OF CERTIORARI TO THE COURT OF APPEAL, FOURTH CIRCUIT, OFFICE
OF WORKERS' COMPENSATION DISTRICT 8
JOHNSON, Chief Justice
workers' compensation case, the claimant, Darvel Burgess,
filed a Disputed Claim for Compensation after his employer,
Sewerage & Water Board of New Orleans
("S&WB"), refused to pay a $13, 110.02
outstanding bill for prescription medications from Injured
Workers Pharmacy ("IWP"). The underlying legal
issue is whether the injured employee is entitled to his
choice of pharmacy, or whether that right belongs to the
employer under the Louisiana Workers Compensation Act
("LWCA"). We granted this writ application to
resolve a split in our circuit courts of appeal on this
issue. After review, we hold the choice of pharmacy in a
workers' compensation case belongs to the employer.
AND PROCEDURAL HISTORY
Burgess sustained a work-related injury on October 13, 2008.
On September 18, 2012, Mr. Burgess filed a Disputed Claim for
Compensation against his employer, S&WB, asserting in
part a dispute over unpaid medical bills and entitlement to
penalties and attorney fees. The matter was submitted to the
Louisiana Office of Workers' Compensation
("OWC") solely on briefs and exhibits. The only
disputed issues presented to the OWC judge were unpaid bills
from IWP and Advanced Neurodiagnostic Center, as well as Mr.
Burgess' entitlement to penalties and attorney fees as a
result of S&WB's failure to timely pay these
brief submitted to the OWC, Mr. Burgess asserted he is
entitled to have all necessary and related medical treatment
and prescriptions paid by his employer pursuant to La. R.S.
23:1203(A). He argued the unpaid bills were related to
treatment for his work-related injury, including medications
prescribed by his treating physician, and as such were
reasonable and necessary. Mr. Burgess further requested an
award for penalties and attorney fees. S&WB argued it is
not responsible for the outstanding IWP bill pursuant to La.
R.S. 23:1142(B) because it notified all injured workers on
October 10, 2011, that henceforth Corvel Caremark Pharmacy
program was the approved provider for prescription services
and failure of the injured worker to use the pharmacy card
provided may result in non-payment of medications.
Additionally, S&WB noted IWP was notified on April 12,
2012, that it was not an approved pharmacy provider for
S&WB's workers' compensation claims and bills
submitted by IWP would be denied.
18, 2015, the OWC judge issued a judgment ordering S&WB
to pay the outstanding $13, 110.82 bill from IWP and all
outstanding medical expenses owed to Advanced Neurodiagnostic
Center "via the fee schedule." The OWC judge
awarded Mr. Burgess a $2, 000 penalty and $2, 000 in attorney
fees due to S&WB's failure to timely pay these bills.
S&WB suspensively appealed the judgment, but only as to
the IWP bill.
court of appeal affirmed in a 2-1 decision. Burgess v.
Sewerage & Water Board of New Orleans, 15-0918
(La.App. 4 Cir. 2/3/16), 187 So.3d 49 ("Burgess
I."). In so doing, the Fourth Circuit concluded the
choice of pharmacy belongs to the employee, not the employer.
187 So.3d at 57. The court noted La. R.S. 23:1203(A) requires
the employer to provide the employee with all necessary
prescription medication. Id. at 51. The court of
appeal referenced an Alabama case, Davis Plumbing, Inc.
v. Burns, 967 So.2d 94 (Ala. Civ. App. 2007), which held
the choice of pharmacy under a similar Alabama statute
belonged to the employee. Id. at 52. In addition,
the court analyzed each Louisiana appellate court case on the
subject and the differing outcomes. The court of appeal
concluded that Louisiana is overwhelmingly a patient's
choice state, observing that twenty-three other states
expressly provide for employer choice of treating physician
and three limit the employee's choice to a list provided
by the state agency. Id. at 57. In addition, the
court noted the LWCA contains no provision granting the
employer the right to select the pharmacy that the employee
must use. To the contrary, the LWCA obligates the employer to
pay for the employee's reasonably necessary prescription
medication and contains no exception for situations in which
the employer objects to the pharmacy the employee selects.
