IN THE COMMONWEALTH COURT OF PENNSYLVANIA

State Workers’ Insurance Fund, :

Petitioner :

:

v. :

:

Harburg Medical Sales Co., Inc., :

(Bureau of Workers’ Compensation :

Fee Review Hearing Office), : No. 712 C.D. 2021 

Respondent : Argued: June 22, 2022

BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE CHRISTINE FIZZANO CANNON, Judge

HONORABLE ELLEN CEISLER, Judge

HONORABLE LORI A. DUMAS, Judge

OPINION 

BY JUDGE FIZZANO CANNON FILED: December 15, 2022

The State Workers’ Insurance Fund (SWIF) petitions this Court for 

review of the June 3, 2021 decision of the Bureau of Workers’ Compensation,

Medical Fee Review Hearing Office (Hearing Office). The Hearing Office reversed 

a determination by the Bureau of Workers’ Compensation, Medical Fee Review 

Section (Fee Review Section) that SWIF was not liable to provide reimbursement 

for a disputed medical bill. Upon review, we affirm the Hearing Office’s 

determination.

I. Background

In May 2004, Julius Holmes (Claimant) sustained various injuries in a 

work-related incident while in the employ of W&W Contractors, Inc. (Employer). 
2

See W&W Contractors, Inc. v. Workers’ Comp. Appeal Bd. (Holmes) (Pa. Cmwlth., 

No. 836 C.D. 2020, filed Dec. 15, 2020), slip op. at 1-2. Employer issued a notice 

of compensation payable (NCP) accepting various injuries sustained by Claimant to 

his chest, lower back, neck, abdomen, right shoulder, and right knee. Id. at 2. An 

amended NCP expanding the description of Claimant’s injuries was issued in 

October 2007. See Hearing Off. Decision, 6/3/21 at 7, Reproduced Record (R.R.) at 

85a.1

SWIF reimbursed Harburg Medical Sales Company, Inc. (Harburg)

$1,725 for certain medical supplies and equipment prescribed to Claimant, but 

denied payment for a piece of durable medical equipment described as a memory 

foam queen mattress overlay with cover, which was billed at $2,199.95. Hearing 

Off. Decision, 6/3/21 at 4, Finding of Fact (F.F.) 6, R.R. at 82a. SWIF denied 

liability for the prescribed treatment on the basis that “[a] cu[r]rent medical report 

[was] required specifically documenting the relationship [of] the prescribe[d]

medication [i.e., the mattress overlay] to the original accepted work injury.” Letter, 

10/7/20, R.R. at 30a; see also F.F. 10. However, SWIF did not seek utilization 

review concerning the prescribed treatment. F.F. 9.

Harburg submitted an application for fee review pursuant to Section 

306(f.1) of the Act, 77 P.S. § 531, contesting SWIF’s nonpayment for the prescribed 

mattress overlay. Application for Fee Review, 11/12/20 at 1, R.R. at 23a. The Fee 

1

In December 2011, a workers’ compensation judge approved a compromise and release 

agreement settling Claimant’s right to future indemnity benefits for the injuries sustained in the 

May 3, 2004 work incident. See Hearing Off. Decision, 6/3/21 at 4, Finding of Fact (F.F.) 3,

Reproduced Record (R.R.) at 81a. Employer remained liable for Claimant’s reasonable, necessary 

and causally-related medical bills consistent with the cost containment provisions of the Workers’ 

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

(Act). See Section 449 of the Act, 77 P.S. § 1000.5. 
3

Review Section determined that SWIF was not obligated to pay the cost of the 

prescribed treatment because the “service ha[d] not been properly billed.” Fee 

Review Section Determination, 12/10/2020, R.R. at 15a. 

Harburg requested a hearing to contest the Fee Review Section’s 

determination. Request for Hearing, R.R. at 18a. Hearings were held in January and 

March 2021. Hearing Off. Decision, 6/3/21 at 3, R.R. at 81a. 

Harburg submitted a post-hearing brief asserting that SWIF should 

have sought utilization review before withholding payment for the prescribed 

mattress overlay based on a “causal relatedness” denial. See Harburg’s Post-Hearing 

Br. at 4, Certified Record (C.R.) at 65. SWIF argued in its post-hearing brief that it 

was not obligated to request utilization review to “legitimize nonpayment” following 

its “causal relatedness” denial. SWIF’s Post-Hearing Br. at 6, C.R. at 72. Further, 

SWIF asserted that the Hearing Office lacked jurisdiction over Harburg’s fee review 

application because SWIF’s liability for Claimant’s treatment was in dispute, rather 

than the timeliness or amount of any payment. Id. at 7, C.R. at 71.

The Hearing Office reversed the Fee Review Section’s decision and 

ordered SWIF to reimburse Harburg for the cost of the prescribed mattress overlay. 

Hearing Off. Decision, 6/3/21 at 10, R.R. at 88a. The Hearing Office identified the 

issue under review as whether, in a medical fee review proceeding, an insurer may 

refuse to pay for prescribed durable medical equipment by asserting it was 

“unrelated” to the work injury, without seeking utilization review.2 Id. at 6, R.R. at 

84a. The Hearing Office reasoned that Workers’ Compensation Regulation (WC 

2 The Hearing Office also considered the issue of whether a designation in a determination 

by the Fee Review Section that the service “was not billed properly” supports the denial of an 

otherwise apparently valid prescription for medical treatment, supplies or equipment. Hearing 

Off. Decision, 6/3/21 at 6, R.R. at 84a. However, SWIF does not raise that issue on appeal.
4

Regulation) 127.208(e) is “clear and unequivocal that seeking [u]tilization [r]eview, 

within 30 days of receipt of the billing, is a condition precedent to withholding 

payment.” Id. at 6, R.R. at 84a (citing 34 Pa. Code § 127.208).3 Thus, the Hearing 

Office determined that SWIF could not deny reimbursement for the prescribed 

mattress overlay without first challenging the reasonableness and necessity thereof 

through utilization review. See id. at 6-9, R.R. at 84a-87a (first citing Workers’ First 

Pharmacy Servs., LLC v. Bureau of Workers’ Comp. Fee Rev. Hearing Off.

