There are those injured workers who seek to maintain activities of daily living through “passive modalities” such as massage therapy, ostensibly saving the insurance company the cost of much more expensive treatment.
More numerous are those insurance carriers who do not consider massage therapy to be “medical treatment” at all, and seek to avoid paying for such care — ironically at any costs. “Wouldn’t we all love to stay home from work and get a massage,” the cynical criticism goes.
Related: Non-opioid treatment alternatives
Defense bias notwithstanding, massage therapy can play an important role in maintaining a certain quality of life while one is coping with a work injury. In the early stages, it can even promote a cure by stretching tissues, breaking down adhesions and reducing swelling in joints, allowing for quicker healing.
Claims adjuster's role
The problem has always been that an injured worker’s ability to have massage therapy covered by a workers’ compensation carrier was dependent on the good will of the claims adjuster, as the laws in Pennsylvania have traditionally not recognized massage therapy as covered medical treatment, as such.
In the closing days of 2017, the Commonwealth Court provided a roadmap and, quite frankly, a gift to those injured workers who would choose massage therapy as their modality of choice in the case of Schriver v. Workers’ Compensation Appeal Board (Pennsylvania Department of Transportation), No. 289 C.D. 2017. The only issue in the case is whether the claimant’s massage therapy expenses were reimbursable.
The claimant injured his back in 1978, while working for the Commonwealth of Pennsylvania, Department of Transportation. Almost 40 years later, his main source of treatment was from his family physician and a chiropractor. Among other treatments, the chiropractor referred the claimant to a licensed massage therapist in his office for massage treatment once every three weeks to his lower back and hips. The cost of each session was only $60 and was paid out-of-pocket by the claimant, who later sought reimbursement.
Receiving no response to his request to have the massage therapy reimbursed, the claimant filed review and penalty petitions. Following two hearings, the workers’ compensation judge granted the petitions and directed the employer to reimburse the claimant for the massage therapy treatments. The employer appealed, and the Workers’ Compensation Appeal Board reversed the WCJ’s decision, prompting the claimant to seek Commonwealth Court review.
Massage treatment related to work injury
The claimant’s primary argument on appeal was that the bills in question were reimbursable since the treatment was undisputedly related to the accepted work injury and it was provided “by or under the supervision of” a licensed health care provider pursuant to Sections 306(f.1)(1)(i) and 109 of the act and subsequent case law defining those section. Section 306 mandates payment for medical services by a “health care provider” “when needed” and Section 109 defines a “health care provider” as a person “licensed or otherwise authorized by the commonwealth to provide health care services,” or by “an officer, employee or agent of such person acting in the course and scope of employment or agency related to health care services.”
The court analyzed the relevant cases relied upon by the claimant, starting with Taylor v. Workers’ Compensation Appeal Board (Bethlehem Area School District), 898 A.2d 51 (Pa. Commw. 2006), which held that even physician-prescribed vocational services were not subject to reimbursement since the vocational expert was not professionally licensed by the commonwealth.
More relevant to the subject at hand was Boleratz v. Workers’ Compensation Appeal Board (Airgas), 932 A.2d 1014 (Pa. Commw. 2007), which ruled that massage therapy provided by someone who was not licensed or otherwise authorized by the commonwealth to provide health care services, was not reimbursable under the Act, even with a prescription for massage therapy from a health care provider.
The salient factor in Boleratz was the fact that the massage therapist was neither licensed nor supervised by the doctor who write the prescription. Foyle v. Workers’ Compensation Appeal Board (Liquid Carbonic I/M), 635 A.2d 687 (Pa. Commw. 1993), upon which the other two cases derived their holdings, found that in order to be compensable under the act, “health care services” must be performed by a duly licensed practitioner or done “under the supervision of such a person.”
The Schriver court noted the first instance where massage therapy was payable with Moran v. Workers’ Compensation Appeal Board (McCarthy Flowers), 78 A.3d 1245 (Pa. Commw. 2013), which held that massage therapy could be covered under the act, since, in that case, it was performed by an LPN, who the Commonwealth Court declared a “health care provider” under the act. Parenthetically, the court suggested that the employer could have avoided liability for the treatment had it proven that massage therapy did not come under the duties of an LPN.
Provided by 'employee or agent' of licensed healthcare provider
In addition to allowing for massage therapy as performed by a licensed health care provider, the Schriver court also allows that massage therapy could be covered if the services are performed by an “employee or agent” of the licensed healthcare professional. This is significant since it is unreasonable to assume there are many LPNs who double as massage therapists. Moreover, it is unlikely that other licensed healthcare professionals would also be massage therapists.
While in 2008, the Pennsylvania legislature passed the Massage Therapy Law, providing a licensure for massage therapists, the law specifically states that a massage therapist license does not automatically render massage therapy treatments reimbursable under the Workers’ Compensation Act. Therefore, the statute itself did not directly alter the payability of massage therapy. However, it did help.
In the WCJ’s findings of fact in Schriver, it was noted that the claimant received massage therapy which was “supervised” by his chiropractor. Moreover, even though the chiropractor was not present during the sessions, the WCJ found that the therapist’s license as a massage therapist as per the aforementioned Massage Therapy Law, along with his open “communication” with the prescribing chiropractor constituted enough evidence to meet his burden of proof.
Additionally, in analyzing the board’s opinion, the court found that the definition of “health care services” should be broad. The court took issue with the board’s attempt to limit “health care services” to “medical treatment designed to diagnose and treat impairment, illness, disease and disability” and instead saw no reason not to also include treatment which would merely “enhance health and well-being.”
Summary of court's holding
In case any doubt remained, the court provided a nice summary of its holding:
… 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.
Essentially, the claimant in Schriver offered substantial evidence to supports a finding that the massage therapy in question was provided by the massage therapist under the chiropractor’s direction in connection with the claimant’s overall work injury treatment plan. According to the Schriver court, that finding obligates an employer to pay for massage therapy under Section 306(f.1)(1)(i) of the act.
Now that the Commonwealth Court has provided a roadmap to ensuring an injured worker can receive massage therapy, it is incumbent upon the claimant’s practitioner to educate clients and the medical community that massage therapy can be covered under the Workers’ Compensation Act under certain circumstances. This is especially true if existing clients are receiving massage therapy and simply paying out-of-pocket.
Christian Petrucci (firstname.lastname@example.org), of the Law Offices of Christian Petrucci, concentrates his practice in the areas of workers’ compensation and Social Security disability. He also counsels injured workers in matters involving employment discrimination and unemployment compensation benefits.
Originally published on The Legal Intelligencer. All rights reserved. This material may not be published, broadcast, rewritten, or redistributed.