage and medication treatment
rendered by James P. Dambrogio, D.O., constituted reasonable and necessary
medical treatment. In May 2007, Claimant filed a penalty petition therein alleging
that Employer failed to pay reasonable and necessary medical expenses in
3
compliance with the WCJ’s February 2007 decision and order.2 The expenses at
issue were from Michael Hritz, a massage therapist licensed in the state of Ohio
who provided the manual therapy prescribed by Dr. Dambrogio.
With regard to Mr. Hritz, the WCJ noted that although massage
therapists are licensed in the state of Ohio, they are not licensed or recognized as
authorized health care providers in Pennsylvania. Additionally, in response to this
Court’s comment in Boleratz that the outcome might have been different had the
claimant been able to prove that massage therapy services were provided under the
supervision of a practitioner, the WCJ found that although Mr. Hritz occasionally
would consult with Dr. Dambrogio, the doctor did not exercise supervisory control
over the therapist. The WCJ determined that “[p]roviders consulting on a specific
case does not convert that relationship into a supervisor relationship.” Finding of
Fact No. 4. Accordingly, the WCJ denied the penalty petition, concluding that
Claimant failed to prove that Employer should be liable for Mr. Hritz’s bills
because the therapist was not a recognized health care provider under the Act. The
Board affirmed and Claimant’s timely petition for review to this Court followed.
Claimant posits several arguments in support of his position that
Employer should pay for the manual therapy provided by Mr. Hritz. Firstly,
Claimant maintains that his case is distinguishable from Boleratz because Mr.
Hritz is a licensed health care provider, albeit in Ohio. Claimant rejects the
Boleratz Court’s strict construction of the Act to the effect that a health care
provider must be licensed in the Commonwealth in order to be eligible for

2
Section 306(f.1)(1)(i) of the Act, in pertinent part, provides that “[t]he employer shall
provide payment in accordance with this section for reasonable surgical and medical services,
services rendered by physicians or other health care providers . . . as and when needed.” 77 P.S.
§ 531(1)(i).
4
payment, arguing that this interpretation unfairly 1) excludes out-of-state providers
who may be eligible for licensure in Pennsylvania but are not licensed here; and 2)
imposes a hardship on out-of-state claimants. Accordingly, noting the
humanitarian purpose of the Act and the edict to construe it liberally for fulfillment
of that purpose, Hannaberry HVAC v. Workers’ Compensation Appeal Board
(Snyder), 575 Pa. 66, 834 A.2d 524 (2003), Claimant maintains that Mr. Hritz’s
Ohio licensure should be deemed sufficient in order to be considered a licensed
health care provider under the Act.3
In response, Employer points out that, not only is Mr. Hritz not
licensed in Pennsylvania, but he is also not “otherwise authorized by the
Commonwealth to provide health care services.” Section 109 of the Act.
Rejecting Claimant’s arguments alluding to full faith and credit concerns,
Employer maintains that the Commonwealth actually makes many authorizations
for providers who are not licensed in Pennsylvania to provide services via

3
Claimant also notes the fact that in 2008, Governor Rendell signed into law the Massage
Therapy Law (Law), Act of October 9, 2008, P.L. 1438, 63 P.S. §§ 627.1-627.50. He maintains
that, even though most of the Law is not due to become effective until October 2010, it
evidences the legislature’s intent to include massage therapists as health care providers under the
Act and that accordingly, we should liberally construe the Act to include Mr. Hritz as a health
care provider. We decline to do so.
Although we noted in Boleratz that “[s]hould the Commonwealth begin authorizing state
licensure of massage therapists, the outcome in future cases, such as this one, may be different,”
we further stated that “[u]ntil such time, employers are not required to pay for such treatment.”
932 A.2d at 1019 (emphasis added) (footnote omitted). In addition, even though we of course do
not now decide the effect of the Law’s provisions on cases such as the present one, we are
compelled to note that, contrary to Claimant’s indication, Section 17 of the Law, also due to
become effective in October 2010, provides that “[l]icensure under this [Law] shall not be
construed as requiring new or additional third-party reimbursement or otherwise mandating
coverage under . . . the Workers’ Compensation Act.” 63 P.S. § 627.17. Notwithstanding
Section 17 of the Law, which we note as an aside, we are bound to interpret the Act as it now
provides and to rely upon our applicable and precedential case law.
5
reciprocity agreements. See, e.g., 49 Pa. Code § 40.16 (license by endorsement
procedures for physical therapists educated in another state or territory of the
United States).
We agree with Employer that the massage therapy bills of Mr. Hritz
are not compensable under the Act. In Boleratz, this Court made an unambiguous
statement as to the legislature’s intent in this regard under the Act:

