IN RE: the Claim of Donna L. EVEVSKY (2004)

Appeal from a decision of the Workers' Compensation Board, filed May 27, 2003, which, inter alia, ruled that claimant was not authorized to receive medical treatment from a massage therapist.

Claimant was awarded workers' compensation benefits for a permanent partial disability after sustaining injuries to her neck and shoulder in a work-related accident in 1993.   Claimant's case was closed in 1995, but was reopened in 2001 following, among other things, an objection by the employer's workers' compensation carrier to claimant's request for authorization of treatment by a licensed massage therapist.   The Workers' Compensation Law Judge determined that the treatment was not authorized by Workers' Compensation Law § 13-b and the Workers' Compensation Board affirmed, prompting this appeal.

Workers' Compensation Law § 13-b prohibits medical providers from rendering care and treatment to recipients of workers' compensation benefits unless the providers are expressly authorized by the Board, or subject to one of the statutory exceptions listed thereunder.   Here, it is undisputed that claimant's treating massage therapist was not so authorized.   Furthermore, the therapist did not perform the treatment under the active and personal supervision of an authorized physician or under other circumstances that would warrant a finding that massage therapy is explicitly or impliedly authorized by the statute (see Workers' Compensation Law § 13-b [1];  Matter of Sanginario v. County of Monroe Pure Waters Div., 84 A.D.2d 591, 592, 444 N.Y.S.2d 207 [1981];  see also Matter of Smith v. Tompkins County Courthouse, 60 N.Y.2d 939, 471 N.Y.S.2d 46, 459 N.E.2d 155 [1983] ).   Accordingly, we find no basis to disturb the Board's decision.

Claimant's remaining arguments, including her assertion that the statute is unconstitutional (see Szold v. Outlet Embroidery Supply Co., 274 N.Y. 271, 276-278, 8 N.E.2d 858 [1937] ), have been considered and found to be without merit.

ORDERED that the decision is affirmed, without costs.

CARDONA, P.J.

PETERS, MUGGLIN, ROSE and KANE, JJ., concur.