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.
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 2
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). 3
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. 4
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 5
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. 6
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 wellestablished 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). 7
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. 8
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