Nelson v. Nationwide Mutual Insurance

36 Pa. D. & C.4th 1
CourtPennsylvania Court of Common Pleas, Philadelphia County
DecidedApril 16, 1998
Docketno. 9707-0453
StatusPublished

This text of 36 Pa. D. & C.4th 1 (Nelson v. Nationwide Mutual Insurance) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Philadelphia County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Nelson v. Nationwide Mutual Insurance, 36 Pa. D. & C.4th 1 (Pa. Super. Ct. 1998).

Opinion

LEVIN, J.,

This memorandum opinion concerns the parties’ cross-motions for judgment on the pleadings. The factual predicate for this case is as follows.

Plaintiff is a physician who provided physical therapy services1 to people injured in automobile accidents, but whom defendant has refused to compensate for those services. Defendant Nationwide Mutual Insurance Company writes automobile insurance policies that cover rehabilitation costs, but has refused to compensate plaintiff for the services at issue, because they were not provided by licensed physical therapists.

On July 9, 1997, plaintiff Nelson filed a class action complaint in which he asserted that defendant’s denial of compensation violated the Pennsylvania Motor Ve[3]*3hide Financial Responsibility Law, 75 Pa. C.S. §1701 et seq. Plaintiff claims this Act requires defendant “to pay physicians/medical providers for all such medical treatment at a rate not to exceed 110 percent of the applicable charge allowable under the federal Medicare regulations.” Complaint at p. 1. Plaintiff believes that defendant’s refusal to pay for these services is contrary to both accepted medical practice (as a part of which doctors routinely delegate physical therapy tasks to trained assistants under adequate supervision) and applicable regulatory statutes. Thus, plaintiff argues, this court should order defendant to reimburse the class members for treatment they provided and prohibit defendant from refusing to pay future bills for services performed by trained and supervised, but unlicensed, assistants.

On September 4, 1997, Nationwide filed an answer with new matter and a counterclaim. Defendant denies responsibility to compensate plaintiff for services rendered by unlicensed medical or physical therapy assistants. Defendant’s counterclaim cites the Physical Therapy Practice Act for the proposition that billing for personal therapy services is prohibited “unless such services are provided by a licensed physical therapist in accordance with this Act.” 63 Pa. C.S. §1304(b.1). Arguing that plaintiffs should not be able to benefit from their own “misrepresentations,” defendant asks us to order that all past payments for treatment by unlicensed assistants be returned. Answer at p. 14.

On October 8, 1997, this court approved a stipulated order presented by the parties, granting provisional certification to the following class of plaintiffs: “all Pennsylvania osteopathic doctors and/or medical doctors who have billed Nationwide Mutual Insurance Company for physical therapy/medical services provided to its in[4]*4sureds arising out of injuries suffered in motor vehicle accidents and whose claims for reimbursement were denied by Nationwide because the physical therapy services was (sic) not performed by a licensed physical therapist or physical therapist assistant licensed pursuant to the Pennsylvania Physical Therapy Practice Act . . . J. Levin’s order, October 8, 1997, p. 1.

We also scheduled briefing and argument on a “threshold issue” to be addressed in motions for judgment on the pleadings.2 This determinative issue is:

“Does the Pennsylvania Motor Vehicle Financial Responsibility Law obligate defendant to pay for physical therapy services prescribed by a medical or osteopathic doctor for an insured injured in a motor vehicle accident, where a medical doctor or osteopathic doctor has delegated the performance of the physical therapy modalities to that trained but unlicensed individual pursuant to the Pennsylvania Physical Therapy Practice Act . . . under the general supervision of that medical doctor or osteopathic doctor?” Id. at p. 2.

The stage having been set, the parties argued their cross-motions on February 3, 1998.

Defendant’s motion asserts the complaint fails to state a claim upon which plaintiffs may recover as a matter of law. Specifically, defendant argues that it is only responsible for payment of specified medical benefits “including, but not limited to . . . licensed physical therapy . . . .” MVFRL §1712(1). (emphasis added) Defendant claims that the MVFRL only requires it to pay for treatment provided by licensed therapists in [5]*5order to deter “the potential harm that could occur if such services were performed by unlicensed persons.” Defendant’s brief at p. 8. Further, defendant points to the PTPA for the proposition that it is unlawful for any unlicensed person to practice physical therapy:

“It shall be a violation of this Act for any person ... to utilize in connection with a business name or activity the words ‘physical therapy’ . . . unless such services are provided by a licensed physical therapist . . . .” PTPA §1304(b.1).

Moreover, regulations promulgated in furtherance of the Act provide “that the duties of a physical therapist are ‘nondelegable,’ unless they clearly do not require training and skill.” Defendant’s brief at p. 12, citing 49 Pa. Code §40.53. Finally, defendant denies liability for the payments at issue, because the Medical Practice Act, 63 PS. §422.1 et seq. and the Osteopathic Medical Practice Act, 63 PS. §271.1 et seq. do not specifically authorize doctors to delegate physical therapy services to unlicensed assistants.

Plaintiff also relies on the MVFRL, but reads it with a different emphasis. He argues the phrase “including, but not limited to . . . licensed physical therapy . . .” was intended to make insurers responsible for a wide array of medical benefits, not just those specified in this subsection. MVFRL §1712(1) (emphasis added); plaintiff’s brief at pp. 5-6. Plaintiff suggests such a determination is in keeping with the important public policy of indemnifying accident victims for harm they suffer on our highways. Further, plaintiff argues that while the PTPA limits the authority of licensed physical therapists to delegate treatment duties, it does not so restrict other medical professionals:

“Nothing in this Act . . . shall prohibit any person trained and licensed or certified to practice or to act [6]*6within the scope of his certification in this state under any other law, from engaging in the licensed or certified practice for which he is trained . . . nothing in this section shall limit a physician’s authority to practice medicine or bill for such practice.” 63 Pa.C.S. §§1304(a), 1304(b.1). (emphasis added)

Finally, plaintiff claims that generally accepted professional standards as well as statutes governing the conduct of medical professionals ostensibly permit the delegation of physical therapy services to unlicensed, supervised assistants.

“Nationwide has not, and cannot, argue that such delegation is not consistent with the prevailing and acceptable standards in the medical community of this Commonwealth. More importantly, physicians have been delegating the performance of physical therapy modalities to unlicensed technicians for many years both before and after enactment of the Physical Therapy Act, and neither the osteopathic board nor the medical board has ever issued any regulations prohibiting or even remotely suggesting that such delegation was improper.” Plaintiff’s opposition at pp. 12-13 (emphasis in original); see MPA at §422.17 and OMPA at §271.3.

Thus, plaintiff concludes, the delegation of treatment responsibilities to unlicensed assistants does not excuse defendant’s obligation to cover the cost of these treatments.

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Related

§ 1301
Pennsylvania § 1301
§ 1304
Pennsylvania § 1304
§ 1701
Pennsylvania § 1701

Cite This Page — Counsel Stack

Bluebook (online)
36 Pa. D. & C.4th 1, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nelson-v-nationwide-mutual-insurance-pactcomplphilad-1998.