Armour Pharmacy v. Bureau of WC Fee Review Hearing Office (Wegman's Food Markets, Inc.) ( 2019 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Armour Pharmacy, :
Petitioner :
:
v. : No. 1725 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
BY PRESIDENT JUDGE LEAVITT FILED: March 29, 2019
Armour Pharmacy (Pharmacy) petitions for review of an adjudication
of the Bureau of Workers’ Compensation, Fee Review Hearing Office (Hearing
Office) that vacated three determinations of the Bureau’s Medical Fee Review
Section that directed Wegman’s Food Markets, Inc. (Employer) to reimburse
Pharmacy for medications it had dispensed to Ryan Allem (Claimant). Employer
challenged 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 jurisdiction to determine whether Pharmacy was a “provider,” the
Hearing Office vacated the three determinations and dismissed Employer’s appeal
1
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§1-1041.4, 2501-2710.
thereof. Pharmacy argues that the Hearing Office’s adjudication has left it without
a forum to challenge Employer’s refusal to reimburse it for medications it dispensed
to treat Claimant for his work injury, and this violates due process. We reverse and
remand.
Background
On November 2, 2016, Bucks County Orthopedic Specialists
prescribed Claimant a medical cream compound consisting of “Ketamine 10%,
Flurbiprofen 10%, Gabapentin 10%, Cyclobenzaprine 3%, Bupivacaine 2%, [and]
Transdermal Base (qs)” to treat his pain. Reproduced Record at 98a (R.R. __).
Pharmacy dispensed the medication to Claimant on three occasions and thereafter
invoiced Employer $3,634.17 for each prescription. Employer denied payment on
the first invoice of November 30, 2016, for the following reasons:
Charge for pharmaceuticals exceed the fees established by the
fee schedule rates [and the usual customary and reasonable]
rates. [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 29, 2016,
stating as follows: “Request for treatment has been denied, withdrawn or refused”
and “Denied: Utilization review filed.” R.R. 16a. Likewise, Employer denied
payment on the third invoice of March 1, 2017, stating as follows: “Denied: Medical
records. Please resubmit with related medical records to: [Employer’s address].”
R.R. 40a.
Pharmacy filed three applications with the Bureau’s Medical Fee
Review Section, requesting a review of Employer’s refusal to pay the three invoices
for the compound cream. The Medical Fee Review Section found, first, that
2
Employer had timely refused payment on each of the three invoices. Next, the
Medical Fee Review Section found that the amount of payment owed under the
required “Workers’ Compensation fee calculations” was $3,322.16. R.R. 29a. The
Medical Fee Review Section directed Employer to pay Pharmacy $3,322.16, plus
ten percent interest on each invoice.
While the Medical Fee Review Section’s review of the third application
was pending, Employer filed a request for a de novo hearing on the first two
administrative decisions. Employer identified the legal issue as follows:
Lack of jurisdiction in the fee reviewers and lack of proper
“provider” status on the part of the billing entity. Failure to bill
at the proper statutory rates; and award in excess of statutory
rates. Employer reserves right to amend to include additional
grounds.
R.R. 44a. The Hearing Office assigned Employer’s appeal to a hearing officer, and
Employer’s application was amended to include the Medical Fee Review Section’s
decision on Pharmacy’s third application.
On July 24, 2017, Employer filed a motion to dismiss its own appeal.
In support, Employer argued that because Pharmacy was not a “provider” within the
meaning of the Workers’ Compensation Act, the Hearing Office lacked jurisdiction.
Pharmacy opposed the motion to dismiss, arguing that Employer had waived its
“provider” argument by not raising the issue in its denial of Pharmacy’s invoices or
with the Medical Fee Review Section. By decision and order of October 30, 2017,
the Hearing Office granted Employer’s motion to dismiss. Relying on 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), the Hearing Office held that it could not proceed on
3
Employer’s appeal because it challenged Pharmacy’s status as a “provider,” an issue
beyond its jurisdiction. Likewise, the Medical Fee Review Section lacked
jurisdiction to act upon Pharmacy’s fee review applications and, thus, the Hearing
Office vacated those determinations. Finally, the Hearing Office rejected
Pharmacy’s waiver argument, citing this Court’s holding in Pittsburgh Moose Lodge
#46 v. Workmen’s Compensation Appeal Board (Greico), 530 A.2d 982 (Pa.
