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

Another Progressive Insurance Payment Rejection......

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

J. A10040/08



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

RICHARD KEIPER, INDIVIDUALLY AND : IN THE SUPERIOR COURT OF
ON BEHALF OF ALL OTHERS : PENNSYLVANIA
SIMILARY SITUATED :
:
v. :
:
PROGRESSIVE CASUALTY INSURANCE :
COMPANY :
:
APPEAL OF: RICHARD KEIPER : No. 2409 EDA 2007


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

BEFORE: FORD ELLIOTT, P.J., PANELLA and KELLY, JJ.

MEMORANDUM: FILED JANUARY 9, 2009
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



2
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.

1
75 PA.CONS.STAT.ANN. § 1701, et seq.

2
63 PA.STAT. § 1301, et seq.
J. A10040/08



3
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



4
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



5
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
added).
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



6
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

3
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.

4
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



7
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



8
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.

Today is this blogs first day.

Hello Dear Readers,
Today is the first day of my remarks, news, views and comments on PA massage insurance.

For those of you out there who are following the current state of affairs, this has been one crazy and often times unfair ride due to the manipulations of PA law by select insurance agencies.

I for one am extremely tired and disappointed by the entire state of affairs and have selected to share my awareness and knowledge with you dear reader, in the event that you too have had frustrating and discouragement alone the massage insurance billing path.

Join me, as I write my tales of woe and intrigue along the path of PA Massage Insurance billing.