From a defense perspective, the most common concern with defending a workers’ compensation claim is not whether the employee is entitled to benefits, but to what extent. While the employer certainly has statutory obligations when it comes to providing benefits to a workers’ compensation claimant, the employer also has rights. The claimant does not have carte blanche as to every aspect of her claim; there are reciprocal obligations.

For example, the claimant is entitled to a choice of treating physician in a given specialty, but the employer has the right to have the claimant examined by its own choice of physician within that specialty as well. However, it becomes less clear what the employer’s obligations to a claimant are with other types of medical providers, such as pharmacies. As recently as last year, the Louisiana Supreme Court resolved a circuit split as to whether or not a claimant is entitled to his choice of pharmacy, or whether that right belongs to the employer.

Burgess v. Sewerage & Water Board of New Orleans

In Burgess v. Sewerage & Water Board of New Orleans, 2016-2267 (La. 06/29/17), 2017 WL 2836062, the Louisiana Supreme Court analyzed the scope of the employer’s obligation to the employee to “furnish all necessary drugs” to the injured employee pursuant to La. R.S. 23:1203. The Court held that, while La. R.S. 23:1203(A) obligated an employer to provide drugs, the statute did not directly address who had the right between employer and employee to choose who dispensed the drugs, i.e., the pharmacy.

Further, the Court held that nowhere in the statute did the legislature provide the employee with the right to choose a pharmaceutical provider; had the legislature intended the employee to have a choice of pharmacy under La R.S. 23:1203(A), the legislature could have done so. Unlike that of a treating physician (where there is a personal relationship between the claimant as the patient and the doctor), there was no meaningful difference between relative to which pharmacy is used to dispense prescription drugs.

The Upshot for Employers and Insurance Carriers

The broad conclusion from Burgess is that the rights and obligations of employers and their workers’ compensation insurance carriers continue to be defined through litigation. Although the workers’ compensation act is liberally construed in favor of providing benefits, those rights to the claimant are not absolute. Employers and their insurance carriers continue to seek clarification as to their rights and obligations from the court, which will ultimately allow them to better assess exposure of risk.