Cmwlth. 1987), that subject matter jurisdiction is an issue that can be raised at any
point in litigation.
On appeal,2 Pharmacy argues that the Court should reconsider its ruling
in Selective Insurance because it leaves a provider that renders medical treatment to
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.3
2
This Court’s scope of review of a decision by the Bureau’s 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. 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).
3
The cost containment regulations forbid a provider from holding “an employe liable for costs
related to care or services rendered in connection with a compensable injury under the act.” 34
Pa. Code §127.211(a).
4
Applicable Law
We begin with a review of the applicable provisions of the Act, which,
inter alia, require employers to provide the medical care needed to treat an
employee’s work injury. Section 306(f.1) of the Act, 77 P.S. §531. To that end,
employers must pay “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 109 of the Act defines a
“health 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 (emphasis added).
The Act requires employers to make prompt payment on provider
invoices for reasonable and necessary medical treatment of a claimant’s work injury,
and it establishes specific procedures for resolving disputes about a particular
invoice. Section 306(f.1)(5) states:
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
5
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 department 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), 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 department shall render an
administrative decision.
77 P.S. §531(5) (emphasis added). Subsection 6 states, in relevant part, as follows:
[D]isputes 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 department
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(6) (emphasis added).
In sum, where an employer challenges a provider’s treatment as neither
reasonable nor necessary, it must seek utilization review pursuant to Section
306(f.1)(6) of the Act. Where a provider does not receive payment within 30 days
(and payment has not been stayed by an employer’s utilization review request), it
6
has recourse. The provider may file a fee review petition under Section 306(f.1)(5)
of the Act.
The case law has limited the scope of the fee review provisions of the
Act. This Court has explained as follows:
[T]he fee review process presupposes that liability has been
established, either by voluntary acceptance by the employer or a
determination by a WCJ [workers’ compensation judge].
Neither the Act nor the medical cost containment regulations
provide any authority for a fee review officer to decide the issue
of liability in a fee review proceeding. The Department’s
regulations, at 34 Pa. Code §127.255(1), state that an application
for fee review filed by a provider is premature and will be
returned if “[t]he insurer denies liability for the alleged work
injury.” The issue for the fee review officer is the “amount and
timeliness of the payment made by an insurer.” 34 Pa. Code
§127.251.
Nickel v. Workers’ Compensation Appeal Board (Agway Agronomy), 959 A.2d 498,
503 (Pa. Cmwlth. 2008) (emphasis added). In short, an employer’s liability for a
claimant’s work injury must be established before the fee review provisions can
come into play. Our Supreme Court has underscored this point, stating that a fee
review is designed to be a simple process with a “very narrow scope” limited to
determining the “relatively simple matters” of “amount or timeliness” of payment
for medical treatment. Crozer Chester Medical Center v. Department of Labor and
Industry, Bureau of Workers’ Compensation, Health Care Services Review Division,
22 A.3d 189, 196-97 (Pa. 2011).
Whether an entity is a “provider” has been considered a question of
employer liability and, thus, beyond the scope of a fee review proceeding. In
Selective Insurance, 86 A.3d 300, the employer sought review of two fee
determinations of the Bureau’s Medical Fee Review Section, which had awarded
7
payment to the so-called “billing agency,” i.e., The Physical Therapy Institute. In
its request for a hearing on these determinations, the employer asserted that The
Physical Therapy Institute was not a provider but a billing entity. The Hearing
Office dismissed the employer’s petition, stating that it lacked jurisdiction to
determine whether The Physical Therapy Institute was a provider, and this Court
affirmed.
