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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
STATE FARM MUTUAL AUTOMOBILE : IN THE SUPERIOR COURT OF
INSURANCE COMPANY and STATE : PENNSYLVANIA
FARM FIRE AND CASUALTY COMPANY :
:
:
v. :
:
:
ROBERT J. CAVOTO, JR., FISHBONE : No. 2953 EDA 2017
ADVERTISING, INC., CAVOTO :
CHIROPRACTORS, P.C., MARGARET :
FISHER-CATRAMBONE, PENN :
CENTER PAIN MANAGEMENT, INC., :
TIPROF, INC., AND INTERNATIONAL :
HEALTH ALLIANCE, INC. :
:
Appellants
Appeal from the Order August 15, 2017
In the Court of Common Pleas of Delaware County Civil Division at
No(s): 2005-010716
BEFORE: GANTMAN, P.J., SHOGAN, J., and PLATT*, J.
MEMORANDUM BY SHOGAN, J.: FILED SEPTEMBER 21, 2018
Robert J. Cavoto, Jr. (“Dr. Cavoto”), Fishbone Advertising, Inc., Cavoto
Chiropractors, P.C., Margaret Fisher-Catrambone, Penn Center Pain
Management, Inc., TIPROF, Inc., and International Health Alliance, Inc.,
(collectively “Appellants”), appeal from the order entered August 15, 2017,
denying Appellants’ motion for post-trial relief following our remand to the
trial court. We affirm.
The trial court made the following findings of fact:
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* Retired Senior Judge assigned to the Superior Court.
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1. Plaintiffs are State Farm Mutual Automobile Insurance
Company and State Farm Fire And Casualty Company (“State
Farm”).
2. [Appellants] Robert J. Cavoto, Jr., Cavoto Chiropractors,
P.C., Penn Center Pain Management, Inc., TIPROF, Inc. and
International Health Alliance (“Dr. Cavoto”) are doctors of
chiropracty or entities offering chiropractic treatment.1
1 Robert J. Cavoto, D.C.[,] owns and operates the
entities offering chiropractic treatment and will be
referred to throughout the Decision as Dr. Cavoto.
3. An Amended Complaint was filed in the Delaware County
Court of Common Pleas by State Farm on December 14, 2005.
4. Count I of State Farm’s Amended Complaint seeks a
declaratory judgment that, under the Chiropractic Practice Act, 63
P.S. § 625.101 et seq. (the “Practice Act” or the “Act”), and the
Motor Vehicle Financial Responsibility Law, 75 Pa. C.S. § 1701 et
seq. (the “MVFRL”), State Farm is not obligated to remit payments
to Dr. Cavoto and his practices for those treatments and
procedures delegated to and performed by chiropractic support
personnel without special licenses or certifications.
5. Count I avers that [Appellants] improperly and unlawfully
utilized “unlicensed” chiropractic staff2 to administer various
adjunctive procedures and physical therapy (the “delegation”
issue).
2 In Pennsylvania, there is no licensure requirement
for chiropractic assistants.
6. Count II of State Farm’s Amended Complaint seeks a
declaratory judgment, that pursuant to 18 Pa.C.S. § 4117 et seq.
(the “Insurance Fraud Statute”), Dr. Cavoto and his practices
violated the Insurance Fraud Statute by purchasing lists of motor
vehicle accident victims and contacting those injured individuals
regarding potential treatment (the “solicitation” issue).
7. On September 2 and 3, 2008, the Honorable George A.
Pagano presided over a bench trial addressing Counts I and II.3
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3 The other three (3) Counts were bifurcated and have
not been considered by the trial court. Those Counts
include: Count III, Statutory Insurance Violation of
18 Pa.C.S.A. 4117(a)(5) & (6), Count IV Restitution
for Mistaken Payment and Count V, Unjust
Enrichment.
8. Following trial and upon his consideration of the Amended
Complaint, by Order dated July 10, 2009, Judge Pagano ruled
against [State Farm] on Count I, the delegation issue, which
sought a declaratory judgment determining Dr. Cavoto’s
delegation of adjunctive procedures to chiropractic support staff
was a violation of the Chiropractic Practice Act, and for this reason
any invoices submitted by [Appellants] to State Farm were not
compensable. Judge Pagano ruled in favor of [State Farm] as to
Count II, the solicitation issue.