Id. The court also rejected S&WB's reliance
on La. R.S. 23:1142(B) in an attempt to obtain the benefit of
the choice of pharmacy, finding prescription medication is
not part of "nonemergency diagnostic testing or
treatment" under the statute, and further noting the
purpose of the statute is to allow the employer to contest
unnecessary or unreasonable medical care, not to allow
employers to bargain shop. Id. at 57-58.
Lobrano dissented, finding a determination of whether the
employee is entitled to his choice of pharmacy did not end
the inquiry of whether payment of the disputed pharmacy
expenses is due or in what amount. Id. at 58.
(Lobrano, J., dissenting). She noted IWP is an out-of-state
provider, and La. R.S. 23:1203(A) provides in pertinent part,
"[m]edical care, services, and treatment may be provided
by out-of-state providers or at out-of-state facilities when
such care, services, and treatment are not reasonably
available within the state or when it can be provided for
comparable costs." Further, La. R.S. 23:1203(B) limits
the employer's obligation to "reimbursement...as
determined under the reimbursement schedule...pursuant to
R.S. 23:1034.2, or the actual charge made for the service,
whichever is less." Id. at 58-59. Judge Lobrano
found the record lacked any evidence of whether IWP fit the
criteria for a permissible out-of-state provider under La.
R.S. 23:1203(A) or any evidence of the reimbursement schedule
set forth in La. R.S. 23:1034.2, and the OWC judge erred by
failing to consider these issues. Id. at 59. Judge
Lobrano opined the case should be remanded to the OWC to
determine whether pharmacy expenses are due to IWP as an
out-of-state provider, and if so, the amount of expenses due
pursuant to the reimbursement schedule. Id.
sought supervisory review in this court. While the
application was pending, this court rendered its opinion in
Lafayette Bone & Joint Clinic v. Louisiana United
Business SIF, 15-2137 (La. 6/29/16), 194 So.3d 1112,
which addressed, but did not decide, the choice of pharmacy
issue. In that case, the claimants, who were injured in the
course of their employment, were treated by physicians at the
Lafayette Bone & Joint Clinic ("LB&J").
During the course of treatment, the physicians prescribed
medications which were dispensed directly to claimants by
LB&J employees. 194 So.3d at 1115. On June 5, 2008, the
workers' compensation payor, Louisiana United Business
SIF ("LUBA"), sent letters to LB&J and its
physicians, stating that LUBA would no longer pay for
prescription medications directly dispensed by LB&J and
directing LB&J physicians to issue future prescriptions
to be filled by local retail pharmacies. Despite these
notices, LB&J continued to dispense prescription
medications directly to claimants throughout 2008 and to
submit requests for reimbursement to LUBA. LUBA declined
payment, citing its June 5, 2008 notice. LB&J filed a
disputed claim with the OWC, seeking to recover the costs of
the medications dispensed, along with penalties and attorney
fees. Id. After a trial on the merits, the OWC
issued judgment in favor of LB&J, but ordered that
recovery for medications dispensed after June 5, 2008, was
limited by La. R.S. 23:1142(B) to $750 for each claimant. The
OWC refused to award attorney fees and penalties in light of
LUBA's notice to LB&J. The court of appeal reversed,
awarded attorney fees and penalties, and removed the $750
cap. Id. at 1116.
majority of this court reversed the court of appeal's
modification of the $750 cap and otherwise affirmed. As a
threshold matter, this court noted the split in the circuits
on the choice-of-pharmacy issue, including Burgess
I, but found the evidence presented did not raise a
tenable employee choice issue because the evidence and
testimony did not establish that the injured employees in
these cases made an affirmative choice of LB&J as their
prescription medication provider. Id. at 1117-18.
