Boleratz v. Workers' Compensation Appeal Board

*1020DISSENTING OPINION BY

Judge SMITH-RIBNER.

I disagree with the majority’s erroneous determination that medically prescribed massage therapy provided to Blaine Boler-atz (Claimant) by a nationally certified massage therapist does not constitute “medical services” compensable under Section 306(f.1)(1)(i) of the Workers’ Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 531(1)(i). The massage therapy services were causally related to Claimant’s work injury and were provided on referral from his physician and pursuant to the physician’s prescriptions. The majority’s narrow interpretation of Section 306(f.l)(l)(i) not only directly conflicts with the Court’s prior decisions but also contravenes the humanitarian objectives of the Act.1

Claimant sustained work-related low back strain while employed by Airgas, Inc. (Employer) as a truck driver. In May of 2004 Bernard Proy, M.D., referred Claimant to massage therapist Marilyn Bell for massage therapy because Claimant was not getting relief from chiropractic treatment. The record shows that Bell received 900 hours of training and that she holds a national certificate for massage therapy. In “Physician’s Prescription/Referral/Medical Necessity” forms, Dr. Proy prescribed the following treatment, identified by modalities/procedures numbers, to be provided Claimant by Bell twice a week beginning May 2004: therapeutic exercise (R.O.M.) (97110); massage therapy (97124); and manual therapy techniques (neuromuscular therapy) (97140). Before the Workers’ Compensation Judge (WCJ), Employer stipulated that Bell’s services were causally related to Claimant’s injury. Claimant testified regarding his condition prior to receiving massage therapy, and he indicated that because of the massage therapy he was able to sleep at night and to continue to work without pain medication. The WCJ specifically found that the massage therapy provided pain relief to Claimant.

Section 306(f.1)(1)(i) of the Act requires that an employer “provide payment ... for reasonable surgical and medical services, services rendered by physicians or other health care providers, ... medicines and supplies, as and when needed.” (Emphasis added.). The majority holds 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.” Majority op. at 1019. According to the majority, “[i]n the absence of a license, the provider’s services are not reimbursable as services rendered by a health care provider under the Act.” Id.

To support its narrow interpretation, the majority relies upon Taylor v. Workers’ Compensation Appeal Board (Bethlehem Area School District), 898 A.2d 51, 53 (Pa.Cmwlth.2006), which stated that “[i]n order to be reimbursable under Section 306(f.1)(1) of the Act, ‘medical services’ must be rendered by a duly licensed medical practitioner, even if there is no licensing program for that medical specialty.” (Emphasis added.) In Taylor the Court ultimately concluded, correctly so, that the services provided by the vocational expert *1021there were not reimbursable as “non-medical services” incidental to medical services. The WCJ found that the vocational expert was hired to serve as a liaison between the claimant and the employer and to correct the supposed wrongs committed by the employer’s vocational experts rather than to treat the claimant’s work injury. As Taylor correctly notes, medical services are reimbursable just as services provided by a health care provider under Section 306(f.1)(1)(i).

In Taylor the Court relied upon Morwald v. Workmen’s Compensation Appeal Board (Eng’g & Refrigeration, Inc.), 143 Pa.Cmwlth. 511, 599 A.2d 307 (1991), and Foyle v. Workmen’s Compensation Appeal Board (Liquid Carbonic I/M Corp.), 160 Pa.Cmwlth. 534, 635 A.2d 687 (1993). In Morwald the Court considered whether psychotherapy provided to the claimant by a licensed registered nurse, board-certified in psychiatric nursing, was compensable under Section 306(f)(1), then in effect.2 Agreeing with the claimant that it was error for the Board to require that the nurse be a licensed psychotherapist when none exists, the Court nonetheless affirmed the Board’s decision on alternate grounds. The Court announced its holding “that psychotherapy, as a modality of treatment, is a medical service, not a separate field of the healing arts which requires specific licensure as a prerequisite to coverage under § 306(f).” Id., 599 A.2d at 309 (emphasis added). Its reasoning is stated in part as follows at 309:

[Psychotherapy] ... is a therapeutic or corrective measure, which O’Connor [the registered nurse] is not licensed to prescribe. (Emphasis in original). O’Con-nor may have been qualified by virtue of her nursing license to provide psychotherapy according to a regimen prescribed by a healing arts practitioner whose license includes diagnostic and prescriptive functions. Still, without supervision by, or at a minimum, a referral from such a practitioner, the psychotherapy rendered by O’Connor does not come within the provisions of § 306(f). (Emphasis added.)