9. Regarding the delegation issue, [State Farm] filed an appeal
to the Pennsylvania Superior Court with respect to the [c]ourt’s
ruling in favor of Dr. Cavoto on Count I.[1]
10. The Pennsylvania Superior Court considered the record
below as it concerns the delegation issue and delivered the
following directive: “Upon remand, the trial court should make
more specialized findings and determine whether any of the
procedures allegedly performed by unlicensed personnel required
formal chiropractic education or training, including further inquiry
by the court as to the scope of those procedures.” State Farm
Mut. Auto. Ins. Co. v. Cavoto, 34 A.3d 123, 133 (Pa. Super. 2011).
____________________________________________
1 On August 6, 2009, State Farm filed two notices of appeal, both of which
this Court subsequently quashed sua sponte. State Farm also filed on August
6, 2009, a petition for determination of finality pursuant to Pa.R.C.P. 341(B)-
(C). The trial court originally denied the petition, but subsequently amended
the order after State Farm petitioned the court to certify the appeal as an
appealable interlocutory order pursuant to Pa.R.A.P. 311. On September 4,
2009, the trial court deemed the interlocutory appeal as appealable. On
September 24, 2009, the trial court formally denied State Farm’s motion for
post-trial relief. On October 8, 2009, however, the court amended the order,
granting State Farm’s request to file a post-trial motion nunc pro tunc, but
denying the motion on the merits nonetheless. State Farm then filed its notice
of appeal on October 21, 2009.
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Trial Court Opinion, 7/7/17, at 1-4.
On remand, the trial court conducted a nonjury trial on April 3 and 4,
2017. Following the hearing, the trial court made the following determination:
On the Amended Complaint, Count I, regarding the
delegation of certain adjunctive procedures to unlicensed support
personnel by licensed chiropractors in the course of treatment of
patients having insurance coverage under the Motor Vehicle
Financial Responsibility Law, 75 Pa.C.S. §§ 1701-1799.7 (the
“MVFRL”), and determining reimbursement to those licensed
chiropractors by insurers under the MVFRL for services rendered
in the treatment of those patients, the rights, status and other
legal relationships among licensed chiropractors, patients,
insureds and insurers under the Chiropractic Practice Act, 63 P.S.
§ 625.101-625.1106 (the “CPA”), and the MVFRL shall be decided
taking into consideration the following declaration of specialized
findings:
1. Non-specialized tasks associated with the performance of
passive modalities (e.g. the placement of hot/cold packs, turning
machines on/off, assisting patients on and off tables) may be
delegated to unlicensed support personnel so long as a licensed
chiropractor makes all of the clinical decisions.
2. The following adjunctive procedures which are passive
modalities may be delegated to unlicensed support personnel so
long as a licensed chiropractor makes all of the clinical decisions:
(1) Electrical Muscle Stimulation, (2) Mechanical Traction, (3) Hot
Packs/Cold Packs, and (4) Hydrotherapy. Once a licensed
chiropractor has made the clinical decision regarding a patient’s
care to utilize one or more of these delegable passive modalities,
these delegable passive modalities may be implemented by
unlicensed support personnel prior to a daily examination of that
patient by a licensed chiropractor.
3. The following adjunctive procedures which are therapeutic
procedures may not be delegated to unlicensed support staff: (1)
Massage, (2) Therapy, and (3) Therapeutic Exercise.
Trial Court Opinion, 7/7/17, at 14-16. Appellants filed a post-trial motion on
July 17, 2017, pursuant to Pa.R.C.P. 227.1. The trial court denied Appellants’
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post-trial motion on August 15, 2017. Appellants filed a notice of appeal on
September 11, 2017.
On appeal, Appellants purport to present the following issues for our
review:
1. Can chiropractors delegate therapeutic exercise to
unlicensed personnel?
2. Did the trial court improperly admit Dr. Michael Schneider
as an expert witness and place too much emphasis on the weight
of his testimony?
3. Did the trial court improperly overlook the testimony and
qualifications of Dr. Jon McCullough, a former Chairman of the
State Board of Chiropractic?
4. Are chiropractors permitted to advise potential patients of
their rights under their car insurance policies?
5. Can State Farm proceed with a damages trial on portions of
the Amended Complaint that were never tried?
Appellants’ Brief at 2.