(Gallagher Bassett Servs.), 225 A.3d 613 (Pa. Cmwlth. 2020); and then citing Omni 

Pharmacy Servs., LLC v. Bureau of Workers’ Comp. Fee Rev. Hearing Off. (Am. 

Interstate Ins. Co.), 241 A.3d 1273, 1274 (Pa. Cmwlth. 2020), appeal denied, 257 

A.3d 1212 (Pa. 2021)).

SWIF petitioned this Court for review.

4

3 Pursuant to Workers’ Compensation Regulation (WC Regulation) 127.208(e),

[t]he 30-day period in which payment shall be made to the provider 

may be tolled only if review of the reasonableness or necessity of 

the treatment is requested during the 30-day period under the 

[utilization review] provisions of Subchapter C (relating to medical 

treatment review). The insurer’s right to suspend payment shall 

continue throughout the [utilization review] process. The insurer’s 

right to suspend payment shall further continue beyond the 

[utilization review] process to a proceeding before a workers’

compensation judge, unless there is a [utilization review]

determination made that the treatment is reasonable and necessary.

34 Pa. Code § 127.208(e).

4 SWIF filed an application for supersedeas, averring that it possessed a great likelihood of 

success on the merits. See Appl. for Supersedeas, 6/30/21 at 4, ¶ 8. This Court denied SWIF’s

application by order dated August 5, 2021. See Cmwlth. Ct. Order, 8/5/21.
5

II. Issues

On appeal,

5 SWIF argues that this Court already determined in a 

separate matter that Harburg does not qualify as a “health care provider” under the 

Act and, thus, lacks standing to request fee review. SWIF’s Br. at 20-22 (citing 

Harburg Med. Sales Co. v. PMA Mgmt. Corp. (Bureau of Workers’ Comp., Fee Rev. 

Hearing Off.) (Pa. Cmwlth., No. 635 C.D. 2020, filed Aug. 30, 2021) (Harburg I), 

appeal denied (Pa., No. 537 MAL 2021, filed Mar. 31, 2022)). SWIF asserts that 

the doctrine of collateral estoppel precludes Harburg from asserting standing here to 

request a fee review under the Act. SWIF also contends that the Hearing Office erred 

in deeming SWIF liable for payment of the prescribed mattress overlay, because its

“causal relatedness” denial rendered Harburg’s fee review application premature by

operating as a denial of liability for the work injury pursuant to subsection (1) of WC 

Regulation 127.255(1), 34 Pa. Code § 127.255(1). SWIF’s Br. at 9. 

Harburg counters that SWIF waived its challenge to Harburg’s standing 

to file the fee review application, by raising this issue for the first time in its principal 

appellate brief. See Harburg’s Br. at 10. Harburg also asserts that an employer or 

insurer must pursue utilization review before denying reimbursement on the basis 

that the prescribed medical equipment or treatment lacks a causal relation to the 

claimant’s work injury. Harburg’s Br. at 6 (citing Workers’ First; Omni). Further, 

Harburg contends that allowing a “causal relatedness” denial alone to support 

nonpayment of a provider’s bill absent utilization review would enable insurers to

curtail the fee review process entirely, thereby depriving providers of recourse for

5 Our review in medical fee review cases determines whether constitutional rights were 

violated, whether an error of law was committed, or whether the necessary findings of fact were 

supported by substantial evidence. Workers’ First Pharmacy Servs., LLC v. Bureau of Workers’ 

Comp. Fee Rev. Hearing Office (Gallagher Bassett Servs.), 225 A.3d 613, 616 n.3 (Pa. Cmwlth. 

2020). Regarding questions of law, our scope of review is plenary and our standard of review is 

de novo. Id.
6

denials of reimbursement. Id. at 6-7. In addition, Harburg maintains that SWIF 

offered no medical evidence to support its contention that the prescribed mattress 

overlay was not related to Claimant’s work injury. Id. at 6. 

By order dated January 31, 2022, this Court directed the parties to 

submit supplemental briefs addressing the impact of the Pennsylvania Supreme 

Court’s decision in Keystone Rx LLC v. Bureau of Workers’ Compensation Fee 

Review Hearing Off. (Compservices Inc./AmeriHealth Casualty Services), 265 A.3d 

322 (Pa. 2021), on the present matter. See Cmwlth. Ct. Order, 1/31/22. Specifically, 

this Court instructed the parties to address whether a fee review petition may be 

dismissed as premature where payment for treatment prescribed for a work injury is 

denied on the basis of lack of “causal relation” when (1) the work injury is accepted, 

(2) no utilization review petition has been filed, and (3) payment has not been made 

within the statutory period. See id. SWIF contends that Keystone Rx supports its 

assertion that a “causal relatedness” dispute must be resolved before a provider may 

apply for fee review under the Act. See SWIF’s Suppl. Br. at 5. Harburg counters 

that Keystone Rx is inapposite, as it involved an insurer’s petition for utilization 

review, whereas, here, SWIF did not seek utilization review. Harburg’s Suppl. Br. 

at 6. Thus, Harburg maintains that Keystone Rx does not affect its position that 

SWIF should have petitioned for utilization review in order to render Harburg’s fee 

review application premature. Id. at 6-7 (citing Workers’ First; Omni).

