December 7, 2017
HONORABLE ROBERT SIMPSON, Judge, HONORABLE ANNE E. COVEY,
Judge, HONORABLE DAN PELLEGRINI, Senior Judge
E. COVEY, JUDGE
Schriver (Claimant) petitions this Court for review of the
Workers' Compensation (WC) Appeal Board's (Board)
February 15, 2017 order reversing the Workers'
Compensation Judge's (WCJ) decision granting
Claimant's Petition to Review Medical Treatment and/or
Billing (Review Petition) and Claimant's Penalty Petition
(collectively, Petitions). The issue before this Court is
whether the Board erred by concluding that Claimant's
massage therapy expenses were not reimbursable. After review, we
1, 1978, while working for the Commonwealth of Pennsylvania,
Department of Transportation (Employer), Claimant sustained a
work-related injury to his low back, for which Employer
issued a Notice of Compensation Payable (NCP). Claimant
continues to receive treatment from his family physician and
at Chambersburg Chiropractic with chiropractor Dr.
family doctor prescribed a walker for Claimant, which he
purchased from Overstock.com for $118.16, and then sought
reimbursement from Employer. Dr. Fiss referred Claimant to a
licensed massage therapist in his office, Danielle Hurd
(Hurd), for therapy on his lower back and hips. Claimant had
massage therapy treatments approximately every three weeks
from January 28, 2015, for which he paid $60.00 per hour
out-of-pocket. Despite having submitted the massage
therapy receipts to Employer's counsel for reimbursement,
Employer has not paid Claimant.
7, 2015, Claimant filed the Review Petition because
"[Employer] has failed to reimburse Claimant for
out-of-pocket massage therapy expenses." Reproduced
Record (R.R.) at 120a. Claimant simultaneously filed the
Penalty Petition seeking "[i]mmediate reimbursement,
plus 50% penalties, interest, costs, and attorney
fee[s.]" R.R. at 120a. Employer denied Claimant's
claims. WCJ hearings were held July 20 and October 5, 2015.
On February 11, 2016, the WCJ granted the Petitions, ordered
Employer to reimburse Claimant for his walker and the massage
therapy sessions, and awarded Claimant penalties, costs and
attorney's fees. Employer appealed to the Board which, on
February 15, 2017, reversed the WCJ's
decision. Claimant appealed to this
argues the Board erred by concluding that Employer was not
responsible for Claimant's massage therapy expenses
despite that they were causally related to the accepted work
injury and were provided by or under the supervision of a
licensed health care provider pursuant to the WC Act (Act),
this Court required in Moran v. Workers' Compensation
Appeal Board (McCarthy Flowers), 78 A.3d 1245 (Pa.
Cmwlth. 2013), Boleratz v. Workers' Compensation
Appeal Board (Airgas, Inc.), 932 A.2d 1014 (Pa. Cmwlth.
2007), and Foyle v. Workmen's Compensation Appeal
Board (Liquid Carbonic I/M Corp.), 635 A.2d 687 (Pa.
306(f.1)(1)(i) of the Act mandates, in relevant part, that
"[t]he employer shall provide payment . . . for
reasonable . . . services rendered by physicians or other
health care providers, . . . as and when
needed." 77 P.S. § 531(1)(i) (emphasis added).
Section 109 of the Act defines "health care
any person . . . 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.
77 P.S. § 29 (emphasis added).
on the foregoing, in Taylor v. Workers' Compensation
Appeal Board (Bethlehem Area School District), 898 A.2d
51 (Pa. Cmwlth. 2006), this Court held, despite that the
claimant's physician prescribed the services, the
employer was not liable to reimburse the claimant for
vocational expert's services where the expert was not
professionally licensed by the Commonwealth. Relying on
Taylor, this Court in Boleratz more
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.
Because [the massage
therapist] is not licensed and was not
supervised, [the e]mployer
is not required to pay for her treatment.
Id. at 1019. This holding is in accordance with this
Court's long-standing interpretation that "[i]n
order . . . to be compensable under [Section] 306(f)(1) of
the Act, [the health care service] must be performed by a
duly licensed practitioner . . . or under the supervision of
such a person." Foyle, 635 A.2d at 691. In
Moran, the employer was ordered to reimburse the
claimant for massage therapy performed by a licensed
practical nurse (LPN) at the recommendation and under the
direction of a physician, since an LPN is a health care
provider under the Act, the LPN's training included
massage therapy, and the employer "failed to establish
that massage therapy did not come under the duties of an
LPN." Id. at 1250.
2008, the General Assembly enacted the Massage Therapy Law,
which became effective on October 12,
2010. Thereunder, the State Board of Massage
Therapy was created and authorized to establish
qualifications for and approve massage therapists for
Commonwealth licensing. See Sections 3 and 4 of the
Massage Therapy Law, 63 P.S. §§ 627.3, 627.4.
Section 2 of the Massage Therapy Law defines "massage
therapist" as "[a]n individual licensed by the
State Board of Massage Therapy to practice massage
therapy." 63 P.S. § 627.2. It is undisputed
in the instant case that Hurd held a valid,
Commonwealth-issued massage therapy license when she treated
Claimant. Notwithstanding, the General Assembly specifically
declared in Section 17 of the Massage Therapy Law, in
relevant part, that
[the Massage ...