In so holding, we noted that the employer did not question the amount
of the invoice but, instead, its liability to The Physical Therapy Institute. Since
liability “must be established before a fee review proceeding can take place,” we
concluded that the issue was beyond the scope of a fee review proceeding and, thus,
the Hearing Office “lacked jurisdiction to determine whether The Physical Therapy
Institute [was] a medical provider.” Id. at 304-05. Notably, the record in Selective
Insurance showed that at least two claimants treating with The Physical Therapy
Institute had filed penalty petitions to litigate the issue of whether The Physical
Therapy Institute was a provider within the meaning of the Act. Given this record,
this Court observed:
Claimants have an incentive to file a petition on behalf of a
provider because when an insurer violates the Act by failing to
make proper payment to a medical provider, the penalty is
payable to the claimant. Westinghouse Electric Corporation v.
Workers’ Compensation Appeal Board (Weaver), 823 A.2d 209,
218 (Pa. Cmwlth. 2003). The absence of a direct statutory
remedy for providers does not mean that the Court may expand
the scope of a fee review to create a remedy. The matter is one
for the legislature, assuming there is a need for a provider to have
another remedy.
8
Id. at 305 n.9. With regard to The Physical Therapy Institute’s recourse, the Court
noted that the claimant “can file a petition to establish [an] [i]nsurer’s liability to The
Physical Therapy Institute, such as a review petition or a penalty petition.” Id.
Thereafter, in Physical Therapy Institute, Inc. v. Bureau of Workers’
Compensation Fee Review Hearing Office, 108 A.3d 957, 960 (Pa. Cmwlth. 2015),
The Physical Therapy Institute argued that it was unfair for an employer to set aside
a fee review determination by fabricating “an unfounded factual or legal issue,
leaving providers with no recourse or remedy.” (internal footnote omitted).
However, we observed that
the issue of whether [The] Physical Therapy Institute can
establish itself as the provider entitled to payment, by contract
with another provider, will be decided. Should [The] Physical
Therapy Institute be adjudicated the provider, it can re-bill
Insurer and proceed to fee review if an issue arises involving
amount or timeliness of payment. Should either party believe that
the other is effecting a fraud, it can pursue that claim in a legal
action, such as a declaratory judgment action.
Id.
Recently, in Armour Pharmacy v. Bureau of Workers’ Compensation
Fee Review Hearing Office (National Fire Insurance Company of Hartford), 192
A.3d 304 (Pa. Cmwlth. 2018) (Armour I), Pharmacy appealed a Hearing Office
determination that it lacked jurisdiction over a fee review determination that, as here,
involved the dispensing of a compound cream. Prior to the hearing on the
employer’s appeal of the fee determination, the employer and the claimant entered
into a Compromise and Release (C&R) Agreement that obligated the employer to
pay for previously incurred medical expenses that were determined to be reasonable
and necessary for treatment of the claimant’s injury. Notably, the C&R Agreement
explicitly relieved the employer of liability for past, present or future prescriptions
9
for compound creams. Before the Hearing Office, the employer argued that under
the C&R Agreement, it had no liability to Pharmacy and, in any case, the Hearing
Office lacked jurisdiction. Pharmacy petitioned for this Court’s review, and we held
in favor of Pharmacy.
We concluded that the employer could not use a C&R Agreement, to
which Pharmacy was not a party, to deprive Pharmacy of its right to payment under
the Act. Further, the employer had previously sought utilization review of the
compound cream, and it was determined to be a reasonable and necessary treatment
of the claimant’s work injury. However, the employer did not appeal that
determination. We construed the C&R Agreement, which established the
employer’s liability for past medical expenses, to require reimbursement for the
compound cream.
The polestar in Armour I was that the Act must be construed in
accordance with due process of law. An employer may challenge a claimant’s
medical treatment as not medically necessary. Once it loses that challenge, however,
it cannot use a C&R Agreement to deprive the provider of its right under the Act to
prompt payment for services rendered to treat a claimant’s work injury.
Pharmacy Issues on Appeal
In its first issue, Pharmacy requests this Court to revisit or limit its
holding in Selective Insurance and offers several reasons in support thereof. First,
because the Bureau has not promulgated an appropriate regulation, a provider does
not have a remedy where the employer questions its status as a “provider” under the
Act. Second, the Court’s observation in Selective Insurance that it is for the claimant
to establish the employer’s liability to a “provider” did not protect providers because
they cannot compel claimants to file a petition. Indeed, a claimant may fear
10
retaliation by the employer in the form of a termination, suspension or modification
petition, and a claimant may not be able to afford counsel. Third, a claimant’s
interest does not necessarily coincide with a provider’s interest, as was shown in
Armour I.
