IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Armour Pharmacy, :

Petitioner :

:

v. : No. 1726 C.D. 2017

: Argued: December 12, 2018

Bureau of Workers’ Compensation :

Fee Review Hearing Office :

(Wegman’s Food Markets, Inc.), :

Respondent :

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE ROBERT SIMPSON, Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE ELLEN CEISLER, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY PRESIDENT JUDGE LEAVITT FILED: April 12, 2019

Armour Pharmacy (Pharmacy) petitions for review of an adjudication 

of the Bureau of Workers’ Compensation, Fee Review Hearing Office (Hearing 

Office) vacating two determinations of the Bureau’s Medical Fee Review Section 

that directed Wegmans Food Markets, Inc. (Employer) to reimburse Pharmacy for 

medications it had dispensed to Kathleen Hackman (Claimant). Employer 

challenged these fee determinations for the stated reason that Pharmacy was not a 

“provider” under the Pennsylvania Workers’ Compensation Act (Act)1and, thus, not 

entitled to reimbursement. Concluding that the Bureau’s Medical Fee Review 

Section lacked jurisdiction to determine whether Pharmacy was a “provider,” the 

 

1 Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§1-1041.4, 2501-2710.
2

Hearing Office vacated the two determinations and dismissed Employer’s appeal 

thereof. Pharmacy argues that the Hearing Office’s adjudication has left it without 

a forum in which to challenge Employer’s refusal to reimburse it for medications it 

dispensed to treat Claimant for her work injury, and this violates due process.

Concluding that this matter is controlled by our recent decision in Armour Pharmacy 

v. Bureau of Workers’ Compensation Fee Review Hearing Office (Wegman’s Food 

Markets, Inc.) __ A.3d __, (Pa. Cmwlth., No. 1725 C.D. 2017, filed March 29, 2019)

(en banc) (Armour I),

2 we reverse and remand.

On November 18, 2016, Jeffrey M. Friedman, M.D., prescribed 

Claimant a medical cream compound consisting of “Ketamine 10%, Flurbiprofen 

10%, Gabapentin 10%, Cyclobenzaprine 3%, Bupivacaine 2%, [and] Transdermal 

Base (qs)” to treat her pain. Reproduced Record at 5a (R.R. __). Pharmacy 

dispensed the medication to Claimant on two occasions and thereafter invoiced 

Employer $2,426.11 for each prescription. Employer denied payment on the first 

invoice of November 22, 2016, for the following reasons: 

Charge for pharmaceuticals exceed the fees established by the 

fee schedule/UCR [usual and customary] rates [and Employer] 

does not cover pain cream compounds[.] [A] letter of medical 

necessity from your doctor is required if no alternatives are 

available[.]

R.R. 4a. Employer denied payment on the second invoice of December 21, 2016, 

stating, “Denied: Medical records. Please resubmit with related medical records to: 

[Employer’s address].” R.R. 23a.

 

2 This matter was argued seriately with Armour I. The two cases were consolidated at the hearing 

before the hearing officer. Nevertheless, the hearing officer issued two separate decisions that were 

not consolidated before this Court. 
3

Pharmacy filed two applications with the Bureau’s Medical Fee Review 

Section, requesting a review of Employer’s refusal to pay the two invoices. The 

Medical Fee Review Section determined that the amount of payment owed under the 

required “Workers’ Compensation fee calculations” was $2,214.76. R.R. 28a. The 

Medical Fee Review Section directed Employer to pay Pharmacy $2,214.76, plus 

ten percent interest on each invoice. 

Employer filed two requests for a hearing to contest the fee review 

determinations. As to the first determination, Employer asserted that Pharmacy was 

not a “provider” under the Act3and that the cost of the compound cream was 

excessive and exceeded the statutory rate. As to the second determination, Employer 

lodged the same challenges, but additionally asserted a “lack of reasonableness and 

necessity for the products billed.” R.R. 36a. 

The hearing requests were consolidated by the Hearing Office. At the 

hearing, Employer stated that the issues were whether Pharmacy was a provider;

whether Pharmacy charged appropriate amounts for the medications; and whether 

Pharmacy may be “tied in with several other pharmacies . . . [a]ll of whom operate 

under another banner, so to speak.” R.R. 45a. 

