WRIT OF CERTIORARI TO THE COURT OF APPEAL, THIRD CIRCUIT,
OFFICE OF WORKERS' COMPENSATION, DISTRICT 4
workers' compensation matter, we are presented with the
question of whether an employee's motion to compel her
employer to choose a pharmacy other than the pharmacy at its
retail stores to fill her prescriptions is premature in the
absence of any claim that she has not been furnished proper
medical attention or that there have been delays or
deficiencies in filling prescriptions. For the reasons that
follow, we find the matter is premature and does not present
a justiciable controversy. We therefore vacate the judgment
of the court of appeal.
AND PROCEDURAL HISTORY
Soileau filed a disputed claim for workers' compensation
benefits alleging she injured her right arm and hand in the
course and scope of her employment with Wal-Mart Stores, Inc.
("Wal-Mart"). Pursuant to a 2012 consent judgment,
Ms. Soileau received medical treatment, including
prescriptions, some of which she filled at a Wal-Mart
2016, Ms. Soileau obtained a judgment against Wal-Mart
ordering that she was entitled to receive certain
prescriptions, as prescribed by her physician. Ms. Soileau
began filling her prescriptions at Falcon Pharmacy.
this court's opinion in Burgess v. Sewerage &
Water Board of New Orleans, 16-2267 (La. 6/29/17), 225
So.3d 1020, which held the choice of pharmacy belongs to the
employer, Wal-Mart notified Ms. Soileau in writing that she
could only use "a Wal-Mart or Sam's Club
Pharmacy" for her future prescriptions needs. Wal-Mart
further advised Ms. Soileau it would not issue reimbursement
for medications dispensed to Wal-Mart workers'
compensation patients from any pharmacy other than a Wal-Mart
or Sam's Club Pharmacy.
August 18, 2017, Ms. Soileau filed a "Motion to
Compel." In the motion, she alleged "Wal-Mart is
refusing to approve or authorize medications anywhere other
than Wal-Mart" and she "should not be forced to
obtain medications from her employer directly and cannot go
without her medication."
motion proceeded to a hearing before the Office of
Workers' Compensation ("OWC"). At the hearing,
Ms. Soileau testified that in September 2017 (after she filed
her motion), Wal-Mart's pharmacy denied two of her
workers' compensation prescriptions, but admitted she had
no written documentation of the denial.
conclusion of the hearing, the workers' compensation
judge denied Ms. Soileau's motion to compel, finding that
Wal-Mart had the right to choose the pharmacy at its retail
stores to fill Ms. Soileau's prescriptions. However, the
workers' compensation judge explained that in the event
Ms. Soileau experienced any delays or deficiencies in the
filling of her prescriptions, she "has a remedy under
Louisiana Revised Statute 23:1201E."
Soileau appealed. A divided panel of the court of appeal
reversed, finding that a conflict of interest would be
created if Wal-Mart were permitted to designate its own
pharmacy as the only pharmacy Ms. Soileau could use for her
workers' compensation prescriptions. Two judges
dissented, one of whom found the matter was premature.
Soileau v. Wal-Mart Stores, Inc., 2018-284 (La.App.
3 Cir. 12/6/18), 260 So.3d 688.
Wal-Mart's application, we granted certiorari to consider
the correctness of this decision. Soileau v. Wal-Mart
Stores, Inc., 2019-0040 (La. 3/6/19), 266 So.3d 904.
Revised Statute 23:1314 provides, in pertinent part:
A. The presentation and filing of the petition under R.S.
23:1310.3 shall be premature unless it is
alleged in the petition that:
(2) The employee has not been furnished the proper
medical attention, or the employer or insurer has
not paid for medical attention furnished. . . . [emphasis
purpose of this provision is to provide for dismissal of a
claim as premature based on the failure to make allegations
which are essential under the statute. Romero v. State
Farm Fire & Cas. Co., 452 So.2d 382, 384 (La.App.
3rd Cir. 1984). See also Jim Walter Homes v.