III. Discussion

A. Standing

SWIF asserted for the first time in its principal appellate brief that 

Harburg lacked standing to file the November 2020 fee review application. Section 
7

703(a) of the Administrative Agency Law provides that a “party may not raise upon 

appeal any other question not raised before the agency (notwithstanding the fact that 

the agency may not be competent to resolve such question) unless allowed by the 

court upon due cause shown.” 2 Pa.C.S. § 703(a). Thus, we agree with Harburg 

that SWIF waived this challenge. See Lord v. Workmen’s Comp. Appeal Bd., 395 

A.2d 598, 602 (Pa. Cmwlth. 1978) (concluding that “this Court [was] not obliged to 

address” arguments of employer and its insurance carrier “which were not raised 

before the [Workers’ Compensation Appeal Board]”). Moreover, “[u]nlike the 

federal courts, where standing is a nonwaivable jurisdictional issue, the courts of this 

Commonwealth view the issue of standing as nonjurisdictional and waivable.” In re

Condemnation by Urban Redevelopment Auth. of Pittsburgh, 913 A.2d 178, 181 n.6 

(Pa. 2006).

We acknowledge that the Harburg I decision relied upon by SWIF to 

support its challenge to Harburg’s standing was issued on August 30, 2021, roughly 

two months after SWIF filed its petition for review with this Court on June 29, 2021. 

Nevertheless, SWIF could and should have challenged Harburg’s standing to apply 

for fee review during the administrative proceedings, as any question regarding

Harburg’s standing as a “provider” was evident from the plain language of the Act. 

See Section 306(f.1) of the Act, 77 P.S. § 531(5) (stating that “[a] provider . . . who 

disputes the amount or timeliness of the payment from the employer or insurer shall 

file an application for fee review . . .”) (emphasis added); see also Section 109 of the 

Act, 77 P.S. § 29 (stating that the term “‘provider’ means a health care provider” and 

defining the term “health care provider” as a person or entity “licensed or otherwise 

authorized by the Commonwealth to provide health care services, including, but not 
8

limited to, any physician, coordinated care organization,[6] hospital, health care 

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

chiropractor or pharmacist . . .”). Thus, SWIF is unable to establish that it had due 

cause for its failure to raise the issue of standing during the administrative

proceedings below or that it could not, by the exercise of due diligence, have raised 

that issue at an earlier stage. See 2 Pa.C.S. § 703(a); Hugh H. Eby Co. v. Workmen’s 

Comp. Appeal Bd. (Vadi), 407 A.2d 148, 150 (Pa. Cmwlth. 1979) (stating that 

“[q]uestions not raised below before the governmental unit or Commonwealth 

agency will not be considered for the first time by this Court unless due cause is 

shown”); see also Pa.R.A.P. 1551 (providing that “[o]nly questions raised before the 

government unit shall be heard or considered, except . . . [q]uestions that the [C]ourt 

is satisfied the petitioner could not by the exercise of due diligence have raised 

before the government unit”).

SWIF also attempts to invoke the doctrine of nonmutual offensive 

collateral estoppel to establish that Harburg lacked standing to apply for fee review, 

because: (i) both Harburg I and the instant matter involve the question of Harburg’s 

standing, (ii) the determination of whether Harburg was a provider under the Act 

was essential to the judgment in Harburg I; and (iii) Harburg I resulted in a final 

judgment on the merits. SWIF’s Br. at 20-22 (citing Pucci v. Workers’ Comp.

Appeal Bd. (Woodville State Hosp.), 707 A.2d 646, 647-48 (Pa. Cmwlth. 1998)). 

However, as with its initial challenge to standing, SWIF has raised this issue for the 

first time in its principal appellate brief. Accordingly, SWIF has likewise waived 

its assertion that collateral estoppel precludes relitigating whether Harburg 

6 Section 109 of the Act defines the term “coordinated care organization” to mean “an 

organization licensed in Pennsylvania and certified by the Secretary of Labor and Industry on the 

basis of established criteria possessing the capacity to provide medical services to an injured 

worker.” 77 P.S. § 29. 
9

possessed standing to apply for fee review. See Section 703(a) of the Administrative 

Agency Law, 2 Pa.C.S. § 703(a); Pa.R.A.P. 1551; Hugh H. Eby Co., 407 A.2d at 

150.

B. Harburg’s Fee Review Application

SWIF maintains that it was not required to pursue utilization review 

before denying reimbursement on the basis that the prescribed mattress overlay was 

not related to Claimant’s work injury, because the utilization review process may 

not decide questions of “causal relatedness.” SWIF’s Br. at 10 (citing WC Regul. 

127.406(b)(1), 34 Pa. Code § 127.406(b)(1) (providing that utilization review 

organizations may not decide “[t]he causal relationship of the treatment under 

review and the employe’s work-related injury”)); WC Regul. 127.470, 34 Pa. Code 

§ 127.470 (stating that physician-peers conducting utilization review “shall assume 

the existence of a causal relationship between the treatment under review and the 

employe’s work injury”). SWIF also argues that WC Regulation 127.255, 34 Pa. 

Code § 127.255, “expressly” renders the fee review process premature where the 

carrier denies payment on the basis of lack of “causal relatedness.” Id. at 13. 

