On January 9, 2009, the Superior Court of Pennsylvania unanimously affirmed the September 5, 2007 Opinion and Order of the Honorable Gary DiVito, Court of Common Pleas of Philadelphia County, which sustained the demurrer of Progressive Casualty Insurance Company (“Progressive”) and dismissed the class action complaint of plaintiff and other similarly situated massage therapists seeking reimbursement under the Motor Vehicle Financial Responsibility Law (“MVFRL”), 75 Pa.C.S. § 1701, et seq., for their performance of therapeutic massage therapy prescribed by medical doctors to treat injuries sustained by an insured in a motor vehicle accident. Robert Feltoon and Mark Seiberling represented Progressive in this case.

The Superior Court affirmed that, under the MVFRL and the Physical Therapy Practice Act, 63 Pa.C.S. § 1301, et seq., it is illegal for massage therapists in Pennsylvania to perform therapeutic massage to treat specific injuries suffered by an insured in a car accident, even if the massage therapy is performed pursuant to a doctor’s prescription and even if the doctor provides oversight of the message therapy. Under Pennsylvania law, only licensed physical therapists can perform therapeutic massage treatments on patients who are injured if the purpose of the massage therapy is to help remedy the specific injury, rather than merely to alleviate stress or muscle cramping. Thus, because massage therapists may not lawfully perform therapeutic massage services to treat the specific pathology of an insured, the Superior Court affirmed that Progressive does not have to reimburse plaintiff or other similarly situated massage therapists as a matter of law.

Progressive was the third insurer sued by counsel for plaintiff on behalf of a purported class of massage therapists seeking reimbursement for the same type of services under the MVFRL. The first two insurers (Nationwide and State Farm) chose not to challenge the same claims and voluntarily entered settlements in which they agreed not to deny claims for insurance reimbursement solely on the basis that they were being submitted by a massage therapist rather than a licensed physical therapist. Indeed, counsel for plaintiff supplied the trial court and the Superior Court with the settlements in those other two cases. Rather than capitulate as those other insurers had done, Progressive chose to fight the legality of the reimbursement request in the Pennsylvania courts and won.

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