Pharmacy argues that Selective Insurance should be limited to its facts,
where the employer made a prima facie showing that the billing agency was not a
provider. In Selective Insurance, the billing entity’s status was a valid question
because the invoices named two different physical therapists, one of whom had a
business address different from that of The Physical Therapy Institute. By contrast,
here, Pharmacy is both the provider and the billing entity, and Employer presented
no evidence to support its averment to the contrary.
Pharmacy argues that Physical Therapy Institute is likewise factually
distinguishable because in that case, the employer had consistently maintained that
the “provider” seeking payment did not render the physical therapy services recited
in the invoice. By contrast, here, Employer has denied payment for several reasons,
stating that the amounts exceeded the fee schedule and that compound creams are
not medically necessary. At no point did Employer present any evidence that
Pharmacy was not a provider.
Employer does not respond to these arguments, stating that it “has little
to argue with [Pharmacy] in terms of what the statute says, what the regulations
provide, and what prior case law emanating from this [C]ourt has held with respect
to the fee review process.” Employer Brief at 7.
In its second issue, Pharmacy contends that it is being denied its due
process of law.4 Specifically, the Act and implementing regulations, as presently
4
The Due Process Clause of the Fourteenth Amendment states as follows:
11
construed, empower an employer (or its insurer) to refuse payment for medical
treatment of a claimant without having to make its case in an evidentiary hearing.
In support of its due process claim, Pharmacy cites Cruz v. Workers’ Compensation
Appeal Board (Philadelphia Club), 728 A.2d 413 (Pa. Cmwlth. 1999). There, we
reversed a decision of a workers’ compensation judge (WCJ) that a provider’s
treatment was unreasonable where the provider had not been given notice or an
opportunity to participate in the deposition of an expert who opined that the
treatment was unreasonable. We held that this was “fundamentally unfair” to the
provider. Id. at 417. Likewise, here, Pharmacy contends that it is unfair to
extinguish its statutory right to payment without an evidentiary hearing.
Pharmacy also directs our attention to Caso v. Workers’ Compensation
Appeal Board (School District of Philadelphia), 790 A.2d 1078 (Pa. Cmwlth. 2002),
rev’d, 839 A.2d 219 (Pa. 2003), which considered the certification of vocational
experts. The Workers’ Compensation Appeal Board (Board) held that the Act
permitted WCJs to certify consultants as expert witnesses after the vocational
interview has taken place. We disagreed and reasoned, inter alia, that the Bureau
had to promulgate a regulation before WCJs could qualify vocational experts. Our
No State shall make or enforce any law which shall abridge the privileges or
immunities of citizens of the United States … nor shall any State deprive any person
of life, liberty, or property, without due process of law; nor deny to any person
within its jurisdiction the equal protection of the laws.
U.S. CONST. amend. XIV, §1. The Pennsylvania Constitution also provides this protection. PA.
CONST. art. I, §9.
One asserting a due process violation must show “an alleged constitutional deprivation
caused by the exercise of some right or privilege created by the State or by a rule of conduct
imposed by the State or by a person for whom the State is responsible, and that the party charged
with the deprivation must be a person who may fairly be said to be a state actor.” American
Manufacturers Mutual Insurance Company v. Sullivan, 526 U.S. 40, 50 (1999) (internal citations
and quotation marks omitted).
12
Supreme Court reversed, holding that WCJs routinely make competency
determinations about experts and were fully able to do so in this context. Pharmacy
argues that our reasoning in Caso has continued viability to the extent it stands for
the principle that this Court can direct the promulgation of a regulation. Pharmacy
urges this Court to direct the Bureau to do so here so that providers can have a way
to determine their status under the Act.