Asserting that the Hearing Office erred in relying on Workers’ First and 

Omni to conclude that SWIF was obligated to pursue utilization review before 

withholding payment, SWIF insists that “[those cases] have wrongfully eroded the

ability of insurance carriers to ‘[deny] liability for the alleged work injury,’ contrary 

to 34 Pa. Code § 127.255 and the Pennsylvania Supreme Court’s decision in Crozer 

Chester [Medical Center v. Department of Labor and Industry, Bureau of Workers’ 

Compensation, Health Care Services Review Division, 22 A.3d 189 (Pa. 2011) 

(Crozer Chester II)].” SWIF’s Br. at 12 & 18 (quoting WC Regulation 127.255(1), 
10

34 Pa. Code § 127.255(1)). SWIF contends that “[i]t is a well-established practice 

of insurance carriers to respond to non-work-related bills by issuing a simple and 

efficient denial letter,” and that a claimant may pursue recourse by filing a claim 

petition, review petition, or penalty petition. SWIF’s Br. at 18. SWIF highlights the 

statement of the Pennsylvania Supreme Court in Crozer Chester II that “in cases in 

which liability for a particular treatment is at issue, the claimant, not the medical 

provider, must pursue compensation before a workers’ compensation judge in the 

regular course.” Id. at 12-13 (quoting Crozer Chester II, 22 A.3d at 195). SWIF 

reasons further:

Importantly, [WC Regulation 127.255] places no 

affirmative obligation on the insurer to initiate a formal 

proceeding to “den[y] liability for the alleged work injury” 

such as by filing a [utilization review p]etition. By contrast,

127.255(2) states that a [f]ee [r]eview [a]pplication is 

premature where “the insurer has filed a request for 

utilization review of the treatment.” . . . If the 

administrative agency had intended to require insurance 

carriers to file a formal petition to deny liability [for the 

work injury for purposes of WC Regulation 127.255(1)], 

it clearly could have and would have included language to 

that effect in the regulation. As a result, a usual and 

customary practice has developed where carriers may 

simply issue a one sentence letter denying payment based 

on lack of causal relatedness, rather than initiate costly and 

protracted litigation over relatively nominal medical bills. 

SWIF’s Br. at 9 n.1. SWIF, therefore, requests that this Court reverse the Hearing 

Office’s June 3, 2021 decision and dismiss Harburg’s fee review application. Id. at 

24.7

7 SWIF observes that the Hearing Office’s decision “contains no reference to 34 Pa. Code 

§ 127.255[.]” SWIF’s Br. at 13. While SWIF is correct that the June 3, 2021 decision does not 

directly reference WC Regulation 127.255, we note that the Hearing Office cited Workers’ First 

and Omni, which, in turn, relied primarily on this regulation. Further, we note that the Hearing 
11

Despite contending that its “causal relatedness” denial constituted a denial 

of liability for Claimant’s work injury pursuant to subsection (1) of WC Regulation 

127.255, SWIF inconsistently asserts that the present “dispute . . . turns solely on [] 

Employer’s liability for a particular medical treatment,” thereby implicating 

subsection (2) of that regulation. See SWIF’s Br. at 19-20 (emphasis added). 

Section 306(f.1) of the Act provides, in relevant part:

(5) The employer or insurer shall make payment and 

providers shall submit bills and records in accordance with 

the provisions of this section. All payments to providers 

for treatment provided pursuant to this act shall be made 

within thirty (30) days of receipt of such bills and records 

unless the employer or insurer disputes the reasonableness 

or necessity of the treatment provided pursuant to 

paragraph (6). The nonpayment to providers within thirty 

(30) days for treatment for which a bill and records have 

been submitted shall only apply to that particular treatment 

or portion thereof in dispute; payment must be made 

timely for any treatment or portion thereof not in dispute. 

A provider who has submitted the reports and bills 

required by this section and who disputes the amount or 

timeliness of the payment from the employer or insurer 

shall file an application for fee review with the 

[D]epartment no more than thirty (30) days following 

notification of a disputed treatment or ninety (90) days 

following the original billing date of treatment. If the 

insurer disputes the reasonableness and necessity of the 

treatment pursuant to paragraph (6) [(delineating the 

Office had no reason to cite this regulation, because the Fee Review Section did not dismiss 

Harburg’s fee review application as premature. See Hearing Off. Decision, 6/3/21 at 6, R.R. at 

84a. Moreover, the Hearing Office did not identify the question of whether Harburg’s fee review 

application was premature as one of the two issues under review. See Hearing Off. Decision, 

6/3/21 at 6, R.R. at 84a. See id.

Notably, SWIF quoted WC Regulation 127.255 in its post-hearing brief submitted to the 

Hearing Office but did not specifically assert that Harburg’s fee review application was premature 

under subsection (1) (fee review application premature where insurer disputes liability for work 

injury). Rather, SWIF contended that the Hearing Office lacked jurisdiction, because neither the 

timeliness nor the amount of payment was in dispute. Nevertheless, we conclude that this issue is 

not waived. See discussion infra, pages 13-16. 
12

utilization review process)], the period for filing an 

application for fee review shall be tolled as long as the 

insurer has the right to suspend payment to the provider 

pursuant to the provisions of this paragraph. Within thirty 

(30) days of the filing of such an application, the 

[D]epartment shall render an administrative decision.

(6) Except in those cases in which a workers’ 

compensation judge asks for an opinion from peer review 

under section 420, disputes as to reasonableness or 

necessity of treatment by a health care provider shall be 

resolved in accordance with the following provisions:

(i) The reasonableness or necessity of all treatment 

provided by a health care provider under this act 

may be subject to prospective, concurrent or 

retrospective utilization review at the request of an 

employe, employer or insurer. The [D]epartment 

shall authorize utilization review organizations to 

perform utilization review under this act. 

Utilization review of all treatment rendered by a 

health care provider shall be performed by a 

provider licensed in the same profession and having 

the same or similar specialty as that of the provider 

of the treatment under review. 

77 P.S. § 531(5), (6)(i).

We agree with the Hearing Office that SWIF failed to stay its obligation

to reimburse Harburg for the cost of the prescribed mattress overlay. Pursuant to 

WC Regulation 127.208(e),

[t]he 30-day period in which payment shall be made to 

the provider may be tolled only if review of the 

reasonableness or necessity of the treatment is requested 

during the 30-day period under the [utilization review 

(UR)] provisions of Subchapter C (relating to medical 

treatment review). The insurer’s right to suspend payment 

shall continue throughout the [utilization review] process. 

