Argued: June 3, 2019
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge,
HONORABLE ROBERT SIMPSON, Judge, HONORABLE ELLEN CEISLER,
HANNAH LEAVITT, PRESIDENT JUDGE
First Pharmacy Services, LLC, (Pharmacy) petitions for review
of an adjudication of the Bureau of Workers'
Compensation, Fee Review Hearing Office (Hearing Office) that
vacated three fee review determinations by the Bureau's
Medical Fee Review Section. In a Compromise and Release
(C&R) Agreement between Miguel Martinez (Claimant) and
American Business Support (Employer), Employer denied that
Claimant suffered a work injury but, nevertheless, agreed to
compensate Claimant. The Hearing Office concluded it lacked
jurisdiction over Pharmacy's fee review applications
because Employer did not accept liability for the work injury
in the C&R Agreement. Pharmacy argues that Employer
cannot use a C&R Agreement to deprive Pharmacy of payment
for medical services it provided to Claimant. We vacate and
16, 2017, Claimant filed a claim petition pursuant to the
Workers' Compensation Act (Act),  alleging that he suffered a
work injury to his head, neck, back and left shoulder.
Specifically, Claimant alleged that on November 12, 2016,
while moving a cabinet, his hand truck got caught in
carpeting causing the cabinet to fall on him. On January 16,
2017, Employer filed a notice of workers' compensation
denial with the Bureau of Workers' Compensation, stating
Claimant did not suffer a work injury.
15, 2017, Gerald E. Dworkin, D.O., of the Pain and Spine
Treatment Center, prescribed Claimant several medications,
only two of which are relevant here. On May 17, 2017,
Pharmacy dispensed 177.2 units of Lidocaine 5 percent
Ointment, for which it billed Employer, by its insurer
Cincinnati Insurance Company (Insurer), $1, 909.95, and 300
units of Diclofenac 1.5 percent Topical Solution, for which
it billed Insurer $3, 249.99. On June 8, 2017, Pharmacy
dispensed 177.2 units of Lidocaine 5 percent Ointment and
billed Employer $1, 909.95. On June 19, 2017, Pharmacy
dispensed 300 units of Diclofenac 1.5 percent Topical
Solution, for which it billed Employer $3, 249.99.
denied payment on all three invoices for the stated reason
that Claimant did not sustain a work injury. In response,
Pharmacy filed three fee review applications. The Medical Fee
Review Section denied Pharmacy's applications regarding
the May 17 and June 19 invoices as premature because Employer
had contested liability for the alleged work injury.
Regarding the June 8 invoice, the Medical Fee Review Section
found that Employer owed Pharmacy $1, 650 (110 percent of the
average wholesale price), plus interest for an untimely
requested a hearing to contest all three fee review
determinations even though it had only received an adverse
determination regarding the June 8 invoice. Employer argued
that the Medical Fee Review Section lacked jurisdiction over
Pharmacy's fee review applications because Employer had
no liability for Claimant's injuries.
January 17, 2018, hearing before the Hearing Office, the
parties agreed that Employer had denied liability for
Claimant's injuries. They also agreed that a hearing was
scheduled before the Workers Compensation Judge (WCJ) on
February 21, 2018, and there was a possibility of settlement.
The Hearing Office continued the fee review contest in light
of the scheduled WCJ hearing.
February 21, 2018, Employer and Claimant presented a C&R
Agreement to the WCJ. Therein, Employer agreed to pay
Claimant $37, 500 in settlement of "his workers'
compensation claim for past, present, and/or future indemnity
and future health care benefits/medical benefits[.]"
Record at 22a (R.R. __). Paragraphs 10 and 10(r) of the
C&R Agreement stated, in pertinent part:
This is a resolution of a disputed claim. The mere fact that
the parties are entering into this resolution should not be
construed by Claimant, this Court or any other person or
entity that [Employer] is in any manner legally obligated for
any of the payments being made pursuant to this [C&R]
Agreement. To the contrary, [Employer] vigorously denies and
disputes any and all allegations that have been made by the
Claimant in any of the Claimant's Petitions.
Concerning past medical expenses, all parties acknowledge
that there are past unpaid healthcare expenses. These
include, but are not limited to, Jeanes Hospital, Temple
University Physicians ER, Disston Chiropractic, Temple Family
Practice and Dr. Dworkin. As part and parcel of this
settlement, Claimant is responsible for any past healthcare
bills, medical bills, prescription drug bills or health
related matters with limited exception. Both parties also
acknowledge that there are outstanding bills from [Pharmacy]
for topical creams. This is a denied claim. Nevertheless,
[Pharmacy] filed for reimbursement of its bill through the
Fee Review system. In short, the outstanding bills for
topical cream are currently being reviewed and litigated
through the Fee Review system. Those limited outstanding
bills are separate, distinct, and are not part of this
otherwise global resolution for any and all past, present and
future wages together with past, present and future medical.
That is, and by way of clarification, the Fee Review for
[Pharmacy] (attached is a request for hearing to contest
the Fee Review Determination as Exhibit "C")
shall continue. The instant [C&R] Agreement
does not resolve that issue nor will the Claimant be
responsible for any payments to [Pharmacy] pursuant to the
separate Fee Review litigation. Nevertheless, with that
limited exception, the instant settlement for a gross lump
sum of $37, 500.00 resolves any and all past, present or
future wages together with any other past, present or future
healthcare bills, medical bills, prescription drug bills
including but not limited to the referenced provider set
forth above. Under no circumstances will [Employer] be
responsible for any other past, present or future healthcare
bills (again with the limited exception of the pending Fee
Review matter attached as Exhibit "C"). That matter
shall continue litigation and is not being resolved by this
[C&R] Agreement. However, [Employer] is not responsible
for any past outstanding bills from Jeanes Hospital, Temple
University, Disston Chiropractic, Temple Family Practice, Dr.
Dworkin and any others again with the limited exception set
C&R, ¶¶10 and 10(r); R.R. 21a, 24a (emphasis
hearing on the C&R Agreement, Claimant testified that
Employer had agreed to settle without accepting liability for
his injuries. Claimant agreed that he would be responsible
for any outstanding medical expenses, except for those
related to Pharmacy's fee review applications.
Employer's counsel questioned Claimant as follows:
Q. Just a few questions. Your attorney was very thorough.
With respect to the fee review, there's a fee review
currently open [with Pharmacy]. You understand whatever the
fee review determination eventually comes down with, zero
dollars owed, $1, 000 owed, what have you, it's going to
have nothing to do with you; do you understand that?
Q. Is that okay with you?
Q. So, if it's deemed that [Insurer] owes an amount of
money, that that will be paid for and you won't be liable