Submitted: September 6, 2013
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ANNE E. COVEY, Judge
BERNARD L. McGINLEY, Judge
Kevin Moran (Claimant) challenges the order of the Workers' Compensation Appeal Board (Board) which reversed the Workers' Compensation Judge's (WCJ) determination that the massage therapy Claimant received from Gail Kozlowski, LPN (Nurse Kozlowski) was reasonable and necessary.
Claimant sustained a work-related low back injury in the nature of an L4-L5 disc herniation on July 19, 1997. On June 14, 2002, Claimant and McCarthy Flowers (Employer) entered into a Compromise and Release Agreement in which Claimant settled his wage loss claim for a lump sum, but his reasonable and necessary related medical benefits continued.
On or about May 21, 2010, Employer requested utilization review with regard to the reasonableness and necessity of treatment rendered to the Claimant by Nurse Kozlowski including massage therapy from May 11, 2010, forward.
On or about July 28, 2010, Heather Krull, LPN (Nurse Krull) of Rehabilitation Planning, Inc. issued a utilization review determination. Nurse Krull reviewed medical records and a personal statement from Claimant. She also telephoned Nurse Kozlowski. In her review of the case, Nurse Krull determined:
In addressing the specific request of this utilization review, the issue of massage therapy specifically does not fall within the scope of a licensed practical nurse. Ms. Kozlowski's credentials do include a national certification in massage therapy; however, that particular aspect of her certification is not a license in massage therapy, not a license of review, and does not fall under the scope of practice of a licensed practical nurse. Therefore, any and all, to include, the treatment of massage therapy (understood as NMT, friction and myofascial release/compression, application of a topical pain reliever, China Gel) under the reviewable license of a licensed practical nurse (LPN) is not considered reasonable, 5-11-10, 4-20-10, 5-27-10 and ongoing as provided by Gail Kozlowski, LPN.
Utilization Review Determination, July 28, 2010, at 2-3; Reproduced Record (R.R.) at 4a-5a.
On or about August 4, 2000, Claimant petitioned for review of Nurse Krull's utilization review determination. Before the WCJ, the parties agreed that they would submit briefs on the legal issue of whether massage therapy was in the scope of practice of a licensed practical nurse.
Claimant submitted two reports from Nurse Kozlowski. Nurse Kozlowski stated that she treated Claimant with massage therapy for his low back pain and performed this service under the prescription, direction and recommendation of Michael D. Wolk, M.D. She also stated:
The therapeutic treatment that I perform is within my scope of practice, as during the course of my nursing training, I learned basic massage strokes. I furthered my education in massage therapy at Allied Medical and Technical Careers, Scranton, PA, receiving my certification after completing over 900 hours of training and going on to become a teaching assistant in their massage therapy program. I have also received my National Certification in massage therapy by passing a competitive examination. . . . I am also a member of the National Association of Nurse Massage Therapists.
Report from Gail Kozlowski, September 16, 2010, at 1; R.R. at 13a.
In her second report she stated that she had been accepted by the Pennsylvania Bureau of Workers' Compensation as a licensed health care provider. She attached an email dated April 16, 2004, from Eileen K. Wunsch (Wunsch), Chief of Health Care Services Review of the Bureau of Workers' Compensation, which stated that a licensed practical nurse who performed ...