Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Soileau v. Wal-Mart Stores, Inc.

Supreme Court of Louisiana

June 26, 2019

ELIZABETH SOILEAU
v.
WAL-MART STORES, INC.

          ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, THIRD CIRCUIT, OFFICE OF WORKERS' COMPENSATION, DISTRICT 4

          PER CURIAM.

         In this 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.

         FACTS AND PROCEDURAL HISTORY

         Elizabeth 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 pharmacy.

         In 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.

         Following 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.

         On 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."

         The 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.

         At the 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."

         Ms. 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.

         Upon 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.

         DISCUSSION

         Louisiana 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 added].

         The 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 premature).

         In the 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 business.
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.

         Nothing 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.

         In 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.

         We see 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.

         The 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.

         In the 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.

         Alternatively, 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 prematurity.

         However, 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' compensation cases").
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.

         We find 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.

         For the 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.

         In 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.

         The 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.

         In 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 actual dispute.

         In 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.

         DECREE

         For the 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.

         I disagree with the majority, which finds plaintiff's claim is premature and does not present a justiciable controversy. Thus, I must respectfully dissent.

         In 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. 23:1201(E)." Id.

         In this 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.

         The 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.

         In my 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.

         I 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 petition that:
(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 entitled.

(Emphasis added.)

         A 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.)

         In this 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 . . . ."

         The 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.[1] 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.

         Furthermore, 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."

         The per 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 . . . ."

         However, 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 seq."[2]

         Given 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).

         Accordingly, 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.

         In 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, [3] and 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 justiciable controversy.

         For 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.

         On the 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[4] may not incur more than a total of seven hundred fifty dollars in nonemergency diagnostic testing or treatment[5]without 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 amount.

         As a 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 expenses. Id.

         In 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)[6] and La. R.S. 23:1121, [7] thus broadening the employee's rights in contravention of La. R.S. 23:1020.1(D)."[8] 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 1027.

         The 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. 23:1020.1(D)(2).

         However, 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 other.").

         First, 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 . . . ."[9] (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] supplies."

         Furthermore, 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 provider.

(Emphasis added.)

         As 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 provider.[10]

         It is 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.

         The 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 injured employee.

         That 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 ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.