Despite this recitation of five issues presented for review, Appellants,
throughout their brief, develop and refer primarily to two issues: 1) the
“delegation issue,” which involved the delegation by chiropractors of certain
treatment to unlicensed staff, and 2) the “solicitation issue,” which involved
Appellants’ solicitation practices. Furthermore, on June 27, 2018, Appellants
filed an “Application for Partial Withdrawal of Appeal.” The Application stated
the following:
Appellants move to partially withdraw their appeal as it
relates to the solicitation issue as follows:
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1. In this matter, Appellants appealed on two separate
issues: (1) delegation by chiropractors of certain treatment
to unlicensed staff and (2) the solicitation practices of the
Appellants.
2. In fact, in Appellants’ Amended Brief, the arguments
were delineated between “The ‘Delegation’ Issue” and “The
‘Solicitation’ Issue.”
3. Appellants seek to withdraw their appeal solely as it
would apply to the solicitation issue and all arguments
supporting their appeal as documented on pages 12 through
15 of their Amended Brief.
4. Appellants also seek to withdraw the following
question for review: (4) “Are chiropractors permitted to
advise potential patients of their rights under their car
insurance policies?”
Appellants’ Application for Partial Withdrawal of Appeal, 6/27/18, at 3
(unnumbered).
We hereby grant Appellants’ Application for Partial Withdrawal of
Appeal.2 Accordingly, the “delegation issue” is the sole issue before us for
consideration. More specifically, we note that this Court narrowed the issue
for the trial court’s consideration on remand: the trial court was directed to
“make more specialized findings and determine whether any of the procedures
allegedly performed by unlicensed personnel required formal chiropractic
education or training.” Cavoto, 34 A.3d at 133. Furthermore, the
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2 We note that given the procedural posture of this case, arguably the
“solicitation issue” was not preserved for our current consideration. We need
not make that determination, however, given our grant of Appellants’
application to withdraw that issue.
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“procedures” that the parties focused on were the implementation of
“therapeutic exercises” conducted in the chiropractic offices.
In support of their claim that the trial court erred in its determination
on remand, Appellants assert that chiropractors are permitted to delegate the
implementation and supervision of therapeutic exercises for patients pursuant
to the Chiropractic Practice Act (“CPA”) and the Motor Vehicle Financial
Responsibility Law (“MVFRL”). Appellants’ Brief at 6-12. Specifically,
Appellants maintain that as part of Dr. Cavoto’s treatment of patients, he
prescribed “therapeutic exercise.” Id. at 6. Appellants explain that:
Prior to prescribing therapeutic exercise, Dr. Cavoto, or another
licensed chiropractor, makes a diagnosis and determines whether
therapeutic exercise would be appropriate and beneficial. If
performed on premises, the actual activities are supervised by a
chiropractic assistant while a licensed chiropractor remains on
site.
Therapeutic exercise basically consists of activities such as
using stretch bands, walking on a treadmill, stretching,
progressive weight lifting, and progressive aerobics.
Appellants’ Brief at 6-7.
While Appellants acknowledge that the CPA “forbids chiropractors from
delegating ‘any activity or duty to such unlicensed individuals which requires
formal education or training in the practice of chiropractic or the knowledge
and skill of a licensed chiropractor,” Appellants maintain that the
implementation of therapeutic exercises do not require chiropractic education,
skill, or training. Id. Appellants’ Brief at 7. Appellants further assert that
there was no evidence presented at the April 3 and 4, 2017 bench trial
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supporting the conclusion that therapeutic exercises required chiropractic
education, skill, or training. Id. at 8-10. Therefore, Appellants argue, the
trial court’s decision that Dr. Cavoto committed statutory insurance fraud
under the MVFRL by delegating implementation of therapeutic exercise to
unlicensed personnel was against the “weight of the evidence.” Id. at 10.
Appellants contend that “[the trial court] had no basis in law or fact to
determine that delegation of therapeutic exercise violates the MVFRL.” Id. at
12.
Our standard of review for nonjury proceedings is as follows:
Our review in a non-jury case is limited to whether the
findings of the trial court are supported by competent evidence
and whether the trial court committed error in the application of
law. We must grant the court’s findings of fact the same weight
and effect as the verdict of a jury and, accordingly, may disturb
the non-jury verdict only if the court’s findings are unsupported
by competent evidence or the court committed legal error that
affected the outcome of the trial. It is not the role of an appellate
court to pass on the credibility of witnesses; hence we will not
substitute our judgment for that of the fact-finder. Thus, the test
we apply is not whether we would have reached the same result
on the evidence presented, but rather, after due consideration of
the evidence which the trial court found credible, whether the trial
court could have reasonably reached its conclusion.