Long, 2002-0950 (La.App. 4 Cir. 12/18/02), 835 So.2d
877, 879 (explaining that in the absence of compliance with
the requirements of La. R.S. 23:1314, the claim was
instant case, Ms. Soileau's August 18, 2017 "Motion
to Compel" states, in pertinent part:
When Ms. Soileau attempted to refill her prescriptions for
her work injury at Falcon Pharmacy, Wal-Mart rejected her
medications, indicating that Mr. [sic] Soileau would have to
refill her medications at her employer's place of
Wal-Mart is refusing to approve or authorize medications
anywhere other than Wal-Mart and Ms. Soileau requests an
expedited hearing concerning this issue as Ms. Soileau should
not be forced to obtain medications from her employer
directly and cannot go without her medication.
in this motion alleges that Wal-Mart refused to furnish Ms.
Soileau with the proper medical attention, as required by La.
R.S. 23:1314. Rather, the motion simply alleges Wal-Mart was
"refusing to approve or authorize medications anywhere
other than Wal-Mart. . . ." [emphasis added]. The
obvious implication of this language is that Wal-Mart would
approve medication through its own pharmacy.
brief to this court, Ms. Soileau asserts La. R.S. 23:1314 is
inapplicable because it is limited to the initiation of a
claim. Ms. Soileau contends her current motion to compel was
simply a continuation of her original claim filed in 2012.
no merit to this argument. The language of La. R.S. 23:1314
makes reference to La. R.S. 23:1310.3, which provides:
A. A claim for benefits, the controversion of entitlement to
benefits, or other relief under the Workers' Compensation
Act shall be initiated by the filing of the appropriate form
with the office of workers' compensation administration.
Mailing, facsimile transmission, or electronic transmission
of the form and payment of the filing fee within five days of
any such mailing or transmission constitutes the initiation
of a claim under R.S. 23:1209.
term "claim" is nowhere defined in the Workers'
Compensation Act. Ross v. Highlands Ins.
Co., 590 So.2d 1177, 1181 (La. 1991). However, we have
determined it is clear from the context of provisions that
the term refers to a claim for relief, not the enforcement of
a judgment. Id. A claim is initiated by the filing
of a petition with the OWC once an issue surfaces which the
parties cannot themselves resolve. Id.
case at bar, Ms. Soileau is not seeking to enforce a judgment
stemming from her earlier claim, but is instead seeking new
relief in the form of an order requiring Wal-Mart to permit
her to use a pharmacy other than its own. Because the parties
are unable to resolve this issue on their own, Ms. Soileau is
required to file a new claim to seek such relief.
Ms. Soileau submits Wal-Mart waived its right to assert
prematurity by failing to file a dilatory exception of
prematurity as required by La. Code Civ. P. art. 928. Ms.
Soileau's argument finds some support in Wilson v.
St. Mary Community Action, 2000-2106 (La.App. 1 Cir.
12/28/01), 803 So.2d 1106, 1111-12, in which the court of
appeal held that the defendants waived their right to assert
prematurity under La. R. S 23:1314 because they failed to
file a timely dilatory exception raising the objection of
the court in Dow v. Chalmette Restaurant, Ltd.,
2015-0336 (La.App. 4 Cir. 5/18/16), 193 So.3d 1222, 1230-31,
rejected this reasoning, explaining:
The workers' compensation statute expressly provides that
a workers' compensation judge "is not bound by the
technical rules of evidence or procedure other than as herein
provided." La. R.S. 23:1317(A). See also Mitchell v.
Accent Constr. Co., 00-0996, p. 2 (La.App. 4 Cir.
3/14/01); 785 So.2d 864, 866 ("the technical rules of
the Code of Civil Procedure do not apply to workers'
Thus, in determining the issue of prematurity under La. R.S.
23:1314, workers' compensation judges are not bound by
the articles in the Louisiana Code of Civil Procedure
requiring the filing of an exception of prematurity prior to
or with the filing of the Answer.
Dow is correctly reasoned. Nothing in La. R.S.
23:1314 requires the issue of prematurity to be raised in any
specific way. Accordingly, we hold the general provisions of
the Code of Civil Procedure in inapplicable in this context.
Any jurisprudence to the contrary is hereby overruled.
same reasons, we reject Ms. Soileau's argument that she
expanded her pleadings by testifying at the hearing on the
motion that Wal-Mart's pharmacy failed to fill two of her
workers' compensation prescriptions. While there is
general codal authority in La. Code Civ. P. art. 1154 for
expansion of pleadings through introduction of evidence, La.