The insurer’s right to suspend payment shall further 

continue beyond the [utilization review] process to a 

proceeding before a workers’ compensation judge, unless 
13

there is a [utilization review] determination made that the 

treatment is reasonable and necessary.

34 Pa. Code § 127.208(e). Here, SWIF did not request utilization review. F.F. 9. 

Thus, SWIF failed to toll the 30-day period in which to remit payment for the billed

durable medical equipment. See WC Regul. 127.208, 34 Pa. Code § 127.208.

Nevertheless, SWIF maintains that the Hearing Office should have 

determined that SWIF was not liable for payment on the basis that its “causal 

relatedness” denial constituted a denial of liability for Claimant’s work injury under 

WC Regulation 127.255(1), 34 Pa. Code § 127.255(1), rendering Harburg’s fee 

review application premature. SWIF asserts that this regulation “expressly” renders 

the fee review process premature where the carrier denies payment on the basis of 

lack of “causal relatedness.” Id. at 13. We observe that SWIF raises this issue for 

the first time on appeal. However, we conclude that SWIF has not waived this 

contention, because whether Harburg prematurely filed its fee review application 

implicates the doctrine of ripeness, which we may consider sua sponte. As our 

Supreme Court has explained,

[t]he doctrine of ripeness . . . is a judicially-created 

principle which mandates the presence of an actual 

controversy. When determining whether a matter 

is ripe for judicial review, courts generally consider 

whether the issues are adequately developed and the 

hardships that the parties will suffer if review is 

delayed. In the context of administrative law, the basic 

rationale of ripeness is to prevent the courts, through the 

avoidance of premature adjudication, from entangling 

themselves in abstract disagreements over administrative 

policies, and to protect state agencies from judicial 

interference until an administrative decision has been 

formalized and its efforts felt in a concrete way by the 

challenging parties. Gardner v. Dep’t of Env’t Res., 658 

A.2d 440, 444 (Pa. Cmwlth.1995) (citing Abbott Labs. v.

Gardner, 387 U.S. 136, 148-49 . . . (1967)).
14

Bayada Nurses, Inc. v. Dep’t of Labor & Indus., 8 A.3d 866, 874-75 (Pa. 2010) 

(quotation marks and citation omitted); see also Texas Keystone Inc. v. Pa. Dep’t of 

Conserv. & Nat. Res., 851 A.2d 228, 239 (Pa. Cmwlth. 2004) (“The ripeness 

doctrine insists on a more concrete context, i.e., one involving a final agency action 

and a factual record that would allow this Court to properly review [the] substantive 

claims.”). Here, SWIF’s assertion that Harburg prematurely filed its fee review 

application implicates the doctrine of ripeness, because a prematurely filed fee 

review application denies the Fee Review Section and, ultimately, this Court, a 

“concrete” decision. For instance, assuming SWIF’s assertions are correct, the 

Hearing Office’s fee review determination in Harburg’s favor could be undermined 

by a subsequent finding either that the underlying injury was not work related or that 

the billed treatment was not reasonable or necessary. See WC Regul. 127.255, 34 

Pa. Code § 127.255. Further, this question involves the subject matter jurisdiction 

of the Hearing Office and, in turn, this Court. We explained previously:

Whether the lack of ripeness goes to our subject matter 

jurisdiction is determined by whether it involves both this 

court’s and the [lower tribunal’s] power to hear the class 

of cases to which the case belongs, as well as to enter upon 

the inquiry, not whether or not the court may ultimately 

grant the relief requested. Commonwealth v. Court of

Common Pleas of [Phila. Cnty.] . . . 485 A.2d 755 ([Pa.] 

1984). . . . [W]e do not have the ability to grant any relief 

that is merely advisory, one that does not involve any case 

or controversy. . . . 

When the matter does not present a case or controversy, 

the courts have consistently held that they were without 

jurisdiction to hear the matter. 

Brown v. Pa. Liquor Control Bd., 673 A.2d 21, 23 (Pa. Cmwlth. 1996). 
15

SWIF asserts that the Hearing Office should have dismissed Harburg’s 

fee review application as premature on the basis that SWIF’s dispute as to liability 

for the underlying work injury remained outstanding. “Whether the time is right to 

adjudicate a claim is an issue that the Pennsylvania courts consider.” Phila. Entm’t

& Dev. Partners, L.P. v. City of Philadelphia, 937 A.2d 385, 392 (Pa. 2007) 

(explaining “that while subject matter jurisdiction concerns the power of a court to 

hear a claim, the doctrine of ripeness concerns the timing of a court[’s] intervention 

in litigation”). SWIF’s assertion that Harburg’s fee review application was 

premature calls into question the timing of the Hearing Office’s decision. See id. 

Thus, SWIF’s contention that Harburg prematurely filed its fee review application

questions the ripeness of the fee review dispute. As this issue pertains to the subject

matter jurisdiction of the Hearing Office and, subsequently, this Court on appeal, we 

may consider this question sua sponte despite SWIF’s failure to raise it properly.

See Brown, 673 A.2d at 23 (stating that “[b]ecause whether there [was] a case or 

controversy [went] to our subject matter jurisdiction, we [were obliged to] determine 

if the declaration of the statutory limits of commonwealth parties where there [was]

no judgment [was a] case or controversy and ripe for judicial determination”); see 

also Texas Keystone Inc., 851 A.2d at 239 (considering question of ripeness despite 

omission from preliminary objections and explaining that “since lack of ripeness 

goes to our subject matter jurisdiction, we may raise the issue sua sponte”); Ginter 

v. Workers’ Comp. Appeal Bd. (Chili’s Grill & Bar) (Pa. Cmwlth., No. 1330 C.D. 