Agostinelli v. Edwards, 98 A.3d 695, 704 (Pa. Super. 2014).
The relevant statute in the MVFRL provides:
An insurer issuing or delivering liability insurance policies covering
any motor vehicle of the type required to be registered under this
title ... shall make available for purchase first party benefits with
respect to injury arising out of the maintenance or use of a motor
vehicle as follows:
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(1) Medical benefit.—Subject to the limitations of section 1797
(relating to customary charges for treatment), coverage to
provide for reasonable and necessary medical treatment
and rehabilitative services, including, but not limited to ...
chiropractic ... all without limitation as to time, provided
that, within 18 months from the date of the accident causing
injury, it is ascertainable with reasonable medical
probability that further expenses may be incurred as a result
of the injury. Benefits under this paragraph may include
any nonmedical remedial care and treatment rendered in
accordance with a recognized religious method of healing.
75 Pa.C.S. § 1712(1) (emphasis added).
Because the MVFRL does not provide specific definitions for some terms
in 75 Pa.C.S. § 1712(1), we turn to the CPA. “Chiropractic” is defined under
the Act as:
A branch of the healing arts dealing with the relationship between
the articulations of the vertebral column, as well as other
articulations, and the neuro-musculo-skeletal system and the role
of these relationships in the restoration and maintenance of
health. . . . The term shall . . . include . . . the use of adjunctive
procedures in treating misaligned or dislocated vertebrae or
articulations and related conditions of the nervous system,
provided that, after January 1, 1988, the licensee must be
certified in accordance with this act to use adjunctive procedures;
and nutritional counseling, provided that nothing herein shall be
construed to require licensure as a chiropractor in order to engage
in nutritional counseling.
63 P.S. § 625.102 (emphasis added). “Adjunctive procedures” is defined as
“Physical measures such as mechanical stimulation, heat, cold, light, air,
water, electricity, sound, massage and mobilization.” Id.
The following provisions of the CPA also are instructive:
§ 625.304. Certification to use adjunctive procedures
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(a) Qualifications. – In addition to its other powers and duties
under this act, the board shall have the power and duty to
certify qualified licensees to use adjunctive procedures….
63 P.S. § 625.304(a).
§ 625.601. Supportive personnel
Nothing in this act shall prohibit a licensed chiropractor from
utilizing the assistance of unlicensed supportive personnel
performing under the direct on-premises supervision of a licensed
chiropractor, provided that a chiropractor may not delegate
any activity or duty to such unlicensed individuals which
requires formal education or training in the practice of
chiropractic or the knowledge and skill of a licensed
chiropractor.
63 P.S. § 625.601 (emphasis added). Thus, the CPA does not specifically
state which adjunctive procedures, including therapeutic exercises, may be
delegated to unlicensed supportive personnel.
With these statutory provisions in mind, we consider the trial court’s
determination of the issue this Court placed before it on remand. The trial
court was directed to “make more specialized findings and determine whether
any of the procedures allegedly performed by unlicensed personnel required
formal chiropractic education or training.” Cavoto, 34 A.3d at 133. Again,
the procedures at issue and contested by the parties were adjunctive
procedures classified as “therapeutic exercises.”
As noted, the trial court held a nonjury trial on April 3 and 4, 2017.
During that proceeding, the trial court heard testimony from Dr. Cavoto; State
Farm’s expert, Michael Schneider, D.C. (“Dr. Schneider”); and Appellants’
expert, Jonathon McCullough, D.C (“Dr. McCullough”). Trial Court Opinion,
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7/7/17, at 5; N.T., 4/3/17 at 1-63; N.T., 4/4/17, at 1-292. The trial court
summarized the testimony of the witnesses in its opinion. Trial Court Opinion,
7/7/17, at 5-9. After considering the testimony and evidence presented, the
trial court made the following determination:
the key word is “therapeutic” when discussing therapeutic
procedures and exercises. The proper application of therapeutic
procedures involves constant dialogue and observation between a
patient and a skilled practitioner. In order to achieve the goal of
effecting change through the application of clinical skills, the
practitioner must modify the procedures when necessary based
on patient feedback and observation. Responding to patient
feedback is an essential element of therapeutic procedures and
requires the clinical decision-making of a skilled practitioner. In a
chiropractic setting, knowing how and when to make what are
often subtle modifications to a patient’s care requires the formal
education and training of a licensed chiropractor and, for this
reason, cannot be delegated to unlicensed support staff.
