Employer Retains Right to Choose Pharmaceutical Provider

The Louisiana Supreme Court recently resolved a circuit split on the issue of whether an injured employee is entitled to his choice of pharmacy, or whether that right belongs to the employer under the Louisiana Workers Compensation Act (“LWCA”).  In Burgess v. Sewerage & Water Board of New Orleans, 2016-2267 (La. 06/29/17), 2017 WL 2836062, Darvel Burgess filed a Disputed Claim for Compensation against his employer, Sewerage & Water Board of New Orleans (“S&WB”), for unpaid medical bills from Injured Workers Pharmacy (“IWP”) and Advanced Neurological Center, and entitlement to attorneys’ fees and penalties.  Mr. Burgess sustained injuries as a result of a work-related accident on October 13, 2008 and claimed that La. R.S. 23:1203(A) mandated his employer to pay all necessary and related medical treatment and prescriptions.  S&WB contended, on the other hand, it was not responsible for Mr. Burgess’ $13,110.82 IWP bill pursuant to La. R.S. 23:1142(B) because it notified all injured workers that it had approved another pharmacy to provide prescription services and failure of the injured worker to use that pharmacy could result in non-payment of medications.

The OWC judge ordered S&WB to pay Mr. Burgess’ IWP bill, all outstanding medical expenses owed to Advanced Neurodiagnostic Center, and $4,000.00 in penalties and attorneys’ fees due to S&WB’s failure to timely pay Mr. Burgess’ bills.  S&WB appealed the judgment, but only as to the IWP bill.  The Fourth Circuit affirmed in a 2–1 decision, and in so doing, concluded the choice of pharmacy belonged to the employee, not the employer.

S&WB sought supervisory review, which was granted by the Court.   In order to determine whether, under the LWCA, it is the injured employee or the employer who is entitled to choose the pharmacy to furnish prescription medications to the claimant, this Court analyzed La. R.S. 23:1203.  The Court noted that, “While [La. R.S. 23:1203(A)] obligates an employer ‘to furnish all necessary drugs’ to the injured employee, it does not directly address who has the right to choose the pharmacy to dispense these drugs.”  See id., at *8.  In holding that “the employer has the right to choose the pharmacy to furnish necessary prescription drugs to an injured employee in a workers’ compensation case,” the Court analyzed the legislative intent of the La. R.S. 23:1203. See id., at *9.  Although La. R.S. 23:1203(A) provides that “the employer shall furnish all necessary drugs,” the Court explained that “nowhere in the statute does the legislature provide the employee with the right to choose a pharmaceutical provider from which to obtain the necessary prescription drugs.” See id., at *10.   Rather, the Court noted that, had the legislature intended the employee to have the choice of pharmacy in La. R.S. 23:1203(A), the legislature could have easily done so.

The Court further noted that, “[u]nlike La. R.S. 23:1121(B) governing choice of physician, the legislature has not afforded the employee an absolute right to select a pharmacy under La. R.S. 23:1203(A),” explaining that “[u]nlike a patient’s personal relationship with his doctor, there is no meaningful difference relative to which pharmacy is used to dispense a prescription drug that would mandate employee choice under the LWCA.” See id., at *11.   The Louisiana Supreme Court therefore held that the law did not afford the employee the right to choose his pharmaceutical provider.

The Louisiana Supreme Court was also tasked with determining whether S&WB was responsible for payment of Mr. Burgess’ $13,110.82 IWP bill.  The Court looked to La. R.S. 23:1203(A), which allows for “medical care, services, and treatment” to be provided by out-of-state providers only “when such care, services, and treatment are not reasonably available within the state or when it can be provided for comparable costs.”  It was undisputed that IWP was an out-of-state pharmacy.  Because this issue was not raised before nor considered by the OWC judge, the Court remanded this matter to the OWC to determine whether “the services IWP provide[d] [were] not reasonably available in Louisiana or that IWP’s services [were] . . . comparable . . . to Louisiana providers.” See id., at *14 (emphasis in original).  If IWP is determined to be a permissible out-of-state provider, the Court instructed the OWC judge to also determine the amount of reimbursement by means of applicable Louisiana jurisprudence and statutes.