Employers must pay for medical services and services
rendered by physicians and health care providers, and
pursuant to Section 109 of the Act, 77 P.S. § 29, an
individual must be licensed or authorized by the
Commonwealth to provide health care services in order
to qualify as a health care provider. This does not
demonstrate an intent to require employers to be liable
for treatment rendered by unlicensed individuals.
Boleratz, 932 A.2d at 1019 (emphasis added). The facts of the present case simply
do not present distinctions that would warrant a different result.
Next, Claimant argues that the WCJ erred in determining that Boleratz
was not distinguishable from the present case because he presented evidence that
Dr. Dambrogio supervised Mr. Hritz. In addition, Claimant points out that, not
only did he present evidence that the doctor prescribed the manual therapy, but
also evidence that the doctor came into the treatment room after every visit and
that the two health care providers discussed claimant’s progress and the necessity
for any changes in treatment. Claimant maintains that this evidence demonstrates
that, contrary to the WCJ’s fact-finding, there was more than an occasional consult
between the two professionals.
In response, Employer acknowledges that a licensed physician
prescribed the massage therapy at issue, but maintains that there was no evidence
that Dr. Dambrogio exercised supervisory control over Mr. Hritz or otherwise
6
guided the therapist during the provision of massage services. It highlights the
WCJ’s finding that Mr. Hritz’s “testimony establishes that he would occasionally
consult with Dr. Dambrogio but that Dr. Dambrogio did not exercise supervisory
control over Mr. Hritz.” Finding of Fact No. 4. It notes the WCJ’s determination
that merely because two providers consulted on a specific case does not mean that
there was a supervisory relationship. Employer points to the following testimony
of Mr. Hritz in support of the WCJ’s determination:

Q. . . . [H]ow many times do you meet with Dr.
Dambrogio for this patient in any given 6-month period
of time?

A. Well, usually after the treatment.
. . . .
Q. Does Dr. Dambrogio come into the treatment room?

A. Yes.

Q. And how long does he stay?

A. 5 minutes.

Q. On each treatment visit?

A. Yes. May I? He usually comes in and says, how are
you doing, how are you feeling, you know, that kind of
thing.

Q. Greets Mr. Buzard?

A. Greets him, yes.

Q. And then what?

A. Then asks him – he may ask him how is treatment
today? Is there anything else, you know, that we need
done for you, you know, that type of thing.

7
Q. Does he come in before the session starts or after?

A. After.
….
Q. And does [Dr. Dambrogio] defer to you in terms of
the specific regime or kinds of treatment to be given to
Mr. Buzard generally?

A. Well, he writes the prescription for manual therapy
and then I do my thing, but no, he doesn’t dictate to me
on a specific basis what to do and how to do it, no.

Q. He leaves that up to you?

A. Yes, that is correct.
October 8, 2007 Deposition of Mr. Hritz, N.T. 23-24, 29; R.R. 47-48a, 53a.
Also in support of its position, Employer emphasizes the well-
established principle that a WCJ has complete authority when it comes to questions
of credibility, conflicting medical evidence and evidentiary weight. Sherrod v.
Workmen’s Compensation Appeal Board (Thoroughgood, Inc.), 666 A.2d 383 (Pa.
Cmwlth. 1995). It points out that this Court may not reweigh the evidence or
review the credibility of witnesses. Instead, our role is to determine whether, upon
consideration of the evidence as a whole, the findings have the requisite measure
of support in the record. Bethenergy Mines, Inc. v. Workmen’s Comp. Appeal Bd.
(Skirpan), 531 Pa. 287, 612 A.2d 434 (1992). Finally, and perhaps most pertinent
to the present case, it notes that this Court is bound to view the evidence in the
light most favorable to Employer, and draw all reasonable inferences that are
deducible from the record in support of the WCJ’s decision in Employer’s favor.
Cerasaro v. Workers’ Compensation Appeal Board (Pocono Mt. Med., Ltd.), 717
A.2d 1111 (Pa. Cmwlth. 1998).
8
This Court declines to reweigh the testimony and disturb the WCJ’s
interpretation of what does or does not constitute “supervision” under the facts of
this case. Although the evidence clearly indicates that the doctor closely
monitored the effect of his prescribed manual therapy treatment on Claimant, there
is adequate support in the record for the fact-finding that the doctor did not actually
supervise Mr. Hritz in the administration of that treatment. We conclude,
therefore, that the situation alluded to in Boleratz, that the outcome could be
different if there was a supervisory relationship between the practitioner and the
massage therapist, is not present in this case. Accordingly, we affirm.4



_____________________________________
BONNIE BRIGANCE LEADBETTER,
President Judge


4
Claimant additionally argues that the bills from services rendered by Mr. Hritz should be
compensable as non-medical services incidental to medical services pursuant to Section
306(f.1)(1)(ii) of the Act, 77 P.S. § 531(1)(ii). We agree with Employer that massage therapy
services are not included under this subsection and, therefore, not compensable. As Employer
notes, Section 306(f.1)(ii) provides that “the employer shall provide payment for medicines and
supplies, hospital treatment, services and supplies and orthopedic appliances, and prostheses in
accordance with this section.”
IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Daniel T. Buzard, :
Petitioner :
:
v. : No. 788 C.D. 2009
:
Workers’ Compensation Appeal :
Board (Sharon Tube Company), :
Respondent :

O R D E R

AND NOW, this 23rd day of September, 2009, the order of the
Workers’ Compensation Appeal Board in the above captioned matter is hereby
AFFIRMED.


_____________________________________
BONNIE BRIGANCE LEADBETTER,
President Judge

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