Thursday, November 12, 2009

Another Progressive Insurance Payment Rejection......

Progressive Insurance's Reason For Never Paying PA Massage Therapists.

J. A10040/08


v. :

Appeal from the Order entered September 11, 2007
In the Court of Common Pleas of PHILADELPHIA County
Civil at No(s): March Term, 2007 - No. 000035


Appellant, Richard Keiper, appeals from the order entered on
September 11, 2007, by the Honorable Gary DiVito, Court of Common Pleas
of Philadelphia County, which sustained preliminary objections in the nature
of a demurrer of Appellee, Progressive Casualty Insurance Company
(hereinafter “Progressive”). After careful review, we affirm.
Keiper is an unlicensed massage therapist who performs therapeutic
massages at his own place of business, without direct onsite supervision of a
doctor or other prescribing medical practitioner. In the fall of 2005, a
patient was referred to Keiper by a medical practitioner for therapeutic
massage sessions to treat injuries she sustained in a motor vehicle accident
J. A10040/08

a few months prior. Keiper was to perform manual therapy techniques to
alleviate her pain in the right neck and shoulder.
After performing four of the prescribed therapeutic massage sessions,
pursuant to the Motor Vehicle Financial Responsibility Law (“MVFRL”),1
Keiper submitted his bill to Progressive, the patient’s automobile insurer. He
sought payment for four manual therapy sessions (at $30 per session), as
well for a physical therapy evaluation ($100). Progressive denied payment
on the grounds that under the MVFRL and the Physical Therapy Practice Act
(“PT Act”),2 Keiper, an unlicensed massage therapist, is not entitled to
payment for therapeutic massages to treat injuries sustained by an insured
following a motor vehicle accident
Subsequently, on March 5, 2007, Keiper brought an action against
Progressive on behalf of a class of unlicensed massage therapists, seeking
relief from Progressive’s policy of denying payments to unlicensed massage
therapists. On July 16, 2007, Progressive filed preliminary objections in the
nature of a demurrer to Keiper’s class action complaint, arguing that under
the MVFRL and the PT Act, unlicensed massage therapists are not entitled to
payment for therapeutic treatments under any circumstances.

75 PA.CONS.STAT.ANN. § 1701, et seq.

63 PA.STAT. § 1301, et seq.
J. A10040/08

In an order dated September 5, 2007, the trial court sustained
Progressive’s preliminary objections and dismissed Keiper’s complaint with
prejudice. The trial court concluded that under Pennsylvania law, if a
massage is being performed as part of therapy to recover from injuries
sustained in a motor vehicle accident, the therapist must be licensed under
the PT Act. Thus, it held that because Keiper was unlawfully performing
therapeutic massages on his patients without a license, he may not receive
compensation and is not entitled to relief from the court. See Trial Court
Opinion, 9/5/07, at 2-3. This timely appeal followed.
On appeal, Keiper presents the following issue for our review:
Was it an error, in an action for recovery by massage
therapists, pursuant to 75 Pa. C.S.A. 1701 et seq.
(MVFRL), from an automobile insurance carrier, for the
trial judge to grant preliminary objections when
presented with the legal issue as to whether as a uniform
policy Progressive Casualty Insurance Co. (Progressive)
may reject payments submitted by massage therapists
solely because they are not a licensed medical provider.

Appellant’s Brief, at 3.
Keiper asserts that the trial court misconstrued the MVFRL and the PT
Act to preclude unlicensed massage therapists from receiving payment from
automobile insurance carriers under all circumstances; rather, the insurance
carrier should evaluate each bill on an individual case-by-case basis to
determine whether payment is warranted. See Appellant’s Brief, at 14-15.
Thus, he claims that the trial court erred in dismissing the complaint without
J. A10040/08

first considering whether the therapeutic massages performed on the patient
were necessary and supervised by a medical doctor. See id. We disagree
as a plain reading of the relevant statutes necessitates affirmance of the trial
court order.
Our standard of review where there is a challenge to the sustaining of
preliminary objections in the nature of a demurrer is well-settled: The
material facts set forth in the complaint and all inferences reasonably
deducible therefrom are admitted as true. See Toney v. Chester County
Hospital, --- A.2d ----, ----, 2008 WL 4867930, *3 (Pa. Super., filed
November 12, 2008) (citations omitted). The question presented by the
demurrer is whether, on the facts averred, the law says with certainty that
no recovery is possible. See id., ----, 2008 WL 4867930, *3. Where a
doubt exists as to whether a demurrer should be sustained, this doubt
should be resolved in favor of overruling it. See id., ----, 2008 WL
2867930, *3.
We find Keiper’s argument erroneous following a plain-reading of the
above statutory and regulatory provisions. When the words of a statute are
clear and free from ambiguity, the letter of the statute is not to be
disregarded. 1 PA.CONS.STAT.ANN. 1921(b). There is nothing in the
provisions suggesting that a massage therapist such as Keiper, who is
unlicensed under the PT Act, may perform therapeutic treatment of a specific
J. A10040/08

