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Schriver v. Workers' Compensation Appeal Board (Commonwealth of Pennsylvania, Department of Transportation)

Commonwealth Court of Pennsylvania

December 28, 2017

Leslie Schriver, Petitioner
v.
Workers' Compensation Appeal Board (Commonwealth of Pennsylvania, Department of Transportation), Respondent

          Argued December 7, 2017

          BEFORE HONORABLE ROBERT SIMPSON, Judge, HONORABLE ANNE E. COVEY, Judge, HONORABLE DAN PELLEGRINI, Senior Judge

          OPINION

          ANNE E. COVEY, JUDGE

         Leslie 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.[1] After review, we reverse.

         On May 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. Fiss.[2]

         Claimant's 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.[3] Despite having submitted the massage therapy receipts to Employer's counsel for reimbursement, Employer has not paid Claimant.

         On July 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.[4] Claimant appealed to this Court.[5]

         Claimant 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), [6] as 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. Cmwlth. 1993).

         Section 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 provider" as

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).[7]

         Based 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 specifically ruled

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.

         In 2008, the General Assembly enacted the Massage Therapy Law, [8]which became effective on October 12, 2010.[9] 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."[10] 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 "[l]icensure under [the Massage ...


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