State Workers’ Insurance Fund (SWIF) v. Harburg Medical Sales Co., Inc., (Bureau of Workers’ Compensation Fee Review Hearing Office); No. 712 C.D. 2021; filed Dec. 15, 2022

An insurer’s denial of payment for a medical bill on the basis that the treatment at issue is not related to the work injury does not require the dismissal of a Fee Review application as premature.

The claimant sustained various work-related injuries in 2004. The employer and its carrier (SWIF) accepted the injuries by issuing a Notice of Compensation Payable and, subsequently, an amended Notice of Compensation Payable in 2007. 

SWIF reimbursed Harburg Medical Sales for certain medical supplies and equipment prescribed to the claimant, but denied payment for a memory foam queen mattress overlay with a cover. SWIF took the position that the mattress was unrelated to the work injury.

Harburg filed an application for Fee Review. The Fee Review Section determined that SWIF was not obligated to pay for the mattress because the service had not been properly billed. Harburg then requested a de novo hearing, maintaining that SWIF should have sought Utilization Review before withholding payment of the prescribed mattress overlay based on a “causal relatedness” denial. SWIF countered that the Hearing Office lacked jurisdiction over Harburg’s Fee Review Application because liability for the claimant’s treatment was in dispute, rather than the timeliness or amount of any payment. The Hearing Office reversed the Fee Review Section and held that, under Regulation 127.208(e), seeking Utilization Review within 30 days of receipt of billing is a condition precedent to withholding payment and ordered SWIF to reimburse Harburg for the cost of the mattress.

SWIF appealed to the Commonwealth Court, arguing that its denial of payment based on causation rendered the Fee Review Application premature by operating as a denial of liability for the work injury, pursuant to Regulation 127.255(1). Harburg argued that an employer or insurer must pursue Utilization Review before denying reimbursement on the basis that treatment lacks a causal relationship to a work injury. 

The court rejected SWIF’s argument and affirmed the decision of the Hearing Office. The court noted that Regulation 127.255 contains no requirement that a Fee Review Application be dismissed as premature on the basis of a causally related denial. They noted that the Regulation states that an Application for Fee Review is prematurely filed by a provider when the insurer denies liability for the alleged work injury, the insurer has filed a Request for Utilization Review of the treatment, or the 30-day period allowed for payment has not yet elapsed. The court further pointed out that SWIF’s assertion that the prescribed treatment was not causally related to the work injury is not a denial of liability for the injury itself but, rather, a denial of liability for treatment of the injury.

What’s Hot in Workers’ Comp, Vol. 27, No. 1, January 2023 is prepared by Marshall Dennehey to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. We would be pleased to provide such legal assistance as you require on these and other subjects when called upon. ATTORNEY ADVERTISING pursuant to New York RPC 7.1 Copyright © 2023 Marshall Dennehey Warner Coleman & Goggin, all rights reserved. No part of this publication may be reprinted without the express written permission of our firm. For reprints or inquiries, or if you wish to be removed from this mailing list, contact