pathology simply because a medical practitioner referred the patient to him,
continued to treat the patient, and supposedly monitored Keiper’s treatment
of the patient.
The MVFRL provides, in pertinent part, that an automobile insurer
“shall make available for purchase first party benefits with respect to injury
arising out of the maintenance or use of a motor vehicle as follows: …
coverage to provide for reasonable and necessary medical treatment and
rehabilitative services, including but not limited to … licensed physical
therapy.” 18 PA.CONS.STAT.ANN. § 1712.
It is unlawful for any person to practice “physical therapy” in this
Commonwealth unless that person is licensed under the PT Act. See 63
PA.STAT. § 1304(a). The act defines “physical therapy” as “the evaluation
and treatment of any person by the utilization of the effective properties of
physical measures such as mechanical stimulation, heat, cold, light, air,
water, electricity, sound, massage, mobilization and the use of therapeutic
exercises and rehabilitative procedures…” 63 PA.STAT. § 1302 (emphasis
Regulations promulgated by the State Board of Physical Therapy
provide that unlicensed massage therapists may only perform non-
therapeutic treatment upon subjects who have no specific pathology upon
which the treatment is being performed, and those who perform therapeutic
J. A10040/08

treatment of a specific pathology are subject to fine and penalty. See 49
Pa. Code § 40.3 (Exceptions to requirement of license).3
Here, Keiper billed Progressive for therapeutic massage services
rendered according to Medicare fee scheduling code 97140.4 See Response
to Preliminary Objections, Exhibit E – American Medical Association Current
Procedural Terminology (2004), “Therapeutic Procedures”. Although there is
an exception to the licensing requirement, it only applies to non-therapeutic
treatments to persons who are not being treated for a specific pathology.
The exception clearly does not apply to Keiper – he acknowledges that he

Section 40.3 states the following:

The act continues past law in defining physical therapy and
governing its practice in this Commonwealth, and it is not meant
to limit or restrict those who are engaged in certain occupations
or jobs which do not require a license, such as, but not limited
to, physical education directors, health or recreation directors at
health clubs or spas, athletic trainers and masseurs. The duties
which may be properly undertaken in such occupation or job
include the nontherapeutic administration of baths, massage,
normal exercise, normal conditioning, and the like to normal
subjects, that is those persons who have no specific
pathology upon which said acts are being administered;
first aid subjects are excluded. If, under their duties, unlicensed
individuals perform acts, some of which are described in this
section, that are deemed to relate directly or indirectly to the
evaluation, treatment or therapeutic management of a specific
pathology in the subject, the person administering the acts shall
be subject to fine and penalty as provided by law.

Code 97140 permits payment for services including “manual
therapy techniques (e.g., mobilization/manipulation, manual
lymphatic drainage, manual traction), one or more regions, each
15 minutes.”
J. A10040/08

performed therapeutic massages to treat the patient for pain in her right
shoulder and neck following the automobile accident. Yet, he claims that he
was not violation of the PT Act because those services were prescribed by a
medical doctor who continued to treat the patient and monitor Keiper’s
treatment of the patient. See Appellant’s Brief, at 15.
We are further persuaded of our conclusion in light of the
Commonwealth Court’s analysis of a similar case addressing the issue of an
insurer’s responsibility to pay for physical therapy services performed by
unlicensed individuals. See Kleinberg v. Southeastern Pennsylvania
Transportation Authority, 765 A.2d 405 (Pa. Cmwlth. 2000). In
Kleinberg, the Commonwealth Court held that an unlicensed technician who
is supervised by a licensed physical therapist does not perform “licensed
physical therapy” within the meaning of a statute requiring medical benefits
coverage for licensed physical therapy. See id., at 408. It stated that the
plain language of the statute clearly forbids any person “to hold himself out
… in any manner whatsoever” as being able to practice physical therapy in
this Commonwealth unless licensed under the Act. Id. The court concluded
that an insurer is not responsible for paying for such services that are
delegated to unlicensed persons, regardless of whether those services are
supervised by the delegating physician or not. See id.
J. A10040/08

Accordingly, we conclude that Keiper may not lawfully perform
therapeutic massage services without a license, and therefore, he may not
seek protection under the law and be compensated for services provided
unlawfully. Progressive properly refused to pay Keiper and owes no duty to
pay him as a provider under the MVFRL. The demurrer was proper.
Order affirmed. Jurisdiction relinquished.

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