When it Comes to Statutes & Regulations, Words Matter

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Toms Sept 2017 Article on Supreme Court of Kentucky
It’s interesting how one word in a statute or regulation can make such a difference. Two supreme court cases from the high courts of Louisiana and Kentucky highlight this. Both statues were designed to set forth who has the choice of physician and choice of pharmacy. In other words, if a worker is injured, can he choose the primary treating physician? Can he choose the pharmacy from which to obtain prescription drugs?

The Supreme Court of Louisiana ruled, in Burgess v. Sewerage & Water Board of New Orleans, that the employer, not the injured worker, can choose the pharmacy for prescription drugs. Prior to this case, the lower courts in Louisiana had been split on the question, with the Second and Fourth Circuits allowing the injured worker to choose the pharmacy, while the Third and Fifth Circuits allowed the employer to choose the pharmacy.

Recently, the Supreme Court of Kentucky weighed in on the same issue and came to the opposite conclusion. In Kentucky, the injured worker, not the employer, has the choice of pharmacy. Interestingly, both cases involved the same “unauthorized pharmacy,” IWP. IWP is a mail order pharmacy based in Massachusetts.

In the Kentucky case, Rita Merrick worked for Family Allergy and Asthma Associates and suffered a back injury. Ms. Merrick went on to have lumber spine surgery. She received a medical card from Kentucky Employers Safety Association (KESA) that allowed her to purchase prescription drugs at specific local pharmacies at contracted prices. KESA informed Ms. Merrick that the pharmacy program was administered by Joseph Medical, and that KESA would only pay prescription bills submitted through the Joseph Medical program. But Ms. Merrick decided to get her prescriptions through IWP, stating that she had experienced hassles and delays with Joseph Medical. As a result, KESA sought a court order requiring Ms. Merrick to use Joseph Medical to get her prescriptions filled.

During Ms. Merrick’s case, four other cases involving similar facts were also ongoing. Each one involved an injured Kentucky worker who was unhappy with KESA’s choice of pharmacy provider, Joseph Medical, and sought to use other pharmacies, including IWP. These five cases were later consolidated, and the Supreme Court ruling encompasses all five cases.

The Supreme Court of Kentucky ruled that KRS 342.020 does not prohibit injured workers from choosing where they get their prescriptions filled, as the statute says injured workers get to choose their own “medical providers.” The court specifically said that “medical providers” included pharmacies. The court came to this conclusion by looking at the KRS 342.0011 section on definitions. In the definitions of medical services, “medical, surgical, dental, hospital, nursing and medical rehabilitation services, medicines, and fittings for artificial and prosthetic devices” are included. The court reasoned that since medicines are medical services, a pharmacist is a medical provider.

As stated earlier, the Supreme Court of Louisiana came to a different conclusion. That’s because that decision hinged on a difference in wording between the Kentucky and Louisiana statutes. The Louisiana law states that injured workers get to pick a “physician” and not a “provider.” The Louisiana Supreme Court reasoned that “physician is very specific,” and did not extend this definition to choice of pharmacy. The Supreme Court of Louisiana said that if the Louisiana Legislature had intended to allow an injured worker the choice of pharmacy, the Legislature could have put that in the statute.

The bottom line is that if you are a legislator or regulator, and you want injured workers to be able to choose the treating physician, but not choice of pharmacy, you need to specify “choice of physician” and not “choice of provider” as seen in Kentucky. Provider is more broad and has a higher likelihood of including a wider category of things, including “medical services,” which includes hospital, nursing, medical rehabilitation services, and pharmacies. The two cases highlight the fact that words are extremely important when drafting legislation. I have no doubt there were Kentucky regulators and system participants who thought that an injured worker getting to choose the provider meant only choosing the treating physician. But as we can see that is not how the Supreme Court of Kentucky saw it.

At UR Nation, we understand the Supreme Court of Kentucky’s reasoning, but we believe the end result is negative because employers will now have a harder time controlling the injured workers’ ability to “doctor shop” for opioids, benzodiazepines, and other addictive drugs, because the injured worker can choose the pharmacy.

Tom Swiatek

Tom Swiatek

As Assistant Vice President of Regulatory Services, General Counsel, and Editor in Chief of UR Nation, Tom Swiatek draws on his experience as an insurance attorney on both the general liability side, as well as on workers’ compensation matters. As a California Workers’ Compensation Section Member, Tom is leading the discussion with respect to the regulatory challenges and opportunities facing the workers’ compensation system.