 

3 Section 306(f.1)(1)(i) of the Act requires an employer to pay for “reasonable surgical and medical 

services, services rendered by physicians or other health care providers. . . medicines and supplies, 

as and when needed.” 77 P.S. §531(1)(i) (emphasis added). Section 306(f.1)(5) of the Act allows 

a “provider who . . . disputes the amount or timeliness of [a] payment from the employer or insurer” 

to file an application for fee review. 77 P.S. §531(5). Section 109 of the Act defines a “[h]ealth 

care provider” as follows:

[A]ny person, corporation, facility or institution licensed or otherwise authorized 

by the Commonwealth to provide health care services, including, but not limited 

to, any physician, coordinated care organization, hospital, health care facility, 

dentist, nurse, optometrist, podiatrist, physical therapist, psychologist, chiropractor 

or pharmacist and an officer, employe or agent of such person acting in the course 

and scope of employment or agency related to health care services.

77 P.S. §29.
4

On May 25, 2017, Employer requested the Hearing Office to issue a 

subpoena directing Pharmacy to provide, among other things, “[a]ll documents 

which show ‘who’ actually prepares the compound creams involved in the present 

dispute/fee review; and if not actually prepared by [Pharmacy], documents relating 

to the entity that actually does produce the compound creams.” Supplemental 

Reproduced Record at 2b. At a June 20, 2017, hearing held on Employer’s subpoena 

request, the parties agreed that the threshold issue was whether Pharmacy was, in 

fact, a provider under this Court’s holding in Selective Insurance Company of 

America v. Bureau of Workers’ Compensation Fee Review Hearing Office (The

Physical Therapy Institute), 86 A.3d 300 (Pa. Cmwlth. 2014).4 On July 24, 2017, 

Employer filed a motion to dismiss its own appeal, arguing that the Hearing Office

lacked jurisdiction.

By decision and order dated November 1, 2017, the Hearing Office 

granted Employer’s motion to dismiss for lack of jurisdiction based on this Court’s 

decision in Selective Insurance. Likewise, the Medical Fee Review Section lacked 

jurisdiction to issue its fee review decisions. Finally, the Hearing Office rejected 

Pharmacy’s waiver argument, noting that under Pittsburgh Moose Lodge #46 v. 

Workmen’s Compensation Appeal Board (Grieco, Jr.), 530 A.2d 982 (Pa. Cmwlth. 

1982), a tribunal’s subject matter jurisdiction may be raised at any time. 

On appeal,5 Pharmacy argues that the Court should reconsider its ruling 

in Selective Insurance because it leaves a provider that renders medical treatment to 

 

4

Selective Insurance was overruled in Armour I.

5 This Court’s scope of review of a decision by the Hearing Office determines whether the 

necessary findings of fact are supported by substantial evidence, whether constitutional rights were 

violated, and whether the hearing officer committed an error of law. 2 Pa. C.S. §704; Walsh v. 
5

a workers’ compensation claimant without recourse whenever an employer refuses 

payment for the stated reason that the provider is not a “provider” within the meaning 

of the Act. Pharmacy suggests that this Court direct the Bureau of Workers’ 

Compensation to promulgate a regulation to create a remedy by which a putative 

provider may obtain a determination of its status. A remedy is necessary because 

otherwise Pharmacy will be deprived of property without due process of law.

The issues presented in this matter are identical to those presented and 

resolved by this Court in the related matter of Armour I. In that case, we held that 

where an employer challenges a fee determination of the Bureau’s Medical Fee 

Review Section for the stated reason that the service was not rendered by a 

“provider” as defined by the Act, this threshold question must be decided by the 

Hearing Office. 

Accordingly, as in Armour I, we reverse the Hearing Office’s 

adjudication and remand the matter for a determination of whether Pharmacy is a 

provider within the meaning of Section 109 of the Act, 77 P.S. §29.

 _____________________________________

 MARY HANNAH LEAVITT, President Judge

 

Bureau of Workers’ Compensation Fee Review Hearing Office (Traveler’s Insurance Co.), 67 

A.3d 117, 120 n.5 (Pa. Cmwlth. 2013). Regarding questions of law, our scope of review is plenary 

and our standard of review is de novo. Sedgwick Claims Management Services, Inc., v. Bureau of 

Workers’ Compensation, Fee Review Hearing Office (Piszel and Bucks County Pain Center), 185 

A.3d 429, 433 n.2 (Pa. Cmwlth. 2018).
 

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Armour Pharmacy, :

Petitioner :

:

v. : No. 1726 C.D. 2017

:

Bureau of Workers’ Compensation :

Fee Review Hearing Office :

(Wegman’s Food Markets, Inc.), :

Respondent :

O R D E R 

AND NOW, this 12th day of April, 2019, the order of the Bureau of the 

Workers’ Compensation Fee Review Hearing Office, dated November 1, 2017, is 

hereby REVERSED and this matter is REMANDED for further proceedings in 

accordance with the attached opinion.

Jurisdiction relinquished. 

 _____________________________________

 MARY HANNAH LEAVITT, President Judge