2010, filed Dec. 8, 2011), slip op. at 1 & 4-5

8

(dismissing claimant’s appeal as 

premature on the basis that the matter was not ripe, where claimant’s challenge to 

an order of the Workers’ Compensation Appeal Board directing him to submit to an 

8 This unreported decision is cited as persuasive authority pursuant to Section 414(a) of 

this Court’s Internal Operating Procedures. 210 Pa. Code § 69.414(a).
16

impairment rating evaluation (IRE) on the basis that the IRE process was 

unconstitutional did not constitute a justiciable controversy) (citing Texas Keystone). 

Turning to the merits, we reject SWIF’s assertion that WC Regulation 

127.255, 34 Pa. Code § 127.255, “expressly” requires dismissal of Harburg’s fee 

review application as premature on the basis of SWIF’s “causal relatedness” denial. 

SWIF’s Br. at 13. WC Regulation 127.255 contains no such requirement, either 

express or implied. This regulation merely mandates:

The Bureau [of Workers’ Compensation] will return 

applications for fee review prematurely filed by providers 

when one of the following exists:

(1) The insurer denies liability for the alleged work injury.

(2) The insurer has filed a request for utilization review of 

the treatment under Subchapter C (relating to medical 

treatment review).

(3) The 30-day period allowed for payment has not yet 

elapsed . . . .

34 Pa. Code § 127.255. None of the three prerequisites for deeming a fee review 

application premature has been met here. See id. 

SWIF’s assertion that its “causal relatedness” denial in fact contested

liability for Claimant’s work injury under subsection (1) of the above cited 

regulation lacks merit, because SWIF accepted liability for Claimant’s work injury 

by means of an NCP. See W&W Contractors, slip op. at 2; see also Beissel v. 

Workmen’s Comp. Appeal Bd. (John Wanamaker, Inc.), 465 A.2d 969, 971-72 (Pa. 

1983) (holding that an employer that has admitted liability for a work-related injury 

by means of an NCP after having full opportunity to investigate the claim may not 

subsequently challenge causation of injury absent evidence that the NCP is 

materially incorrect); Mahon v. Workers’ Comp. Appeal Bd. (Expert Window 
17

Cleaning), 835 A.2d 420, 426 (Pa. Cmwlth. 2003) (“[A]n insurer may have an initial 

belief as to the right of a claimant to benefits, thus supporting a decision not to issue 

a notice of temporary compensation payable, and then . . . challenge the notice of 

compensation payable because of information received after that issuance.”) (citing 

Section 413 of the Act, 77 P.S. § 771).9 Rather, SWIF’s assertion that the prescribed 

treatment is not causally related to Claimant’s work injury disputes liability for the 

treatment. 

However, SWIF’s denial alone does not render Harburg’s fee review 

application premature, because SWIF has not “filed a request for utilization review 

of the treatment[.]” WC Regul. 127.255, 35 Pa. Code § 127.255. This Court 

explained in Workers’ First:

Had [e]mployer sought utilization review, its 30-day 

deadline to pay [p]harmacy’s invoice would have been 

stayed. Claimant may be under treatment for an array of 

medical problems, only some of which relate to the work 

9 Pursuant to Section 413 of the Act, 

[a] workers’ compensation judge may, at any time, review and 

modify or set aside a notice of compensation payable and an original 

or supplemental agreement or upon petition filed by either party 

with the [D]epartment, or in the course of the proceedings under any 

petition pending before such workers’ compensation judge, if it be 

proved that such notice of compensation payable or agreement was 

in any material respect incorrect.

77 P.S. § 771. Further, Section 413(a) of the Act provides that 

[a] workers’ compensation judge designated by the [D]epartment 

may, at any time, modify, reinstate, suspend, or terminate a notice 

of compensation payable, an original or supplemental agreement or 

an award of the [D]epartment or its workers’ compensation judge, 

upon petition filed by either party with the [D]epartment, upon proof 

that the disability of an injured employe has increased, decreased, 

recurred, or has temporarily or finally ceased, or that the status of 

any dependent has changed.

77 P.S. § 772.
18

injury. It is for the Utilization Review Organization to 

sort this out. If the compound cream was prescribed for 

a non-work-related injury of [c]laimant, a fortiori it is 

not reasonable or necessary for treatment of her accepted 

work injury. [The e]mployer’s stated reason for denying

[p]harmacy’s invoice was that the “diagnosis is 

inconsistent with the procedure.” . . . This is just another 

way of stating that the compound cream was not a 

reasonable or necessary “procedure” for treating 

Claimant’s “diagnosis,” i.e., a shoulder sprain.

An application for fee review is deemed premature in 

three circumstances: (1) where the insurer denies 

liability for the alleged work injury; (2) where the 

insurer has filed a request for utilization review; or (3) 

where the 30-day period insurer is allowed for payment 

of a provider’s invoice has not yet elapsed. 34 Pa. Code 

§ 127.255. Here, the Hearing Office concluded that 

[p]harmacy’s fee review was premature because [the 

e]mployer denied that the compound cream was related 

to [c]laimant’s accepted work injury. The Hearing 

Office erred because [the e]mployer’s non[]payment did 

not fit any of the exceptions to the rule that an employer 

must pay an invoice within 30 days. See 34 Pa. Code § 

127.255. [The e]mployer did not file a modification 

petition to revise [c]laimant’s accepted work injury and 

did not seek utilization review. [The e]mployer expressly 

accepted liability for [c]laimant’s work injury in the nature 

of a right shoulder strain both in the [notice of temporary 

compensation payable] and in the [compromise and 

release a]greement.

[The e]mployer contends that the compound cream was 

not related to the accepted work injury, i.e., a shoulder 

sprain. It argues that its liability for this treatment must be 

established in a claim petition proceeding. We disagree. 

The work injury has been accepted, and the sole question 

is whether the compound cream was reasonable and 
19

necessary for treatment of the accepted work injury. This 

is an issue for utilization review.