Employer argues, in response, that Pharmacy waived its due process
claim. Employer observes that it was the only party that attempted to submit
evidence, pointing to its May 25, 2017, subpoena request.5 However, even if this
Court accepted Pharmacy’s constitutional challenge to the Act, that ruling will still
leave Pharmacy without a remedy under the Act. Employer argues that the Court
can avoid this dilemma with a construction of the Act that allows the Hearing Office
“to entertain evidence on the issue of whether a purported ‘provider’ is, in fact, a
‘provider’ or ‘the’ provider in the first instance.” Employer Brief at 11. Allowing
the Hearing Office to make the threshold determination of “provider status” and its
own subject matter jurisdiction saves the fee review provisions in the Act. However,
this will not entitle Pharmacy to a hearing in this case because Pharmacy did not
make a proffer of evidence relevant to its provider status before the Hearing Office.6
Analysis
The principles governing administrative practice and procedure in
Pennsylvania are founded in our Constitution. Article V states as follows:
5
The subpoena request was denied because the Hearing Office concluded it lacked jurisdiction
over the matter.
6
Employer argues that it acted properly by requesting the subpoena instead of summarily
requesting dismissal. Employer acknowledges that it also did not present evidence at the hearing,
but it attempted to do so by requesting the subpoena. It contends that Pharmacy has no excuse for
not putting forth a case on its provider status.
13
There shall be a right of appeal in all cases to a court of record
from a court not of record; and there shall also be a right of appeal
from a court of record or from an administrative agency to a court
of record or to an appellate court, the selection of such court to
be as provided by law; and there shall be such other rights of
appeal as may be provided by law.
PA. CONST. art. V, §9. As our Supreme Court has recently explained, Article V,
Section 9 “is consistent with inherent notions of due process.” Pittman v.
Pennsylvania Board of Probation and Parole, 159 A.3d 466, 474 (Pa. 2017).
The legislature has provided specificity to the administrative agency
appeal process in the Administrative Agency Law, 2 Pa. C.S. §§501-508; 701-704.
It defines an “adjudication” as a “final order, decree, decision, determination or
ruling by an agency affecting personal or property rights, privileges, immunities,
duties, liabilities or obligations of any or all of the parties to the proceeding in which
the adjudication is made.” 2 Pa. C.S. §101. It further provides:
No adjudication of a Commonwealth agency shall be valid as to
any party unless he shall have been afforded reasonable notice of
a hearing and an opportunity to be heard. All testimony shall be
stenographically recorded and a full and complete record shall be
kept of the proceedings.
2 Pa. C.S. §504. Thus, “[u]ntil a record is made of the proceedings,” the adjudication
is not valid. Turner v. Pennsylvania Public Utility Commission, 683 A.2d 942, 946
(Pa. Cmwlth. 1996). “The reason behind this requirement is that judicial review
without a proper record or a valid administrative adjudication is a premature
interruption of the administrative process.” Id. at 946. When the governing statute
has “no specific provisions” by which to obtain an administrative hearing on the
agency’s action, it is the “the Administrative Agency Law [that] provides a default
14
mechanism for the provision of hearings and for appeals from administrative
adjudications, which comport with due process requirements.” Id.
With these principles in mind, we turn to the fee review requirements
established in the Act. The implementing regulations guarantee prompt payment to
a provider of medical treatment “to employes with work-related injuries and
illnesses.” 34 Pa. Code §127.1. They allow employers to challenge a course of
treatment as not medically necessary. 34 Pa. Code, Chapter 127, Subchapter C
(relating to medical treatment review). Employer may “downcode” provider charges
in accordance with the cost containment requirements. 34 Pa. Code §127.207.
To implement this scheme, the Bureau of Workers’ Compensation has
created the Medical Fee Review Section to review provider complaints of untimely
or inadequate payment, and it has created the Fee Review Hearing Office to conduct
an evidentiary hearing on the validity of a fee review determination. 34 Pa. Code
§127.257(a) (“A provider or insurer shall have the right to contest an adverse
administrative decision on an application for fee review.”). That hearing includes
an examination of “all relevant evidence,” and the testimony is “recorded and a full
record kept of the proceeding.” 34 Pa. Code §127.259(b), (d). The Hearing Office
issues a “fee review adjudication” that “will include all relevant findings and
conclusions, and state the rationale.” 34 Pa. Code §127.260(a). These procedures
ensure that the Bureau’s adjudication comports with the requirements of the
Administrative Agency Law, 2 Pa. C.S. §504, for a valid adjudication.
