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Soileau v. Wal-Mart Stores, Inc.

Court of Appeals of Louisiana, Third Circuit

December 6, 2018

ELIZABETH SOILEAU
v.
WAL-MART STORES, INC.

          APPEAL FROM THE OFFICE OF WORKERS' COMPENSATION - # 4 PARISH OF EVANGELINE, NO. 10-04116 ADAM C. JOHNSON, WORKERS' COMPENSATION JUDGE

          Michael B. Miller Jacqueline K. Becker Attorneys at Law Post Office Drawer 1630 Crowley, LA COUNSEL FOR PLAINTIFF-APPELLANT Elizabeth Soileau

          Keith J. Landry Allen & Gooch, A Law Corporation COUNSEL FOR DEFENDANT-APPELLEE Wal-Mart Associates, Inc. and/or Wal-Mart Stores, Inc. D/B/A Wal-Mart Stores, Inc. and/or All Its Subsidiaries and Affilliates

          Court composed of Sylvia R. Cooks, John D. Saunders, Marc T. Amy, and Elizabeth A. Pickett, John E. Conery, Judges.

          ELIZABETH A. PICKETT JUDGE

         A workers' compensation claimant appeals a judgment that allows her employer to require her to use a pharmacy it owns and operates for all of her prescription needs. For the following reasons, we reverse the judgment.

         FACTS

         In June 2008, Elizabeth Soileau was injured in the course and scope of her employment with Wal-Mart Stores, Inc. In September 2016, Ms. Soileau obtained a judgment against Wal-Mart ordering that she "is entitled to prescriptions of Hydrocodone, Lyrica, Celebrex, and Voltaren gel." The following June, the supreme court decided Burgess v. Sewerage & Water Board of New Orleans, 16-2267 (La. 6/29/17), 225 So.3d 1020, in which it held that Louisiana workers' compensation laws do not allow an employee to choose the pharmacy she wants to use for her prescription needs. Two months later, Wal-Mart notified Ms. Soileau that she could no longer use the pharmacy she was using for her prescriptions and that she could only use "a Wal-Mart or Sam's Club Pharmacy" for her future prescriptions needs.

         After Wal-Mart failed to fill two of the prescriptions that are the subject of the September 2016 judgment, Ms. Soileau filed a motion seeking to compel Wal-Mart to designate a pharmacy other than Wal-Mart or Sam's Club for her prescriptions. She acknowledged in her motion that the Burgess decision authorized Wal-Mart to require her to use a specific pharmacy but argued that Wal-Mart's requirement that she use only pharmacies it owns and operates exceeds the scope of Burgess for a number of reasons, e.g., it created a conflict of interest for pharmacy personnel between its employer and her.

         Wal-Mart opposed Ms. Soileau's motion, arguing that Burgess does not restrict an employer's authority to designate a pharmacy, that any problems Ms. Soileau experiences with Wal-Mart or Sam's Club pharmacy services can be addressed under La.R.S. 23:1201(E), and that she previously used its pharmacy for her prescription needs. For reasons urged by Wal-Mart, the workers' compensation judge (WCJ) denied Ms. Soileau's motion.

         Ms. Soileau filed a writ application with this court, seeking reversal of the WCJ's judgment. This court denied the writ application, finding the judgment "addresse[d] the merits of the only remaining matters" pending before the workers' compensation court and instructed Ms. Soileau to comply with the rules applicable to appeals. Ms. Soileau then appealed the WCJ's judgment.

         ASSIGNMENTS OF ERROR

         In her sole assignment of error, Ms. Soileau urges that "[t]he [WCJ] erred in expanding the application of Burgess v. Sewerage & Water [Board] of New Orleans, 16-2267 (La. 6/29/2017), 225 So.3d 1020, to allow an employer to force its employee in a workers' compensation case to receive pharmaceutical treatment at its own facility."

         DISCUSSION

         Is a ...


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