We hold that [the e]mployer was obligated to seek 

utilization review upon receipt of [the p]harmacy’s 

invoice. 

Workers’ First, 225 A.3d at 620-21 (emphasis added) (footnotes omitted). 

Similarly, in Omni, we held that in denying pharmacy payment for treatment on the 

basis of the “issue of causation” between claimant’s work injury and the prescribed 

compound cream, “[e]mployer [was] challenging whether the compound cream 

prescribed to [c]laimant constituted reasonable and necessary treatment for the 

accepted work injury,” a question reserved for the utilization review process. Omni, 

241 A.3d at 1275 & 1278 (citing Workers’ First, 225 A.3d at 621). 

Likewise, here, SWIF was obligated to seek utilization review to 

dispute liability for Claimant’s treatment in order to render Harburg’s fee review 

application premature, because SWIF’s “defense” that the prescribed mattress 

overlay was not related to Claimant’s work injury was “just another way of stating 

that [it] was not a reasonable or necessary ‘procedure’ for treating Claimant’s 

‘diagnosis[.]’” Workers’ First, 225 A.3d at 620-21; see also Omni, 241 A.3d at 1275 

& 1278.10

We acknowledge that, in a footnote in Crozer Chester II, the 

Pennsylvania Supreme Court suggested that WC Regulation 127.255(1), 34 Pa. 

10 We clarify that Workers’ First and Omni do not stand for the proposition that liability 

for a claimant’s prescribed treatment may only be disputed through the utilization review process. 

An employer may also petition for review of medical treatment to challenge the causal relation 

between the prescribed treatment and the claimant’s work injury. See CVA, Inc. v. Workers’ Comp. 

Appeal Bd. (Riley), 29 A.3d 1224, 1229 (Pa. Cmwlth. 2011). Rather, the import of Workers’ First 

and Omni is that where an employer or insurer also seeks to render a provider’s fee review 

application premature, a dispute regarding the causal connection between the prescribed treatment 

and the underlying work injury must be reframed as a challenge to the reasonableness and necessity 

of the treatment through the utilization review process. See Omni, 241 A.3d at 1275 & 1278 (citing 
20

Code § 127.255(1), might be susceptible to a reading that would allow disputes 

regarding liability for the prescribed treatment, in addition to denials of liability for 

the alleged work injury, to serve as bases for deeming fee applications prematurely 

filed. See Crozer Chester II, 22 A.3d at 194 n.5. The Supreme Court observed:

We recognize that the language of Regulation 127.255(1) 

[regarding when a fee review application shall be deemed 

prematurely filed] appears to contain a latent ambiguity 

insofar as it refers to the insurer denying “liability for the 

alleged work injury.” See 34 Pa. Code § 127.255. Indeed, 

Section 306(f.1)(5) of the Act, which the regulation 

addresses, indicates that it is sufficient if the insurer denies 

liability for a “particular treatment,” as explained 

further infra. See 77 P.S. § 531(5); 77 P.S. § 991(a)(v) 

(Department [of Labor and Industry (Department)] to 

promulgate regulations “reasonably calculated to . . . 

explain and enforce the provisions of th[e] [A]ct”). In this 

case, the Department is interpreting the Regulation 

consistently with the Act, as required, and there is no issue 

before us regarding the overall validity of Regulation 

127.255(1) in light of the latent ambiguity. See 77 P.S. 

§ 991(a) (Department to promulgate regulations “consistent 

with th[e] [A]ct”).

Crozer Chester II, 22 A.3d at 194 n.5. 

However, the outcome of Crozer Chester II does not apply here. That 

case involved a provider’s petition for review in mandamus seeking to compel the 

Department to decide the merits of a fee review application that had been rejected 

as premature. See id. at 7, R.R. at 85a. The Pennsylvania Supreme Court affirmed 

Workers’ First, 225 A.3d at 621 (citing WC Regul. 127.255, 34 Pa. Code § 127.255)); see also 

WC Regul. 127.406(a), (b), 34 Pa. Code § 127.406(a), (b) (“[Utilization Review Organizations] 

shall decide only the reasonableness or necessity of the treatment under review” and “may not 

decide . . . [t]he causal relationship between the treatment under review and the employe’s workrelated injury”); WC Regul. 127.470(a), (b), 34 Pa. Code § 127.470(a), (b) (“[Utilization Review] 

Reviewers shall assume the existence of a causal relationship between the treatment under review 

and the employe’s work-related injury”).
21

this Court’s decision sustaining the Department’s preliminary objection on the basis 

that provider failed to plead a legally cognizable claim in mandamus, where the 

provider failed to establish a clear right to relief and sought to compel the 

Department to perform a discretionary act. See id. at 192. By contrast, here, the 

issue is whether the Hearing Office erred in concluding that SWIF was obligated to

seek utilization review before denying payment for the prescribed mattress overlay 

on the basis that it was not related to Claimant’s work injury, not whether either 

party impermissibly sought to compel the exercise of agency discretion.

Likewise, the footnote from Crozer Chester II quoted above does not 

govern the present dispute. We construe the Court’s reference to a “latent 

ambiguity” between subsections (1) and (2) of WC Regulation 127.255, 34 Pa. Code 

§ 127.255, as pertaining to circumstances where, for instance, an employer has 

denied liability for the injury early on and although that denial may be the subject of 

claim petition litigation, the employer is not yet responsible for medical bills. Thus, 

an employer or insurer would be denying liability for both the work injury and any 

billed treatment pending resolution of a claim petition, apparently implicating both 

subsections (1) and (2) of the above-cited regulation to render fee review 

premature.

11

 See id.; Armour Pharmacy v. Bureau of Workers’ Comp. Fee Rev. 

Hearing Office (Wegman’s Food Mkts., Inc.), 206 A.3d 660, 665-66 (Pa. Cmwlth. 

