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 HONO RABLE 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

, F ee 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

medic ations it had dispensed to Kathleen Hackman (Claimant). Employer

chal lenged these fee determinations for the stated reason that Pharmacy was not a
“provider” under the Pennsylvania Workers’ Compensation Act (Act) 1 and, thus, not
entitled to reimbursement. Concluding that the Bureau’s Medical Fee Review

Section lacked juris diction 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 Emp loyer’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 R eview 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. Repro duced Record at 5a (R.R. __). Pharmacy

di spensed the medication to Claimant on two occasi ons and thereafter invoiced
Employer $2,426.11 for each prescription. Employer denied payment on the first

invoice of November 2 2, 2016, for the following reasons :

Charge for pharmaceuticals exceed the fee s established by the fee sc hedule/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 t he second invoice of December 21, 2016,

stating, “Denied: Medical records. Please resubmit with related medi cal records to:
[Employer’s address].” R.R. 23 a.

2 This matter was argued seriately with Armour I

. The two cases were consolidated at the hearing before the hearing officer

. Never theless, the hearing officer i ssued 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 refu sal to pay the two invoices. The

Medical Fee Review Section de termined that the amount of payment owed under the
required “Workers’ Compensation fee calculations” was $ 2,214.76 . R.R. 28a. The

Medical Fee Re view Section directed Employer t o pay Pharmacy $2,214.76, plus

ten percent interest on each invoice.

Employer filed two request s for a hearing to contest the fee review

determination s. As to the first determination, Employer asserted that Pharmacy was
not a “provider ” unde r the Act 3 and that the cost of the compound cream was

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

lodged the same challenges

, but additionally asserted a “ lack of reasonableness and

necess ity for the products bill ed.” 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 ma y be “tied in with several other pharmacies . . . [a]ll of whom operate

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

3 Sec tion 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). Se ction 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,
d entist, 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 O n May 25, 2017, Employer requested the Hearing Office to issue a
subpo ena 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

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

request, the parties agreed that the threshold i ssue 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 H earing O ffice

lacked jurisdiction.

By decision and o rder dated November 1

, 2017, the H earing O ffice

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

decision in Sele ctive 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 Sele ctive 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

prov ider 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 threshol d question must be decided by the

Hearing Office.

According ly , as i n Armour I , we reverse the Hearing Of fice’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 ple nary 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 12 th 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.

J urisdiction relinquished.

_____________________________________ MARY HANNAH LEAVITT, President Judge