• Louisiana Supreme Court Ruling on Choice of Pharmacy and Prescription Medication
  • August 18, 2017 | Authors: Trenton J. Oubre; Kelsey A. Clark; James R. Raines; Joseph J. Cefalu; Christopher A. Mason; Alexandra Vozzella
  • Law Firm: Breazeale, Sachse & Wilson, L.L.P. - Baton Rouge Office
  • On June 29, 2017, the Louisiana Supreme Court issued a significant ruling, impacting employees' rights under Louisiana Workers' Compensation. In Burgess v. Sewerage & Water Board of New Orleans, the Louisiana Supreme Court explicitly 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." 2017 WL 2836062, *5 (La. 6/29/17).

    Although the Burgess Court did not specifically hold that prescription medication is subject to the Medical Treatment Guidelines ("MTG"), this conclusion can arguably be inferred from the Burgess holding. First, the Court held that the act of dispensing prescription medication, regardless of whether the medications were provided by a pharmacy or a physician's office, is subject to the $750 cap on nonemergency care. Second, the Court expressly held that prescription medication falls within the definition of "treatment." Although the Court was interpreting the term "treatment" in the context of the $750 statutory cap on medical fees, it can now be reasonably be argued that prescription medication "as treatment" should be subject to the MTG.

    The impact that prescription medication being subject to the MTG would have is significant. In 2009, the Louisiana Legislature completely revised workers' compensation laws in establishing guidelines for medical care and adjudication for workers' compensation claims. As part of this revision, the Director of the OWC was instructed to promulgate rules to establish a Medical Treatment Schedule. In 2011, the MTG were promulgated and became effective. The MTG not only determine what treatment is "necessary," but also set forth an administrative appeal process that must be followed, before suit can be filed, if and when a dispute regarding treatment arises.

    Prior to June 26, 2016, the majority view among Louisiana Circuits seemed to be that prescription medication was subject to the MTG, and therefore was subject to the administrative appeal process. However, on June 26, 2016, the Louisiana First Circuit Court of Appeal issued a series of opinions, including Moticheck v. State of Louisiana, all holding that prescription medication was not subject to the MTG and thus was not subject to the administrative appeals process. Because of the split created by the First Circuit's rulings, writ applications to the Louisiana Supreme Court were filed in all eight of these cases. However, on November 15, 2016, the Louisiana Supreme Court denied all eight writ applications, thereby further perpetuating the inconsistency and uncertainty as to whether prescription medication was subject to the MTG.

    So what is the logical implication of the Burgess ruling? Since promulgation of the MTG, all "treatment" owed by the employer to the employee is subject to the MTG. Under the MTG, all requests for medical treatment over $750 must be initiated by submitting a 1010 Form to the employer. Because the Louisiana Supreme Court held that prescription medication constitutes "treatment," then it logically would follow that any requests for prescription medication over $750 must be initiated by submitting a 1010 Form to the employer. Furthermore, because the Burgess Court finally acknowledged that costs are a reasonable consideration for employers, there are now grounds for disputing the reasonableness of prescription medications that do not fall within the reimbursement schedule.

    The bottom line is that based upon this recent Louisiana Supreme Court case, the employer has the right to select the pharmacy for medications in workers' compensation cases, and there is a basis to contend that prescription medication is subject to the MTG. However, unless and until the Louisiana Supreme Court expressly holds that prescription medication is subject to the MTG, some uncertainty will remain.