R.S. 23:1314 uses very specific language, stating that the
filing of the petition shall be premature unless certain
allegations are made "in the petition." This clear
language excludes any tacit or implied expansion of the
allegations outside of the petition itself.
addition to being premature from a procedural standpoint, we
further find this case does not present a justiciable
controversy for our review. We have defined a justiciable
controversy as "an existing actual and substantial
dispute, as distinguished from one that is merely
hypothetical or abstract, and a dispute which involves the
legal relations of the parties who have real adverse
interests, and upon which the judgment of the court may
effectively operate through a decree of conclusive
character." Abbott v. Parker, 259 La. 279, 249
So.2d 908, 918-19 (1971). A justiciable controversy must
"be a real and substantial controversy admitting of
specific relief through a decree of a conclusive character,
as distinguished from an opinion advising what the law would
be upon a hypothetical state of facts." St. Charles
Parish School Board. v. GAF Corp., 512 So.2d 1165, 1171
(La. 1987) (on rehearing). In order to avoid deciding
abstract, hypothetical or moot questions, courts require that
cases submitted for adjudication be justiciable, ripe for
decision, and not brought prematurely. Id.
arguments presented by Ms. Soileau demonstrate convincingly
that no real and actual dispute has been presented in this
matter. Rather, her arguments focus on abstract harm she
might suffer in the future if Wal-Mart is permitted to
restrict her to its own pharmacy. The injury resulting from
this purported conflict of interest is not based on any
actual facts or occurrences; rather, she asks the court to
assume that she will suffer harm if certain hypothetical
facts occur. We decline to render an advisory opinion based
on facts which may or may not occur at some unspecified time
in the future.
reaching this result, we do not mean to imply Ms. Soileau is
without any remedy. As we have explained, "[i]f an
injured employee experiences any delays or other discernable
deficiencies in filling his prescriptions through the
employer-chosen pharmacy, constituting a violation of the
employer's duty under La. R.S. 23:1203(A), the employee
has a remedy for penalties pursuant to La. R.S.
23:1201(E)." Burgess, 225 So.3d at 1028. In
such a case, the matter can be resolved in the context of an
summary, we find the OWC reached the correct result in
denying Ms. Soileau's motion to compel. Because the
motion to compel was premature and does not present a
justiciable controversy, the court of appeal erred in
expressing any opinion on the merits of the motion.
Accordingly, we will vacate the judgment of the court of
appeal and reinstate the judgment of the OWC dismissing the
motion to compel.
reasons assigned, the judgment of the court of appeal is
vacated and set aside. The judgment of the Office of
Workers' Compensation dismissing the Motion to Compel
filed by Elizabeth Soileau is hereby reinstated.
JOHNSON, Chief Justice, dissents and assigns reasons.
disagree with the majority, which finds plaintiff's claim
is premature and does not present a justiciable controversy.
Thus, I must respectfully dissent.
Burgess v. Sewerage & Water Bd. of New Orleans,
16-2267 (La. 6/29/17), 225 So.3d 1020, this court held that a
worker's compensation claimant does not have a right to
choose a specific pharmaceutical provider under the LWCA.
However, this court also made clear that the claimant has
protections under the law to ensure that the employer
satisfies its obligations under La. R.S. 23:1023, which
includes the obligation to furnish necessary drug treatment.
Id. at 1028. Specifically, this court held that
"if an injured employee experiences any delays or other
discernable deficiencies in filling his prescriptions through
the employer-chosen pharmacy, constituting a violation of the
employer's duty under La. R.S. 23:1203(A), the employee
has a remedy for penalties pursuant to La. R.S.
case, it is undisputed, and the record reflects, that Ms.
Soileau obtained a judgment against Wal-Mart on September 13,
2016, entitling her "to prescriptions of Hydrocodone,
Lyrica, Celebrex, and Voltaren gel prescribed by Dr.
Blanda…." On August 10, 2017, following this
court's decision in Burgess, Wal-Mart's
workers' compensation administrator advised Ms. Soileau
that all prescriptions for Wal-Mart workers' compensation
patients must be filled at a Wal-mart or Sam's Club
pharmacy. During the hearing on her motion to compel on
October 27, 2017, Ms. Soileau testified regarding problems
she was experiencing with the Wal-Mart pharmacy.
