MASSEURS ‑- APPLICABILITY OF PHYSICAL THERAPY LAW LICENSING REQUIREMENTS

MASSEURS ‑- APPLICABILITY OF PHYSICAL THERAPY LAW LICENSING REQUIREMENTS.

The act regulating the practice of physical therapy, chapter 18.74 RCW, does not exempt masseurs from the prohibitions contained therein nor are they exempt from similar prohibitions found in acts regulating other branches of practice within the healing arts.

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                                                                 February 7, 1962

Honorable Daniel Brink
State Representative, 35th District
320 Alaska Building
Seattle 4, Washington

                                                                                                                Cite as:  AGO 61-62 No. 94

Dear Sir:

            By letter previously acknowledged you have requested an opinion of this office on a question which we paraphrase as follows:

            Are masseurs exempt from the prohibitions contained in the physical therapist practice act or from similar prohibitions contained in acts regulating other branches of practice within the healing arts?

            We answer your question in the negative.

                                                                     ANALYSIS

            By the amendatory and new sections found in chapter 64, Laws of 1961, it is clear that the physical therapist practice act, chapter 18.74 RCW, is a mandatory licensure law, i.e., no one may engage in the practice of physical therapy without being licensed to do so.  Unlicensed persons may be enjoined from practicing, or holding themselves out as practicing, physical therapy.  Section 9, chapter 64, Laws of 1961.  A contrary conclusion of this office reached in 50 OAG 31 [[50 OAG 31c or Opinion No. 49-51-29 to H. G. Kimball, State Senator]](May 6, 1949), based on the provisions of chapter 239, Laws of 1949, is no longer apposite.

            There is no savings clause in chapter 18.74 RCW, as amended, referable to masseurs.  Section 10, chapter 64, Laws of 1961, expressly excepts certain activities from the operation of the act by stating:

            "Nothing in this chapter shall prohibit any person licensed in this state under any other act from engaging in the practice for  [[Orig. Op. Page 2]] which he is licensed.  Nothing in this chapter shall prohibit any person who, at any time prior to January 1, 1961 was practicing any healing or manipulative art in the state of Washington and designating the same as physical therapy or physiotherapy, from continuing to do so after the passage of this amendatory act:  PROVIDED, That no such person shall represent himself as being registered and shall not use in connection with his name the words or letters 'registered' or 'licensed' or 'R.P.T.'"

            The first sentence above quoted reflects the legislative intent that the act not operate as a prohibition by implication on the powers granted to licensees under other acts.  The second sentence operates as a modification of § 8, chapter 64, Laws of 1961, by allowing practitioners of any of the healing arts who have previously designated certain treatments as physical therapy treatments, to continue to do so as long as they do not misrepresent themselves as registered physical therapists.  As the phrase "healing art" is defined in RCW 43.74.005 (2) and used in RCW 43.74.065 and 43.74.075, it refers to various branches of the medical profession which are subject to licensing requirements, viz., medicine and surgery, osteopathy, osteopathy and surgery, chiropractic, chiropody, and drugless therapeutics.  See, also,Ellestad v Swayze, 15 Wn. (2d) 281, 130 P. (2d) 349 (1942).  This section does not allow the practice of physical therapy by masseurs or other unlicensed persons.

            As a consequence only those persons who are licensed and specifically authorized by statute to practice physical therapy or other branches of the medical profession may engage in activities which fall within the statutory definitions of these branches.  Physical therapy and drugless therapeutics, as used in the licensing statutes, are defined as follows:

            "'Physical therapy' means the treatment of any bodily or mental condition of any personby the use of the physical, chemical and otherproperties of heat, or cold, air, light, water, electricity, sound,massage and therapeutic exercise, . . ."  (Emphasis supplied.)  Section 1, chapter 64, Laws of 1961, amending RCW 18.74.010.

            "The term 'drugless therapeutics,'. . . consists of hydrotherapy, dietetics, electrotherapy, radiography, sanitation, suggestion, mechanical and manual manipulation for the stimulation of  [[Orig. Op. Page 3]] physiological and psychological action to establish a normal condition of mind and body, . . ."  (Emphasis supplied.)  RCW 18.36.010.

            While the physical therapy act expressly uses the term "massage," judicial interpretation has caused a similar inclusion in the drugless healing act.  In State v. Lydon, 170 Wash. 354, 16 P. (2d) 848 (1932), the court dealt with the terms "mechanotherapy" and "mechanical manipulation" saying:

            ". . . These terms mean simply a remedial treatment consisting of manipulating a part, or the whole, of the body, with the hand or by mechanical means.  In plain English, they mean massage, manually or mechanically performed. . . ."  (p. 366.)

            This view was affirmed inKelly v. Carroll, 36 Wn. (2d) 482, 219 P. (2d) 79 (1950), wherein the court stated:

            "In plain English language, a drugless healer practitioner is licensed to make use of (1) heat and cold through the medium of either water or electricity; (2) exercise or movement of the parts of the body; (3) manual or mechanical massage or vibration of parts of the body; (4) electric radiations or currents; (5) diet; and (6) mental suggestion. . . ."  (p. 487.)

            In addition to the above definitions which either expressly or by judicial interpretation would refer to the use of massage techniques in treating patients, the practice of medicine is comprehensively defined in the following language:

            "The practice of medicine and surgery consists of the use of drugs or medicinal preparations in or upon human beings, severing or penetrating the tissues of human beings, andthe use of any and all other methods in the treatment of diseases, injuries, deformities, or other physical or mental conditions. . ."  (Emphasis supplied.)  Section 1, chapter 284, Laws of 1961, amending RCW 18.71.010.  See, also,State v. Maxfield, 46 Wn. (2d) 822, 826, 285 P. (2d) 887 (1955).

            The term "massage" is defined as follows:

            ". . . a rubbing, kneading, etc. of part of the body, usually with the hands, as to stimulate circulation and make muscles or joints supple."  Webster's New Twentieth Century Dictionary, Unabridged, 2nd Ed.

             [[Orig. Op. Page 4]]

            With respect to the relationship of the drugless healing act and the function of a masseur, this office has issued two opinions, copies of which are enclosed, 30 OAG 743 (July 8, 1930) [[1929-30 OAG 743 to Department of Health]]and 24 OAG 244 (April 19, 1924) [[1923-24 OAG 244 to Prosecuting Attorney, Pierce County]], in which our approach has been that such a function is not an unauthorized practice of drugless therapeutics without a license when the masseur does not purport to treat an ailment, injury or disease toward the goal of effecting a cure.  In short, where the concept of healing is absent and the services are rendered in a routine fashion to refresh and stimulate without regard to any specific complaint or condition, it is our opinion that neither the practice of medicine nor any branch of the healing art is being conducted.  However, it requires no stretch of the imagination to visualize the unauthorized treatment of physical conditions by the use of massages, or other techniques commonly employed by masseurs.  See, 70 C.J.S. 838, Physicians and Surgeons, § 10 (4); 41 Am.Jur. 156, Physicians and Surgeons, § 27; and Annot., "Regulation of Masseurs," 17 A.L.R. (2d) 1183.  Within this framework, each case must be decided on its own merits.

            We trust that the foregoing will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

DAVID C. CUMMINS
Assistant Attorney General