J-A14023-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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:




____________________________________
* 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



____________________________________________


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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