Specifically, Ms. Soileau testified that her physician faxed
four prescriptions to the Wal-Mart pharmacy on September 12,
2017. On September 20, 2017, two of the prescriptions
(Lortab/hydrocodone and generic Voltaren) were filled. She
testified that the other two prescriptions to which she was
entitled were not approved by Wal-Mart.
majority of this court finds Ms. Soileau's case
premature, reasoning that she was not seeking to enforce a
judgment stemming from her earlier claim, but rather she was
seeking new relief requiring Wal-Mart to choose another
pharmacy other than its own. The majority acknowledges Ms.
Soileau does have an available remedy in the form of
penalties, but essentially finds Ms. Soileau is required to
file a new claim to seek such relief.
view, the majority opinion creates an unreasonable burden for
a claimant such as Ms. Soileau. Ms. Soileau has already
obtained a judgment providing that she is entitled to certain
prescription medications. Ms. Soileau testified during the
hearing regarding problems she has experienced getting these
prescription medications approved and filled by
Wal-Mart's choice of pharmacy. To require Ms. Soileau to
initiate another claim under these circumstances is onerous,
needless, and runs afoul of principles of judicial economy.
For these reasons, I respectfully dissent.
HUGHES, J., dissenting.
respectfully dissent from the per curiam in this case ruling
that the injured employee/plaintiff's claim is premature
since she failed to allege that she had "not been
furnished proper medical attention" or that there had
been "delays or deficiencies in filling
prescriptions," and further holding that no justiciable
controversy has been presented. The per curiam concludes that
the appellate court erred in reversing the denial by the
Office of Workers' Compensation Administration
("OWC") of the plaintiff's motion to compel
Wal-Mart to designate a pharmacy other than Wal-Mart or
Sam's Club for her prescriptions.
The per curiam relies on Paragraph (A) of La. R.S. 23:1314,
entitled "Necessary allegations; dismissal of premature
petition; dispute of benefits," which provides:
The presentation and filing of the petition under R.S.
23:1310.3 shall be premature unless it is alleged in the
(1) The employee or dependent is not being or has not been
paid, and the employer has refused to pay, the maximum
percentage of wages to which the petitioner is entitled under
this Chapter; or
(2) The employee has not been furnished the proper
medical attention, or the employer or insurer has not
paid for medical attention furnished; or
(3) The employee has not been furnished copies of the reports
of examination made by the employer's medical
practitioners after written request therefor has been made
under this Chapter; or
(4) The employer or insurer has not paid penalties or
attorney's fees to which the employee or his dependent is
reading of the entirety of Paragraph (A), along with the
statutory provision cited therein, La. R.S. R.S. 23:1310.3,
entitled "Initiation of claims; voluntary
mediation; procedure," which states in pertinent part:
"A claim for benefits, the controversion of entitlement
to benefits, or other relief under the Workers'
Compensation Act shall be initiated by the filing of
the appropriate form with the office of workers'
compensation administration . . .," leads to the
conclusion that both La. R.S. 23:1314 and La. R.S. 23:1310.3
address the "initiation" of an action before the
OWC by "filing of the petition." (Emphasis added.)
case, when the injured employee/plaintiff filed a motion to
compel with the OWC, she filed this pleading into an existing
OWC proceeding; therefore, La. R.S. 23:1314 and La. R.S.
23:1310.3 would not be applicable. An ongoing OWC proceeding
is governed by La. R.S. 23:1310.8, entitled
"Jurisdiction continuing; determining as to final
settlement," which provides: "The power and
jurisdiction of the workers' compensation judge over each
case shall be continuing and he may, upon application by a
party and after a contradictory hearing, make such
modifications or changes with respect to former findings or
orders relating thereto if, in his opinion, it may be
justified . . . ."
existing proceeding, into which the plaintiff filed her
August 18, 2017 motion to compel "Wal-Mart to select and
approve her work related medications at a pharmacy other than
Wal-Mart Stores, Inc." (as stated in the OWC judgment on
the motion), had previously resulted in a September 13, 2016
OWC judgment entitling the plaintiff to prescriptions of
Hydrocodone, Lyrica, Celebrex, and Voltaren gel, as
prescribed by her treating physician, Dr.
