In October 2008, Darvel Burgess sustained an injury while on the job. As a result of that injury, Burgess filled his prescriptions at the pharmacy of his choice. Unfortunately, his employer, the Sewerage & Water Board of New Orleans (S&WB), failed to reimburse him for those prescription costs. Therefore, Burgess filed a Disputed Claim for Compensation against S&WB seeking to recover money for medical bills and an outstanding $13,110.02 for Injured Workers Pharmacy (“IWP”) for prescription medications prescribed by his doctor.
S&WB argued it was not responsible for the outstanding prescription medications bill, according to La. R.S. 23:1142(B) because it notified all injured workers of their pharmacy, Covel Caremark Pharmacy. S&WB stated this was the approved provider for prescription services, and if an employee failed to use this provider, they might not pay for prescriptions. S&WB also notified IWP that it was not an approved pharmacy for workers’ compensation purposes.
Burgess argued he was allowed to select his pharmacy as stated in La. R.S. 23:1203(A). That statute provides “the employer shall furnish all necessary drugs, … medical and surgical treatment, … recognized by the laws of this state as legal, and shall utilize such state, federal, public, or private facilities as will provide the injured employee with such necessary services.” He argued that the unpaid bills were related to treatment for his work-related injury.
The OWC Judge ultimately found for Mr. Burgess and ordered S&WB to pay the outstanding bill to IWP according to the fee schedule and awarding attorneys fees and penalties. The Court of Appeals affirmed this decision, stating that the choice of pharmacy belongs to the employee, relying on La. R.S. 23:1203(A).
The Courts in Louisiana were split on the choice of pharmacy issue for work-related accidents. However, the Supreme Court of Louisiana is not quick to interpret the statute to mean that the employer must pay for any pharmacy the employee elects to use. Instead, the Court looked to Lafayette Bone & Joint Clinic v. Louisiana United Business SIF, wherein the Court addressed the pharmacy issue, finding that when the employer informed the doctor of how the prescriptions must be dispensed, and they elected not to follow the proper procedure, the provider will not be entitled to reimbursement.
Further, the Louisiana Supreme Court held La. R.S. 23:1203(A) does not state that the employee has the right to choose a pharmacy. Instead, it provides that the employee is simply entitled to the choice of their treating physician. The Louisiana Supreme Court did not want the definition of a treating physician to extend to pharmacies, so it allowed the employer to keep the power to choose the pharmacy. However, employees can still seek to recover penalties in the event of any unreasonable delays caused by the employer’s pharmacy. Accordingly, this Louisiana Supreme Court resolved the split in the lower courts and found that the employer has the right to choose a pharmacy for their injured workers.
The Burgess case shows the twists and turns that can occur from a simple question: who can choose a pharmacy in a workers’ compensation claim? The issue is now resolved with some finality. This case illustrates the need for a skilled workers’ compensation lawyer when filing such claims.
Additional Sources: Darvel Burgess v. Sewerage & Water Board of New Orleans
Written by Berniard Law Firm Writer: Josephine Kostick
Additional Berniard Law Firm Article on Workers’ Compensation Which Shows the Underlying Appeal in this Case, Which has now been Overruled: Can You Choose Your Own Pharmacy in a Workers’ Compensation Claim?