It offends due process, Article V, Section 9 of the Pennsylvania
Constitution as well as the Act’s careful scheme for resolving fee disputes to place
the question of whether a putative provider is actually a “provider” beyond the reach
of judicial review. We hold that where the employer challenges a fee determination
15
of the Medical Fee Review Section for the stated reason that the medical service was
not rendered by a “provider” within the meaning of the Act, that threshold question
must be decided by the Hearing Office. Jurisdiction, a quasi-judicial matter, is not
to be decided by the Medical Fee Review Section, whose responsibility is solely
administrative. Its inquiry is limited to the timeliness of the employer’s payment (or
denial) and the correct amount of reimbursement owed to the provider. 34 Pa. Code
§127.252.
This holding is consistent with precedent in analogous situations. It has
long been held, for example, that a challenge to an arbitrator’s jurisdiction over a
grievance brought under a collective bargaining agreement must be presented to the
arbitrator in the first instance. Pennsylvania Labor Relations Board v. Bald Eagle
Area School District, 451 A.2d 671 (Pa. 1982). If a party is not satisfied, the question
may then be raised in judicial review. Id.
J.G. v. Department of Public Welfare, 795 A.2d 1089 (Pa. Cmwlth.
2002), is also instructive. In J.G., we considered a challenge to the administrative
hearing procedures under the Child Protective Services Law,7 which established a
ChildLine and Abuse Registry consisting of “indicated” and “founded” reports of
child abuse. 23 Pa. C.S. §6331(2) (requiring the Department to establish “[a]
Statewide central register of child abuse”). The Child Protective Services Law
provided that a perpetrator of child abuse named in an indicated report could have
an administrative hearing to challenge the report. However, the statute did not
provide this opportunity to perpetrators named in a founded report, which is issued
following a judicial adjudication of abuse in a criminal conviction or a civil
dependency proceeding. In J.G., a child was adjudicated a “dependent child”
7
23 Pa.C.S. §§6301-6386.
16
because of abuse suffered while in the care of both parents. The mother sought a
hearing to challenge the founded report that named her as a perpetrator, but the
Department dismissed her hearing request as not authorized by the Child Protective
Services Law.
We reversed and remanded the matter to the Department for a hearing.
We held that the omission of a hearing on a founded report in the Child Protective
Services Law was not dispositive. We looked to the Administrative Agency Law,
which defines an “adjudication” as a “final order, decree, decision, determination or
ruling by an agency affecting personal or property rights, [or] privileges ... of any or
all of the parties to the proceeding in which the adjudication is made.” 2 Pa. C.S.
§101.8 Further, an “adjudication” is not valid except where the party has “reasonable
notice of a hearing and an opportunity to be heard.” 2 Pa. C.S. §504. In J.G., the
child dependency adjudication did not “specifically find that [the mother] was guilty
of abuse.” J.G., 795 A.2d at 1093. A founded report naming the mother as a
perpetrator of child abuse in the absence of a hearing on that disputed fact would
constitute an invalid adjudication. Accordingly, this Court filled the lacuna in the
Child Protective Services Law with the default hearing required by the
Administrative Agency Law and directed the Department to conduct a hearing on
the mother’s challenge to the founded report.
Likewise, here, it is for the Hearing Office to conduct a hearing on
whether a person invoking the remedy set forth in Section 306(f.1)(5) is a “provider”
8
This Court held that a “final determination or order” that “brands” a named perpetrator as a child
abuser in a statewide central registry affects personal rights and, as such, constitutes an
adjudication. J.G., 795 A.2d at 1092. The impact on personal rights was a legal determination
based upon a review of the Child Protective Services Law. A hearing on the extent to which a
founded report “affects” a named perpetrator’s personal rights was neither appropriate nor
necessary.
