The opinion
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Leslie Schriver, :
Petitioner :
v. :
:
Workers’ Compensation Appeal :
Board (Commonwealth of :
Pennsylvania, Department :
of Transportation), : No. 289 C.D. 2017
Respondent : Argued: December 7, 2017
BEFORE: HONORABLE ROBERT SIMPSON, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE DAN PELLEGRINI, Senior Judge
OPINION BY
JUDGE COVEY FILED: December 28, 2017
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
1
Claimant’s Statement of Questions Involved includes two questions: (1) whether the Board
erred by reversing the WCJ’s decision that Claimant’s massage therapy sessions were reimbursable;
and, (2) whether the Board misapplied this Court’s precedent relating to employer liability for
massage therapy payments. See Claimant Br. at 2. Because the two issues are subsumed in an
analysis of the first, we have combined the issues accordingly.
(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
2
Dr. Fiss’ full name is not stated in the record.
3
Claimant seeks $870.00 for the following massage therapy treatments: 1/28/15 $60.00,
2/18/15 $60.00, 3/10/15 $30.00 (denoted “birthday”), 3/31/15 $60.00, 4/21/15 $60.00, 5/13/15
$60.00, 6/03/15 $60.00, 6/25/15 $60.00, 7/16/15 $60.00, 8/06/15 $60.00, 8/27/15 $60.00, 9/15/15
$60.00, 10/06/15 $60.00, 10/29/15 $60.00, 11/19/15 $60.00.
4
Employer did not challenge the portion of the WCJ’s order requiring Employer to
reimburse Claimant for his walker, so the Board did not reverse that ruling.
5
“On review[,] this Court must determine whether constitutional rights were violated, errors
of law were committed, or necessary findings of fact were supported by substantial competent
evidence.” Stepp v. Workers’ Comp. Appeal Bd. (FairPoint Commc’ns, Inc.), 99 A.3d 598, 601 n.6
2
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
(Pa. Cmwlth. 2014). “Substantial evidence has been defined as such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.” Id.
6
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2708.
7
Added by Section 3 of the Act of July 2, 1993, P.L. 190.
3
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
8
Act of October 9, 2008, P.L. 1438, as amended, 63 P.S. §§ 627.1-627.50.
9
Although the Massage Therapy Law was enacted before Moran was decided, the
treatments at issue were provided before the Massage Therapy Law was in effect. The Moran Court
clarified that massage therapy licensing began on January 1, 2011. Id.
10
Section 2 of the Massage Therapy Law defines “massage therapy” as:
4
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 Therapy Law] shall not be construed as
requiring new or additional third-party reimbursement or otherwise mandating
coverage under . . . the [Act].” 63 P.S. § 627.17 (emphasis added).
Although Section 17 of the Massage Therapy Law makes clear that
Hurd’s licensure does not automatically render Claimant’s massage therapy
treatments reimbursable under the Act, it does not preclude Employer’s liability
therefor. Moreover, Section 306(f.1)(1)(i) of the Act requires Employer to pay for
reasonable services rendered by health care providers, which Section 109 of the Act
defines to include chiropractors and their “employe[es] or agent[s][11] . . . acting in
The application of a system of structured touch, pressure, movement,
holding and treatment of the soft tissue manifestations of the human
body in which the primary intent is to enhance the health and
well-being of the client without limitation, except as provided in this
[Massage Therapy Act]. The term includes the external application of
water, heat, cold, lubricants or other topical preparations, lymphatic
techniques, myofascial release techniques and the use of electro-
mechanical devices which mimic or enhance the action of the
massage techniques. The term does not include the diagnosis or
treatment of impairment, illness, disease or disability, a medical
procedure, a chiropractic manipulation--adjustment, physical therapy
mobilization--manual therapy, therapeutic exercise, electrical
stimulation, ultrasound or prescription of medicines for which a
license to practice medicine, chiropractic, physical therapy,
occupational therapy, podiatry or other practice of the healing arts is
required.
63 P.S. § 627.2 (emphasis added).
11
“An employer-employee relationship exists where the alleged employer possesses the
right to select the employee; the right and power to discharge the employee; the power to direct
manner of performance; and the power to control the employee.” 3D Trucking Co., Inc. v. Workers’
Comp. Appeal Bd. (Fine & Anthony Holdings Int’l), 921 A.2d 1281, 1288 (Pa. Cmwlth. 2007).
“There are three basic elements for a principal-agent relationship: (1) manifestation by a principal
that an agent shall act for the principal; (2) the agent’s acceptance of the undertaking; and (3) the
5
the course and scope of employment or agency related to health care services.”