Blanda. It is undisputed that the plaintiff's
motion to compel sought a ruling only on the issue of whether
she was entitled to have her employer, Wal-Mart, authorize
the filling of her prescriptions at a pharmacy Wal-Mart does
not own (in other words, whether the employer has a conflict
of interest in requiring the use of its own pharmacy). As
this issue relates to the circumstances under which the
prescriptions, previously ordered reimbursable by the OWC,
are to be provided to the plaintiff, she has the right to
present the dispute to the OWC pursuant to the OWC's
continuing jurisdiction under La. R.S. 23:1310.8.
the OWC judge obviously did not believe the motion was
premature, since he did not rule that the motion to compel
was premature under Paragraph (C) of La. R.S. 23:1314, which
provides: "The workers' compensation judge shall
determine whether the petition is premature and must be
dismissed before proceeding with the hearing of the other
issues involved with the claim." Nor was there any
indication that Wal-Mart raised the prematurity of the
plaintiff's motion to compel before the OWC. In fact, the
plaintiff asserts in brief to this court that "Wal-Mart
filed a memorandum in opposition to the motion and never
filed an exception of Prematurity."
curiam holds that "[n]othing in La. R.S. 23:1314
requires the issue of prematurity to be raised in any
specific way," and further states: "[W]e hold the
general provisions of the Code of Civil Procedure . . .
inapplicable in this context. Any jurisprudence to the
contrary is hereby overruled." In so ruling, the per
curiam relies on La. R.S. 23:1317, providing, "The
workers' compensation judge shall not be bound by
technical rules of evidence or procedure other than as herein
provided . . . ."
Paragraph (C) of La. R.S. 23:1310.1 states that the OWC
assistant secretary "shall have the authority to adopt
reasonable rules and regulations, including the rules of
procedure before the workers' compensation judges,
according to the procedures established by the Administrative
Procedure Act," and further requires that "[a]ll
rules and regulations, properly approved and promulgated
under the Administrative Procedure Act, shall be consistent
with the Workers' Compensation Law and shall be
binding in the administration of that law."
(Emphasis added.) In accordance with that authority, the OWC
has enacted over 300 workers' compensation regulations,
including La. Admin. Code, Title 40, Part I, §5801,
stating that "[t]he pleadings allowed in workers'
compensation claims, whether in a principal or incidental
action, shall be in writing and shall consist of petitions,
exceptions, written motions, answers, and Office of
Workers' Compensation Administration forms"
(emphasis added), and La. Admin. Code, Title 40, Part I,
§5823, which states that "[e]xceptions shall be
governed by Code of Civil Procedure Articles 921, et
the express OWC regulations requiring that exceptions must be
in writing and are to be governed by the Code of Civil
Procedure, such is the law governing the parties before the
OWC. As stated in La. C.C.P art. 926(A), "[t]he
objections which may be raised through the dilatory exception
include . . . [p]rematurity . . . ." Further, Paragraph
(B) of Article 926 states that "[a]ll objections which
may be raised through the dilatory exception are waived
unless pleaded therein." Furthermore, this court has
previously held that "[a] court may not raise a dilatory
exception sua sponte; indeed, 'All objections which may
be raised through the dilatory exception are waived unless
pleaded therein.'" Moreno v. Entergy
Corporation, 10-2268, pp. 2-3 (La. 2/18/11), 64 So.3d
761, 762 (per curiam).
since Wal-Mart did not raise the prematurity of the
plaintiff's motion to compel in the OWC, instead only
raising prematurity on appellate review, the applicable law
and jurisprudence would deem any objection by Wal-Mart based
on prematurity waived.
addition, the per curiam in this case states that the
plaintiff's motion to compel does not present a
justiciable controversy since she has not
"demonstrate[d] convincingly" that there is a
"real and actual dispute" as her arguments focus
only on "abstract harm she might suffer in the future if
Wal-Mart is permitted to restrict her to its own
pharmacy." Although citing the applicable law on whether
a lawsuit presents a justiciable controversy, the per curiam
nevertheless misapplies the law to find a lack of justiciable
controversy merely because it does not find the
plaintiff's arguments convincing. The controversy between
these parties is adverse - each wants to be the party who has
the right to choose the health care providers in this case
(the plaintiff because she wants to be in control of her
health care choices, as not being able to choose her
prescription medication provider may have real consequences,
the defendant because it wants to control costs of treatment
it has to pay for); a judgment can be granted which gives one
party or the other the relief they have requested; and this
is an actual dispute, not merely an abstract legal argument.
