A similar loss for a PA massage therapists re: a worker's comp. case.

IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Anthony Hillardries, :
Petitioner :
:
v. : No. 865 C.D. 2009
: Submitted: August 14, 2009
Workers’ Compensation Appeal :
Board (Orefield Cold Storage), :
Respondent :


BEFORE: HONORABLE DAN PELLEGRINI, Judge
HONORABLE MARY HANNAH LEAVITT, Judge
HONORABLE JIM FLAHERTY, Senior Judge

OPINION NOT REPORTED


MEMORANDUM OPINION
BY JUDGE PELLEGRINI FILED: September 11, 2009


Anthony Hillardries (Claimant) appeals the April 8, 2009 order of the
Workers’ Compensation Appeal Board (Board) affirming the decision of the
Workers’ Compensation Judge (WCJ) holding that Orefield Cold Storage
(Employer) was not responsible for payment for Claimant’s massage therapy
because such services were not provided by a licensed health care provider.
Finding no error in the Board’s decision, we affirm.

In October 2006, while working for Employer in the shipping and
receiving department, Claimant’s left foot was crushed and his first and fifth
metatarsals were fractured when his foot became trapped between a pallet and the
forklift he was operating. Claimant began treatment with Michael Busch, M.D.
(Dr. Busch), an orthopedic surgeon, who prescribed physical therapy as well as
2
massage therapy due to Claimant’s injury. Claimant received massage therapy
approximately three times per week from Apryl Prather (Massage Therapist
Prather). On October 29, 2007, Claimant filed a Petition to Review Medical
Treatment alleging that Employer unilaterally stopped paying for massage therapy
services and requesting that such services be reimbursed.

Before the WCJ, Claimant testified that after being on crutches for
approximately five months, Dr. Busch prescribed massage therapy and referred
Claimant to Massage Therapist Prather. Claimant testified that the massage
therapy sessions reduced the pain and discomfort in his feet and legs and aided in
his sleeping. Dr. Busch testified that he prescribed massage therapy due to
Claimant’s complaint of increased pain and served to loosen the tissue on the
bottom of Claimant’s foot and address his plantar fasciitis, which Dr. Busch
testified was part of a crush injury diagnosis. Dr. Busch testified that the massage
therapy was a reasonable treatment for Claimant’s foot injury and helped Claimant
with his pain.1

Massage Therapist Prather testified that she attended and received a
certificate of completion from the Pennsylvania Institute of Massage Therapy. Her
main area of practice was medical massage and she received most of her referrals,
including Claimant, from practicing physicians. She also testified that she did not
personally have any medical training and Pennsylvania does not license massage

1
Employer presented the testimony of Stanley Askin, M.D. (Dr. Askin), a Board certified
orthopedic surgeon who testified that Claimant was capable of engaging in employment without
restrictions. However, Dr. Askin did not address the issue of the efficacy of the massage
therapy.
3
therapists but the massage therapy school Prather attended was licensed and
regulated by the Commonwealth.

The WCJ found Claimant credible as to his complaints of discomfort
and his physical capabilities. She also found Dr. Busch’s testimony credible as to
the opinion that Claimant had not fully recovered from his work-related foot injury
or the plantar fasciitis, and that Claimant benefitted from the prescribed massage
therapy. Relying on Boleratz v. Workers Compensation Appeal Board (Airgas,
Inc.), 932 A.2d 1014 (Pa. Cmwlth. 2007), the WCJ found that Massage Therapist
Prather’s treatments were not reimbursable because she was not a licensed health
care provider. Boleratz held that even though a claimant’s primary care physician
prescribed massage therapy sessions to address his work-related injury, because
massage therapists were not duly licensed medical practitioners, their treatment
expenses were not reimbursable under Section 306(f.1)(1)(i) of the Workers’
Compensation Act (Act).2 Claimant then appealed the WCJ’s decision to the
Board, which affirmed, and this appeal followed.3

While recognizing Boleratz’s holding that massage therapists were not
“licensed” health care providers, Claimant argues that decision did not address that

2
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §531(1)(i). Section 306(f.1)(1)(i) of
the Act provides, in pertinent part, “The employer shall provide payment in accordance with this
section for reasonable surgical and medical services, services rendered by physicians or other
health care providers.”

3
Our scope of review of an order of the Board is limited to determining whether the
necessary findings of fact are supported by substantial evidence, whether constitutional rights
have been violated or whether an error of law has been committed. Visteon Systems v. Workers’
Compensation Appeal Board (Steglik), 938 A.2d 547 (Pa. Cmwlth. 2007).

4
the definition of “health care provider” in Section 109 of the Act also includes any
person “otherwise authorized by the Commonwealth to provide health care
services.” 77 P.S. §29.4 (Emphasis Added.) Claimant argues that Massage
Therapist Prather is “otherwise authorized” to provide health care services because
she holds a certificate in massage therapy from a school that is licensed by the
Commonwealth to teach healthcare in the form of medical massage.

However, attending a school that is licensed by the Commonwealth
does not mean that a graduate is “otherwise authorized” as a “health care provider”
within the meaning of Section 109 of the Act. An example of what makes a person
“otherwise authorized” to provide health care services is if the General Assembly
designated graduates of “massage therapy” as “health care providers” without the
need to be separately licensed. Absent such a designation in a separate legislation,
“[i]n order to be reimbursable under Section 306(f.1)(1)(i) of the Act, ‘medical
services’ must be rendered by a duly licensed medical practitioner, even if there is
no licensing program for that medical specialty.” Taylor v. Workers’
Compensation Appeal Board (Bethlehem Area School District), 898 A.2d 51 (Pa.

4 Section 109 of the Act defines “health care provider” as:

[A]ny 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, employee or agent of
such person acting in the course and scope of employment or
agency related to health care services.
5
Cmwlth. 2006). Because massage therapist Prather was not licensed by the
Commonwealth, her services are not reimbursable under the Act.5

Accordingly, the order of the Board is affirmed.



DAN PELLEGRINI, Judge

5
Under the Massage Therapy Law, Act of October 9, 2008, P.L. 1438, 63 P.S. §§627.1-
627.50, massage therapists will be licensed in the Commonwealth by the State Board of Massage
Therapy beginning in October 2010. Section 17 of the Massage Therapy Law states, “Licensure
under this act shall not be construed as requiring new or additional third-party reimbursement or
otherwise mandating coverage under . . . the act of June 2, 1915 (P.L. 736, No. 338), known as
the Workers’ Compensation Act.” Because massage therapists will not be licensed in the
Commonwealth until 2010, the impact of that law is not before us today.
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Anthony Hillardries, :
Petitioner :
:
v. :
:
Workers’ Compensation Appeal :
Board (Orefield Cold Storage), :
Respondent : No. 865 C.D. 2009



O R D E R


AND NOW, this 11th day of September, 2009, the April 8, 2009 order
of the Workers’ Compensation Appeal Board at No. A08-1390, is affirmed.


____________________________
DAN PELLEGRINI, Judge