77 P.S. § 29 (emphasis added). Based upon established precedent, and the Act’s clear
language, if Hurd was providing massage therapy services for Claimant as Dr. Fiss’
employee or agent, then Employer is liable for those expenses.
At the October 5, 2015 WCJ hearing, Claimant testified that Dr. Fiss
recommended he undergo massage therapy provided by Hurd, who conducted the
massage therapy sessions at Dr. Fiss’ Chambersburg Chiropractic office, although not
in Dr. Fiss’ presence. See R.R. at 25a-26a, 29a-30a. Claimant pronounced that the
treatments have “certainly” helped. R.R. at 28a. When asked if Dr. Fiss and Hurd
communicated about his massage therapy sessions, Claimant responded: “I really
don’t know but I think they do.” R.R. at 26a. Claimant’s massage therapy receipts
were admitted into evidence. At Employer’s request, the WCJ admitted into evidence
Claimant’s Review Petition, Employer’s answer, and a print-out from the
Chambersburg Chiropractic’s website containing Hurd’s professional profile.
In granting the Petitions, the WCJ stated:
[T]his Judge cannot, in light of the available evidence,
accept [Employer’s] argument that [Hurd’s] therapy is not
supervised by Dr. Fiss. As noted, [Employer] does
acknowledge that [Hurd] is a licensed massage therapist,
and presented evidence that clearly indicates she performs
massage therapy at Dr. Fiss’[] practice: Chambersburg
Chiropractic. While Claimant could not state with certainty
that [Hurd] and Dr. Fiss communicate about his therapy,
given the available evidence it is difficult to conceive that
they render treatment to the same patient - [] Claimant -
under the same provider entity - Chambersburg
Chiropractic - without communication. Accordingly . . . , . .
. Claimant met his burden for his Petitions.
WCJ Dec. at 7.
parties’ understanding that the principal is to be in control of the undertaking.” Wilson Area Sch.
Dist. v. Skepton, 860 A.2d 625, 630 (Pa. Cmwlth. 2004), aff’d, 895 A.2d 1250 (Pa. 2006).
6
The law is well-settled that “[t]he WCJ has exclusive authority to act as
fact finder, determine credibility of witnesses, and weigh the evidence. The WCJ’s
findings will not be disturbed if they are supported by substantial, competent
evidence.” Stepp v. Workers’ Comp. Appeal Bd. (FairPoint Commc'ns, Inc.), 99
A.3d 598, 601 n.6 (Pa. Cmwlth. 2014).
‘Moreover, we are to draw all reasonable inferences which
are deducible from the evidence in support of the
factfinder’s decision in favor of that prevailing party.’ It
does not matter if there is evidence in the record supporting
findings contrary to those made by the WCJ; the pertinent
inquiry is whether the evidence supports the WCJ’s
findings.
3D Trucking Co., Inc., v. Workers’ Comp. Appeal Bd. (Fine & Anthony Holdings
Int’l), 921 A.2d 1281, 1288 (Pa. Cmwlth. 2007) (quoting Waldameer Park, Inc. v.
Workers’ Comp. Appeal Bd. (Morrison), 819 A.2d 164, 168 (Pa. Cmwlth. 2003))
(citation omitted).
In reversing the WCJ’s decision, the Board reasoned:
Although [Hurd] is a licensed massage therapist, licensure
under the Massage Therapy Law does not automatically
render a massage therapist a health care provider under the
Act as evidenced by the plain language of [Section 17 of the
Massage Therapy Law,] 63 P.S. § 627.17, which provides
that licensure as a massage therapist does not mandate
coverage under the Act. Additionally, the Massage Therapy
Law’s definition of massage therapy draws a distinction
between massage therapy, which is utilized to ‘enhance
health and wellbeing’ and medical treatment, which is
designed to diagnose and treat impairment, illness, disease
and disability. Health care providers, unlike massage
therapists, go beyond the promotion of health and well-
being to treat and diagnose injured workers. Considering
these differences in the definitions of massage therapist and
health care provider, as well as the General Assembly’s
specific indication that employers are not mandated to cover
massage therapy under the Act, we must conclude that the
WCJ erred in determining that [Employer] was liable for
7
the payment of the massage therapy Claimant received from
[Hurd]. We therefore reverse this aspect of the WCJ’s
Decision. Because [Employer] is not liable for payment of
the massage therapy provided by [Hurd], we also reverse
the WCJ’s award of penalties.
Board Op. at 5. The Board’s position is untenable.