Simply because one side is more likely to prevail over the
other does not for that reason alone mean there is no
these reasons, I dissent from the per curiam rulings that the
plaintiff's motion to compel was premature when filed in
the OWC and did not present a justiciable controversy.
merits of the matter asserted in the plaintiff's motion
to compel, I agree with the appellate court that a conflict
of interest arises when an injured employee's employer
appoints itself as a health care provider for the injured
employee, without the agreement of the employee. It is also
contrary to the policy expressed in La. R.S. 23:1142,
providing that "each health care provider may not incur
more than a total of seven hundred fifty dollars in
nonemergency diagnostic testing or treatmentwithout the
mutual consent of the payor and the employee .
. . ." (Emphasis added.) Section 1142 allows an employee
to consent to and obtain nonemergency diagnostic testing or
treatment, without a payor's consent, when the amount
does not exceed $750; however, when the amount exceeds $750
both the payor and the employee must consent. Importantly,
the consent of the employee is required, regardless of
dissenter to this court's decision in Burgess v.
Sewerage & Water Board of New Orleans, 16-2267 (La.
6/29/17), 225 So.3d 1020, I believe the court should
re-examine the position stated therein. Although La. R.S.
23:1203(A) delineates the obligation of an employer to
"furnish" an injured worker "all necessary
drugs, supplies, hospital care and services, medical and
surgical treatment, and any nonmedical treatment recognized
by the laws of this state as legal," this statutory
language does not necessarily give the employer the right to
choose a pharmacy for the employee's use, and this court
should not by "judicial edict" declare that
"the choice of pharmacy in a workers' compensation
case belongs to the employer" when the legislature has
not evidenced the intent to delegate such authority to the
employer. Id. (Genovese, J., dissenting). Justice
Genovese noted that the key word in La. R.S. 23:1203 is
"furnish," which carries the dictionary definition
of "to provide" or "to supply," and while
the use of "furnish" could be literally
interpreted to mean the employer itself would have to provide
or supply necessary prescription medication directly to the
employee, it is not the clear intent of the legislature to
allow an employer to dictate the employee's drug
provider. Id. As Justice Genovese stated,
"furnish" should be construed, for purposes of
Workers' Compensation Law, to mean "to be
responsible for" the payment of prescription medication
Burgess, this court held that "the employer has the
right to choose the pharmacy to furnish necessary
prescription drugs to an injured employee in a workers'
compensation case." Burgess v. Sewerage & Water
Board of New Orleans, 16-2267 at p. 9, 225 So.3d at
1026. In so holding, this court reasoned that "[t]o
extend the legislatively-granted employee choice of treating
physician to include the choice of pharmacy can only be
accomplished by giving an impermissibly expansive reading to
the provisions of La. R.S. 23:1203(A) and La. R.S. 23:1121,
thus broadening the employee's rights in contravention of
La. R.S. 23:1020.1(D)." Id., 16-2267 at p. 13,
225 So.3d at 1028. The Burgess opinion further stated:
"Had the legislature intended the employee to have the
choice of pharmaceutical provider in La. R.S. 23:1203(A), the
legislature could have easily provided for that choice as it
provided for the choice of physician in La. R.S.
23:1121." Id., 16-2267 at p. 10, 225 So.3d at
reasoning of the Burgess opinion seems to imply that the
resolution of the question of who has the right to choose a
particular health care provider (other than a treating
physician in any field or specialty, who the injured employee
has the express right to choose under La. R.S. 23:1121) must
be binary and fixed in every case - either the employee
always chooses or the employer always chooses. Under such a
scenario and after Burgess, the employer will have the right
to choose every imaginable type of heath care provider for an
injured employee's treatment, except his or her treating
physician in any field or specialty. The effect of Burgess in
this regard is clearly a "broaden[ing]" of
Workers' Compensation Law, in violation of La. R.S.
23:1020.1(D)(3), and the Burgess resolution favors the
employer over the employee, in violation of La. R.S.
instead of presenting a simple binary choice, the failure of
the Legislature to designate an express right, in either the
employer or the employee, to choose a health care provider
(in any case except a treating physician in any field or
specialty, pursuant to La. R.S. 23:1121) appears to be an
intentional omission, which under the detailed Workers'
Compensation statutory and regulatory framework allows for
greater flexibility, depending upon the particular facts and
circumstances of each case. Such a construction is more in
keeping with the policy considerations set forth in La. R.S.