2019) (stating that “[i]n short, an employer’s liability for a claimant’s work injury 

must be established before the fee review provisions can come into play.”). This 

perceived ambiguity does not exist here where, despite SWIF’s post hoc position 

that it has, in fact, challenged liability for the injury, it has not petitioned to set aside 

the NCP it issued accepting liability for the injury.

11 In that instance, the medical provider assumes the risk that the claimant’s claim petition 

may be unsuccessful and the provider may not be paid for treatment.
22

Moreover, as footnote 5 of Crozer Chester II points out, Section 

306(f.1)(5) specifically provides that an insurer’s dispute regarding a “particular 

treatment” may suspend the 30-day payment period. See Section 306(f.1)(5) of the 

Act, 77 P.S. § 531(5). Critically, this portion of Section 306(f.1)(5) does not pertain 

to instances where the employer has denied liability for the injury. It governs 

challenges raised through the utilization review process, which can only arise after 

the employer has accepted liability for the underlying injury. See id. (providing that 

employer or insurer shall make payment for treatment provided pursuant to the Act 

“unless the employer or insurer disputes the reasonableness or necessity of the 

treatment provided [through the utilization review process] pursuant to paragraph 

(6)”) (emphasis added). Expanding WC Regulation 127.255(1) by incorporating 

utilization review provisions (the subject of subsection 2) would render meaningless 

any distinction between subsection (1) (denial of liability for alleged work injury) 

and subsection (2) (treatment disputed through utilization review), as both bases for 

deeming a fee application premature would then include denials of liability for 

treatment pursued through the utilization review process.12

We also agree with Harburg that Keystone Rx does not preclude 

affirmance of the Hearing Office’s June 3, 2021 decision. In Keystone Rx, the 

Pennsylvania Supreme Court held that “the Act makes clear that a non-treating 

12 We further note that footnote 5 of Crozer Chester II constitutes non-binding dictum. See 

In re L.J., 79 A.3d 1073, 1081 (Pa. 2013) (holding that a footnote in a separate case constituted 

“non-binding dict[um]” to which “stare decisis did not apply,” where “the passage was not 

necessary to the outcome of the case” and “the majority . . . simply volunteered the discussion” 

when “the issue was not litigated by the parties”). Moreover, the “latent ambiguity” referenced by

the Court in that footnote is not of concern here as Employer issued an NCP that remains open, 

thereby foreclosing SWIF’s ability to render fee review premature by means of WC Regulation 

127.255(1), 34 Pa. Code § 127.255(1), absent some further action by Employer to rescind, amend,

or terminate the NCP. See Beissel, 465 A.2d 969 at 971-72; Mahon, 835 A.2d at 426. Thus, 

subsection (2) of that regulation constituted SWIF’s sole means of temporarily forestalling the fee 

review process. See WC Regul. 127.255(2), 34 Pa. Code § 255(2).
23

provider does not have a constitutionally-protected property interest in goods or

services that it dispensed, as these providers were never entitled to payment under 

the Act; rather they simply have an expectation of payment in the normal course.” 

Keystone Rx, 265 A.3d at 333. The Court further noted that non-treating providers 

may dispute the amount or timeliness of payment by applying for fee review. Id. at 

325. However, this holding does not bear upon whether SWIF’s “causal relatedness” 

denial entitled it to withhold reimbursement for the prescribed mattress overlay 

without first initiating the utilization review process.

Accordingly, as none of the conditions in WC Regulation 127.255, 34 

Pa. Code § 127.255, have been met, the Hearing Office correctly determined that 

Harburg’s fee review petition was not premature, and we affirm. 

__________________________________

CHRISTINE FIZZANO CANNON, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

State Workers’ Insurance Fund, :

Petitioner :

:

v. :

:

Harburg Medical Sales Co., Inc., :

(Bureau of Workers’ Compensation :

Fee Review Hearing Office), : No. 712 C.D. 2021 

Respondent :

O R D E R

AND NOW, this 15th day of December, 2022, the June 3, 2021 order 

of the Bureau of Workers’ Compensation Fee Review Hearing Office is 

AFFIRMED.

__________________________________

CHRISTINE FIZZANO CANNON, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

State Workers’ Insurance Fund, :

Petitioner :

 :

v. : No. 712 C.D. 2021

 : Argued: June 22, 2022

Harburg Medical Sales Co., Inc. :

(Bureau of Workers’ Compensation :

Fee Review Hearing Office), :

Respondent :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE CHRISTINE FIZZANO CANNON, Judge

HONORABLE ELLEN CEISLER, Judge

HONORABLE LORI A. DUMAS, Judge

CONCURRING AND DISSENTING OPINION BY

PRESIDENT JUDGE COHN JUBELIRER FILED: December 15, 2022

I agree with the Majority that the State Workers’ Insurance Fund (SWIF) has 

waived its challenge to Harburg Medical Sales Co., Inc.’s (Harburg) standing by 

raising the issue for the first time on appeal to this Court. Therefore, I concur with 

that portion of the Majority. However, for the reasons set forth in my dissenting 

opinion in UPMC Benefit Management Services, Inc. d/b/a UPMC Work Partners 

v. United Pharmacy Services (Bureau of Workers’ Compensation Fee Review 

Hearing Office), __ A.3d __ (Pa. Cmwlth., No. 558 C.D. 2021, filed December 15, 

2022) (Cohn Jubelirer, P.J., dissenting), I disagree with affirming the Workers’ 

Compensation Fee Review Hearing Office’s decision that held that Harburg’s Fee 

Review Applications were not premature due to SWIF’s failure to seek Utilization 

Review, notwithstanding that its challenge was based on the treatment not being 
RCJ – 2

related to the work-related injury. Accordingly, I must, respectfully, dissent from 

that portion of the Majority.

__________________________________________

RENÉE COHN JUBELIRER, President Judge