We acknowledge that, under Section 109 of the Act, a health care
provider and/or his employee or agent must be rendering “health care services.” 77
P.S. § 29. Notably, the Act, Employer nor the Board specifically define health care
services. Rather, the Board declares, without supporting legal authority, that since
Employer is only liable under the Act to pay for “medical treatment designed to
diagnose and treat impairment, illness, disease and disability” and, since massage
therapy is merely intended to “enhance health and well-being,” it is not compensable
under the Act. Board Op. at 5.
However, Section 109 and Section 306(f.1)(1)(i) of the Act do not
expressly limit health care providers to medical treatment, to the exclusion of
methodologies intended to enhance an injured worker’s health and well-being.
Moreover, because there has been no challenge that Hurd’s massage therapy was
prescribed for any reason other than to afford Claimant relief from pain caused by his
accepted work injury, the record supports that the therapy would not have been
undertaken but for Claimant’s work injury.
Further, ‘[o]ur basic premise in [WC] matters is that the
[Act] is remedial in nature and intended to benefit the
worker, and, therefore, the Act must be liberally construed
to effectuate its humanitarian objectives.’ Hannaberry
[HVAC v. Workers’ Comp. Appeal Bd.], 834 A.2d 524[, 528
(Pa. 2003)] (quoting Peterson v. [Workmen’s Comp. appeal
Bd.] (PRN Nursing Agency), . . . 597 A.2d 1116, 1120 ([Pa.]
1991)).
Accordingly, ‘borderline interpretations’ of the Act ‘are to
be construed in the injured party’s favor.’ Hannaberry, 834
A.2d at 528 (quoting Harper & Collins v. [Workmen’s
8
Comp. Appeal Bd.] (Brown), 672 A.2d 1319, 1321 ([Pa.]
1996)).
Kelly v. Workers’ Comp. Appeal Bd. (U.S. Airways Grp., Inc.), 992 A.2d 845, 852
(Pa. 2010). Notwithstanding, based on this Court’s precedent in Moran, Boleratz and
Foyle and the Act’s definition of health care provider, regardless of whether or not
massage therapists are licensed, if they are supervised or have an employment or
agency relationship with a licensed health care provider, an employer is liable for
expenses related to the health care services rendered.
Here, the WCJ made a finding based on the print-out from the
Chambersburg Chiropractic’s website that Hurd’s professional profile appeared on
the website, and viewers were offered “an opportunity to ‘[l]earn more about what
[Hurd] offers at Chambersburg Chiropractic[.]’” WCJ Dec. at 4-5 (Finding of Fact
6); see also R.R. at 23a. In addition, we observe that Hurd’s profile was listed by
Chambersburg Chiropractic under the heading “Our Massage Therapist,” massage
therapy was listed among Chambersburg Chiropractic’s services on Chambersburg
Chiropractic forms, and Claimant’s massage therapy receipts were printed on
Chambersburg Chiropractic forms. See R.R. at 23a; see also R.R. at 41a, 45a, 47a,
49a, 51a, 53a, 55a, 57a, 100a, 102a, 104a, 106a. The WCJ found: “Given Claimant’s
credible and accepted testimony regarding the massage therapy, this [WCJ] finds the
documentation offered by Claimant and the documentation offered by [Employer]
supportive of Claimant’s testimony that he receives the same from a licensed massage
therapist working under the direction and control of [Dr. Fiss].” WCJ Dec. at 5
(Finding of Fact 6.b [sic]12). Employer offered no evidence to the contrary.
Drawing all reasonable inferences in Claimant’s favor, as we must, we
hold that since substantial evidence supports the WCJ’s findings that Claimant’s
12
The WCJ’s decision lists a Finding of Fact 6 and also numbers the next Finding of Fact 6
(with subparts a and b). It is apparent that the second Finding of Fact 6 should have been numbered
Finding of Fact 7 (with subparts a and b).
9
massage therapy was provided by Hurd under Dr. Fiss’ direction in connection with
Claimant’s overall work injury treatment plan, Employer is obligated under Section
306(f.1)(1)(i) of the Act to reimburse Claimant for those sessions.
Based on the foregoing, the Board’s order is reversed.
___________________________
ANNE E. COVEY, Judge
10
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Leslie Schriver, :
Petitioner :
v. :
:
Workers’ Compensation Appeal :
Board (Commonwealth of :
Pennsylvania, Department :
of Transportation), : No. 289 C.D. 2017
Respondent :
ORDER
AND NOW, this 28th day of December, 2017, the Workers’
Compensation Appeal Board’s February 15, 2017 order is reversed.
___________________________
ANNE E. COVEY, Judge