An employer in Pennsylvania may be required to reimburse a pharmacy for an expensive compound cream prescribed to a worker for his shoulder injury, because the employer failed to seek utilization review.

In the case of Workers’ First Pharmacy Services LLC v. Bureau of Workers Compensation Fee Review Hearing Office, a three-judge panel of the Commonwealth Court of Pennsylvania in Harrisburg unanimously held Thursday to vacate and remand an earlier decision which found a medical fee review of the compound cream to be premature.

On December 18, 2016 an employee of Bayada Home Health Care Inc. in Philadelphia, PA, sustained a shoulder injury and his subsequent workers comp claim was accepted. His physician prescribed a compound cream containing a nonsteroidal anti-inflammatory drug that he was supposed to apply to the strain 2-4 times a day. Workers’ First Pharmacy Services dispensed the cream and billed Bayada $4,869. The employer refused to pay the bill on the basis the “diagnosis” was “inconsistent with the procedure”.

The pharmacy filed a medical fee review with the Pennsylvania Bureau of Workers’ Comp, and Bayada was ordered to pay for the cream, plus interest. They appealed, saying the cream had not been adjudicated as related to the work injury and that the fee review was premature. The Bureau’s hearing office found that Bayada denied payment because it did not believe the compound cream was related to the work injury and that fact should be established by the employer’s acceptance of the cream of a workers compensation judge, and dismissed the directive to pay.

The pharmacy appealed to the Pennsylvania Commonwealth Court, asserting that the hearing office erred.

Under the Pennsylvania Workers Comp Act, employers or insurers must make payments to providers for treatment within 30 days unless there is a dispute as to the reasonableness or necessity of the treatment, in which case the payer may seek utilization review.

The pharmacy argued that Bayada waived its right to challenge the cream as unrelated because it did not seek UR and the court agreed. The hearing office had erred in finding the pharmacy’s fee review petition premature and the court vacated the decision and remanded for a fee review determination.

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