Trial Court Opinion, 7/7/17, at 12-13. Accordingly, the trial court concluded
that “Therapeutic exercise may not be delegated to unlicensed support staff.”
Id. at 13.
Our review of the notes of testimony from the April 3 and 4, 2017 trial
reflects that the trial court’s summation of testimony and evidence presented
is supported by the record. Specifically, testimony from Dr. Schneider, State
Farm’s expert, supports the trial court’s determination regarding the nature
of therapeutic exercises, and the need for a licensed chiropractor to be
involved in the implementation of those exercises:
[Dr. Schneider]: [T]herapeutic exercises are required [sic] active
involvement from the patient. The patient’s not a passive
recipient of the procedure. They’re actively involved with the
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clinic[ian] in a one on one relationship developing muscular
strength, endurance and flexibility.
***
[State Farm’s Counsel]: Okay. So, with therapeutic
exercises, what component of the supervision of therapeutic
exercises involves that skilled involvement and clinical decision-
making?
[Dr. Schneider]: Well, every aspect of the encounter during
therapeutic exercise requires an understanding of anatomy,
physiology, muscle activity, form, all these things are being --
there’s a real time assessment that occurs during the application
of therapeutic exercise, which makes it very, very impossible to
parse out the clinical decision-making part from some mundane
part that can be delegated. It’s just intricately a part of
therapeutic exercise, where it’s not an intricate part of [passive
therapies]. It is an intricate part of [manual therapy] because you
can’t separate the knowledge, skill and training it takes in manual
therapy into two parts, the knowledge and skillful part and the
unknowledgeable part. The same is true with therapeutic
exercise. It’s not true with the others. That’s why I believe that
there are many components of the other passive procedures that
can be safely delegated to staff personnel.
[State Farm’s Counsel]: Are there any aspects of these
therapeutic exercises that do not require formal education and
training?
[Dr. Schneider]: No. As I said, that’s why I don’t believe you can
parse out sections of this one on one supervised session to
somebody else. It’s an intricate component of the procedure
itself.
N.T., 4/4/17, at 51-55. Furthermore, when Dr. Schneider was again asked if
“any component of therapeutic exercises can be parsed out because it does
not involve chiropractic education and training,” Dr. Schneider responded as
follows:
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Again, the application of therapeutic exercises inherently involves
clinical decision-making that can’t be parsed out and requires real
time assessment between clinician and patient and the clinician
has to be skillful and knowledgeable about exercise science to
perform it correctly.
Id. at 144. Thus, Dr. Schneider consistently opined that application of
therapeutic exercise is not delegable to unlicensed support staff. Id. at 60.
Moreover, Appellants’ expert, Dr. McCullough, while stating his opinion
that therapeutic exercise may be delegated to support staff, N.T., 4/4/17, at
208, acknowledged there can be situations involving therapeutic exercise
where the licensed practitioner should be involved because the practitioner
needs to be making “real time decisions on what the patient can and cannot
do[.]” Id. at 250. Dr. McCullough agreed that those adjustments and
modifications necessary during some therapeutic exercises should be made
by the licensed practitioner and would not be appropriate to be delegated to
unlicensed support personnel. Id. at 250-253.
Thus, after due consideration of the evidence, which the trial court found
credible, we conclude that the trial court reasonably determined that
therapeutic exercises cannot be delegated to unlicensed support personnel.
Contrary to Appellants’ assertion, this conclusion is supported by ample
testimony presented at trial. Indeed, Appellants’ position appears to be simply
that the trial court should have disregarded the testimony of Dr. Schneider
and accepted the testimony of Dr. Cavoto and Dr. McCullough as
determinative. Because the trial court’s finding is supported by the evidence
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of record, and we discern no misapplication of the law, we may not substitute
our judgment for that of the trial court. Agostinelli, 98 A.3d at 704. We
decline Appellants’ invitation to do so.
Accordingly, we conclude that the trial court’s determination that
implementation of therapeutic exercise may not be delegated to unlicensed
support staff is supported by the record and we discern no error in application
of the law in this determination. We further note that the trial court’s rulings
regarding other adjunctive procedures, in addition to therapeutic exercise, are
also supported by evidence of record. Thus, we affirm the trial court’s order
denying Appellants’ post-trial motion challenging the trial court’s conclusion
regarding the “delegation issue” on remand.
Appellants’ Application for Partial Withdrawal of Appeal is granted.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/21/18
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