The provider of psychotherapy in Foyle held a doctorate in education but held no license to practice any of the healing arts in the Commonwealth. There was no indication that he was referred by the claimant’s physician or other licensed practitioner to provide psychotherapy to the claimant. The provider testified that he and his partner, a Pennsylvania licensed clinical psychologist, supervised each other’s case loads at least once per week, although the Court held that the testimony failed to show that he performed work under the supervision of the psychologist. Relying on Morwald the Court held that the psychotherapy was not compensable. In Petrilla v. Workmen’s Compensation Appeal Board (People’s Natural Gas), 692 A.2d 623 (Pa.Cmwlth.1997), the Court reaffirmed Morwald and held that “[services provided to a claimant by someone who is not a licensed practitioner of the healing arts, to be recoverable under Section 306(f)(1), must be provided under the supervision of a practitioner, or at a minimum, by a referral from the practitioner.” Petrilla, at 625 (emphasis added).

Under Morwald, Foyle and Petrilla the employer is required to pay for services provided to a claimant by an unlicensed *1022therapist if such services were provided under the supervision of a licensed practitioner or upon referral from or prescription by such practitioner for treatment of the claimant’s work injury. Those cases do not support the proposition stated in Taylor, ie., to be reimbursable under Section 306(f.1)(1)(i) the medical services provided to a claimant must be rendered by a “duly licensed medical practitioner.” The proposition stated in Taylor is erroneous as it purports to find support in prior decisions that stand for a contrary view. This Court should clarify the incorrect statement of the law in Taylor to avoid its improper application to cases, such as the one here, to defeat a claimant’s entitlement to payment for massage therapy provided on referral from a physician and pursuant to his prescription to treat the claimant’s work-related injury.

It is well settled that treatment may be reasonable and necessary even if it is palliative in nature, ie., only designed to manage the claimant’s symptoms rather than to cure or permanently improve the underlying condition. Haynes v. Workers’ Compensation Appeal Board (City of Chester), 833 A.2d 1186 (Pa.Cmwlth.2003). The massage therapy provided by Bell upon Dr. Proy’s referral and pursuant to his prescriptions was to treat Claimant’s work injury, and, therefore it constitutes reasonable “medical services” for which Employer is required to pay. Moreover, the massage therapy provided to Claimant is clearly distinguishable from the vocational services provided in Taylor, which the Court indicated was intended to help the claimant’s assimilation back into the work environment. Such vocational services cannot be considered medical services under Section 306(f.1)(1)(i) for treatment of symptoms related to the work injury.

Even assuming, arguendo, that the massage therapy provided by Bell is not compensable as medical services, it is nevertheless compensable as “non-medical services” incidental to medical services because it is causally related and incidental to the treatment of Claimant’s work injury. See Tobias v. Workmen’s Compensation Appeal Board (Nature’s Way Nursery, Inc.) 141 Pa.Cmwlth. 438, 595 A.2d 781, 786 (1991) (awarding expenses for artificial insemination necessitated by sexual dysfunction caused by the work injury, stating that “expenses, even if not an actual part of the treatment, are com-pensable if they are incidental to the treatment”). See also Section 306(f.1)(1)(ii), requiring the employer to pay “for medicines and supplies, hospital treatment, services and supplies and orthopedic appliances, and prostheses ... ”; Rieger v. Workmen’s Compensation Appeal Board (Barnes & Tucker Co.), 104 Pa.Cmwlth. 42, 521 A.2d 84 (1987) (holding that expenses for installing hand controls in claimant’s automobile and remodeling his home to permit him to use his wheelchair were compensable as “orthopedic appliances”).

The Court’s decisions in Morwald, Foyle and Petrilla do not support the result reached by the majority, and, in fact, they hold directly to the contrary. The Board’s order should be reversed, and the WCJ’s grant of Claimant’s petition to review medical treatment and/or billing should be reinstated.

. It is worth repeating that the Act is remedial in nature and is intended to benefit injured workers and their dependents. Gallie v. Workers’ Compensation Appeal Board (Fichtel & Sachs Indus.), 580 Pa. 122, 859 A.2d 1286 (2004). Accordingly, the Act must be liberally construed to effectuate such humanitarian objectives. Hannaberry HVAC v. Workers’ Compensation Appeal Board (Snyder, Jr.), 575 Pa. 66, 834 A.2d 524 (2003). Any borderline interpretations of the Act must be construed in favor of the injured worker. Id.

. Section 306(f)(1) of the Act previously provided that “the employer shall provide payment for reasonable surgical and medical services, services rendered by duly licensed practitioners of the healing arts, medicines, and supplies, as and when needed....” (Emphasis added.) In 1993 Section 306(f)(1) was amended to the current version and renumbered to Section 306(f.1)(1).