17
within the meaning of the Act. In no way does this holding expand the scope of the
fee review proceeding beyond timeliness and amount owed to a provider that has
treated a claimant for his work injury. This holding does not allow the Hearing
Office to determine the reasonableness of the medical care or service; the claimant’s
injury as work-related; or the employer’s liability for a work injury. Where
utilization review is sought, a fee determination is premature.9
Our holding does not limit the determination of the status of a
“provider” to a fee review proceeding. In appropriate cases, this question may also
be determined by a workers’ compensation judge in the course of a claim or penalty
petition proceeding. This was the case in Selective Insurance. Where the employer’s
liability for medical treatment is established without a determination on the status of
a putative provider, then this question can be addressed by the Hearing Office where
raised by the employer. Selective Insurance is distinguishable, but to the extent
Selective Insurance is inconsistent with our holding here, it is overruled.10
Conclusion
For all of the above-stated reasons, we reverse the Hearing Office’s
adjudication and remand the matter for a determination of whether Pharmacy is a
provider within the meaning of the Act.
______________________________________
MARY HANNAH LEAVITT, President Judge
9
Employer denied payment on Pharmacy’s December 29, 2016, invoice because, inter alia, it
sought utilization review. If that utilization review has not been completed, then the Hearing
Office should hold Employer’s hearing request until the utilization review is completed.
10
We reject Employer’s argument that Pharmacy waived the question of its status as a “provider”
under the Act. Employer’s motion to dismiss was granted without evidence from either party.
18
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Armour Pharmacy, :
Petitioner :
:
v. : No. 1725 C.D. 2017
:
Bureau of Workers’ Compensation :
Fee Review Hearing Office :
(Wegman's Food Markets, Inc.), :
Respondent :
ORDER
AND NOW, this 29th day of March, 2019, the order of the Bureau of
Workers’ Compensation Fee Review Hearing Office, dated October 30, 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
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Armour Pharmacy, :
:
Petitioner :
:
v. : No. 1725 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
CONCURRING OPINION
BY JUDGE WOJCIK FILED: March 29, 2019
I join in the result reached by the Majority. By limiting the holdings in
Selective Insurance Company of America v. Bureau of Workers’ Compensation Fee
Hearing Office (The Physical Therapy Institute), 86 A.3d 300 (Pa. Cmwlth. 2014),
and Physical Therapy Institute, Inc. v. Bureau of Workers’ Compensation Fee
Hearing Office, 108 A.3d 957 (Pa. Cmwlth. 2015), this decision fills a gap in the
statutory and regulatory scheme.
However, I write separately to object to the Court’s reliance on J.G. v.
Department of Public Welfare, 795 A.2d 1089 (Pa. Cmwlth. 2002), as support in this
matter. I note that the two cases are inapposite, as the petitioner in the present appeal
seeks an adjudication of its statutory rights. In sharp contrast, we held in J.G. that
the petitioner was entitled to an administrative appeal from an adjudication.1
Accordingly, I concur in the result only.
MICHAEL H. WOJCIK, Judge
1
Additionally, I disagree with the Majority’s interpretation of J.G., because the issue of
whether a founded report of child abuse constitutes an “adjudication” was neither litigated nor
decided by the Court in J.G. Majority, slip op. at 16-17 and n.7. Rather, it was presumed,
apparently based on the Court’s misapprehension of the consequences: “A founded report of child
abuse is an ‘adjudication’ as it is a final determination that affects a named perpetrator’s personal
rights by branding him or her as a child abuser in a Statewide register of child abuse.” 795 A.2d
at 1092. The quoted language reflects a belief that a named perpetrator necessarily suffers great
harm to his or her reputation. However, the presumption of harm underlying the analysis in J.G.
is inconsistent with our Supreme Court’s analysis in G.V. v. Department of Public Welfare, 91
A.3d 667 (Pa. 2014), and R. v. Department of Public Welfare, 636 A.2d 412 (Pa. 1994), and it is
unsupported by the Child Protective Services Law, 23 Pa. C.S. §§6301-6386.
MHW - 2