23:1020.1(D)(1), (2), and (3) - that each workers'
compensation case be decided on its own merits; that
workers' compensation laws be construed in accordance
with the basic principles of statutory construction and not
in favor of either employer or employee; and that if the
workers' compensation statutes are to be liberalized,
broadened, or narrowed, such actions shall be within the
exclusive purview of the legislature. See also La.
C.C. art. 10 ("When the language of the law is
susceptible of different meanings, it must be interpreted as
having the meaning that best conforms to the purpose of the
law."); La. C.C. art. 12 ("When the words of a law
are ambiguous, their meaning must be sought by examining the
context in which they occur and the text of the law as a
whole."); La. C.C. art. 13 ("Laws on the same
subject matter must be interpreted in reference to each
it should be noted that La. R.S. 23:1203(B) declares:
"The obligation of the employer to
furnish such care, services, treatment, drugs,
and supplies, whether in state or out of state, is
limited to the reimbursement . . . ." (Emphasis added.)
In addition, La. R.S. 23:1020.1(B) provides: "The
legislature declares that the purpose of this Chapter
[Chapter 10. Workers' Compensation] is all of the
following: . . . (2) To pay the medical expenses
that are due to all injured workers pursuant to this
Chapter." (Emphasis added.) Providing
"reimbursement" and being required "to
pay" for an injured worker's "care, services,
treatment, drugs, and[/or] supplies" involve the concept
of providing funding for the medical expenses,
rather authorizing the payor to procure the needed
"care, services, treatment, drugs, and[/or]
La. R.S. 23:1142, entitled "Approval of health care
providers; fees," provides in Paragraph (B)(1)(a):
Except as provided herein, each 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 as provided
by regulation. Except as provided herein, that portion
of the fees for nonemergency services of each health care
provider in excess of seven hundred fifty dollars shall not
be an enforceable obligation against the employee or the
employer or the employer's workers' compensation
insurer unless the employee and the payor have agreed upon
the diagnostic testing or treatment by the health care
indicated hereinabove, a plain reading of La. R.S.
23:1142(B)(1)(a) indicates a legislative intent to authorize
an injured employee to obtain $750 in "nonemergency
diagnostic testing or treatment" from a "health
care provider" without the consent of the
"payor." A "health care provider" is
defined by LSA-R.S. 23:1021(6) to include a
"pharmacist," and "treatment" includes
"medications," as indicated hereinabove.
Conversely, La. R.S. 23:1142(B)(1)(a) only authorizes
nonemergency treatment, in excess of $750, if the
employee and the payor have agreed upon the diagnostic
testing or treatment by the health care
not logical to suppose that, after the Legislature has
authorized, in La. R.S. 23:1142(B), the injured employee to
choose, without the consent of the payor, the health care
provider(s) for purposes of the first $750 in treatment, that
beginning with the 751st dollar of treatment and thereafter,
choice of the health care provider of medications (the
pharmacy or pharmacist) would switch to the payor, who would
thereafter have the option of choosing the pharmacy,
requiring at the payor's whim that the injured employee
move his prescription(s) to a different pharmacy. The only
requirement expressly imposed by La. R.S. 23:1142 on the
751st dollar of treatment and thereafter is that the injured
employee and the payor must have "agreed upon the
diagnostic testing or treatment by the health care
provider." (Emphasis added.) The statute does not
expressly require that the employee and the payor agree on
who is to provide the "diagnostic testing or
treatment"; agreement is apparently only required as to
the propriety of the testing or treatment itself.
wording of La. R.S. 23:1142 lends itself more to the
implication that "the health care provider"
continues to be the one selected by the injured employee,
rather than to allowing the employer/payor to change an
initial selection of a health care provider made by an
the Legislature intended the payor and the employee to
resolve by consent issues related to diagnostic testing and
treatment by a health care provider is reinforced by the
passage of 2012 La. Acts, No. 235, through which the
Legislature added the following provisions to R.S. 23:1142:
(A) ... (2) "Utilization review company" shall mean
the company or entity which contracts with the payor, and
which entity reviews the claimant's medical records and
information and makes the determination of medical necessity
in accordance with this Chapter, for the purposes of
assisting the payor with the authorization of the