However, this court further found the choice-of-pharmacy
issue was not dispositive of the $750 cap issue:
Nor would resolution of the choice-of-pharmacy issue be
dispositive of the matters before the court. As we have
stated, these cases hinge on LSA-R.S. 23:1142(B)'s
admonition that a "health care provider may not incur
more than a total of seven hundred fifty dollars in
nonemergency diagnostic testing or treatment without the
mutual consent of the payor and the employee." In these
cases, we conclude hereinafter that the plaintiff/health care
providers did not have the consent of the payor, LUBA, even
if they had obtained the consent of the injured employees, to
dispense prescription medications after June 5, 2008.
Id. at 1118.
court found LUBA's authorization for the employees to
obtain medical treatment from LB&J physicians did not
encompass the dispensing of prescription medications by
LB&J. Specifically, this court reasoned:
Even though, prior to June 5, 2008, LUBA may have obligated
itself to reimburse the plaintiff/health care providers for
prescription medications dispensed to injured employee
patients during in-office medical treatment by LB & J
physicians, LUBA's June 5, 2008 letter notified LB &
J and its physicians that it would no longer pay for LB &
J dispensed prescription medications; therefore, any ongoing
consent to, or authorization of, in-office dispensing of
prescription medications by LB & J physicians was
Id. at 1119.
court limited LB&J's recovery to $750 of medication
costs after it was notified that it would not be reimbursed
for medications it dispensed. Id.
light of our decision in Lafayette Bone & Joint,
this court granted S&WB's writ application and
remanded the case to the court of appeal for reconsideration:
Writ granted. The case is remanded to the Court of Appeal for
re-briefing and reconsideration in accord with this
Court's decision in Lafayette Bone & Joint Clinic
v. Louisiana United Business SIF, et al c/w Lafayette Bone
and Joint Clinic v. Guy Hopkins Construction Co., Inc.,
et al., 15-2137 c/w 15-2138 (La. 6/29/16),
___ So.3d ___.
Burgess v. Sewerage & Water Board of New
Orleans, 16-0416 (La. 9/16/16), 206 So.3d 199.
remand from this court, the court of appeal reaffirmed its
original decision. Burgess v. Sewerage & Water Board
of New Orleans, 15-0918 (La.App. 4 Cir. 11/23/16), 204
So.3d 1014 ("Burgess II"). In particular,
the court of appeal found Lafayette Bone & Joint
was factually distinguishable from the instant case and thus
inapposite. 204 So.3d at 1016. As it did in Burgess
I, the court found in favor of the employee on the
choice-of-pharmacy issue. The court noted Lafayette Bone
& Joint involved physician-dispensed medication, a
factual situation within the scope of La. R.S. 23:1142(B),
whereas this case involved an outside pharmacy dispensing
medication. As such, the Burgess II court held that
the dispensing of prescription medication does not constitute
"nonemergency diagnostic testing or treatment" and
thus does not trigger the application of La. R.S. 23:1142(B).
Id. at 1016-18.
Lobrano again dissented based on reasons similar to those in
her original dissent regarding out-of-state providers.
Id. at 1018. (Lobrano, J., dissenting). Further,
because IWP is an out-of-state provider, she also found the
instant case distinguishable from Lafayette Bone &
Joint, which addressed the applicability of La. R.S.
23:1142(B) to instances in which an in-state provider of
pharmaceuticals incurred expenses without the consent of the
employer. Id. at 1019.
filed a second writ application with this court, which we
granted. Burgess v. Sewerage & Water Bd. of New
Orleans, 16-2267 (La. 2/24/17), ___ So.3d
case we are initially called upon 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. Our decision is premised on the
proper interpretation of parts of the LWCA. Such
considerations are questions of law and reviewed by this
court under a de novo standard of review.
Catahoula Par. Sch. Bd. v. Louisiana Mach. Rentals,
LLC, 12-2504 (La. 10/15/13), 124 So.3d 1065, 1071. After
our review, we "render judgment on the record, without
deference to the legal conclusions of the tribunals below.
This court is the ultimate arbiter of the meaning of the laws
of this state." Id.
employer's duty under the LWCA to furnish prescription
medication is set forth in La. R.S. 23:1203 ...