The Supreme Court of Louisiana Gives Choice of Pharmacy to Employers

| | Evidence Based Medicine, Utilization Review

In Burgess v. Sewerage, the Supreme Court of Louisiana handed down an opinion that UR Nation believes is a big win for system participants. In the case, Darvel Burgess sustained a work-related neck and back injury in 2008 while working for Sewerage & Water Board of New Orleans (S&WB) as a maintenance technician. In 2011, S&WB notified Burgess that it was now using Corvel Caremark Pharmacy and that all future medications would need to be obtained through the Corvel Caremark Pharmacy.

On October 18, 2011, Burgess signed the letter of acknowledgement that he would adhere to the S&WB pharmacy policy. S&WB also sent a letter to IWP, Burgess’ choice of pharmacy. The letter said IWP was not an approved pharmacy that that payment for future prescriptions would be denied. Burgess continued to obtain prescription medication from IWP and on September 21, 2012 filed a disputed claim for compensation against S&WB and sought reimbursement and penalties against S&WB for pharmacy bills owed to IWP.

The Supreme Court of Louisiana held that the employer, not the injured worker, gets to choose the pharmacy to furnish necessary prescription drugs. Prior to this case, the lower courts in Louisiana had been split on the question, with the Second and Fourth Circuits allowing an injured worker to choose the pharmacy, while the Third and Fifth Circuits allowed the employer to choose the pharmacy. The Supreme Court reasoned that La. R.S. 23:1121(B)(1) specifically states that the employee has the right to select one treating physician. But that selection does not extend to choice of pharmacy, as the legislature did not provide that in La. R.S. 23:1203(A).

The Supreme Court reasoned that unlike a patient’s personal relationship with his doctor, there is no meaningful difference relative to which pharmacy is used to dispense prescriptions. The court also reasoned that there were protections in place, including La. R.S. 23:1201(E), should the employer cause unreasonable delays or other deficiencies in filling prescriptions through the employer-chosen pharmacy.

The Supreme Court of Louisiana also held that pharmacies are subject to the $750 cap found in La. R.S. 23:1142(B) that requires a health care provider to have the consent of the employer and payer in order to receive payment in excess of $750 for non-emergency care. This affirms the Louisiana Supreme Court’s 2016 ruling in Lafayette Bone & Joint Clinic v. SIF.  The Supreme Court reasoned that while the statutory language did not expressly include a reference to prescription medication, the word “treatment” in La. R.S. 23:1142(B) was sufficiently broad to include pharmacy dispensing of prescription medication.

Again, we at UR Nation believe this decision is big win for Louisiana system participants. We also believe this is a good decision because the employer controlling the choice of pharmacy further restricts an injured worker’s ability to “doctor shop” for opioids, benzodiazepines, and other addictive and potentially dangerous drugs.

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.