Burgess v. Sewerage & Water Board of New Orleans
187 So. 3d 49
| La. Ct. App. | 2016Background
- On Oct. 13, 2008, Darvel Burgess (employee) was injured at work; the Sewerage & Water Board of New Orleans (S&WB) paid compensation and some medical benefits.
- S&WB instituted a pharmacy program (Corvel/Caremark) and notified employees they must use the program; Burgess signed an acknowledgement in 2011.
- Burgess used Injured Workers Pharmacy (IWP); S&WB notified IWP it was not an approved provider and refused to pay IWP bills.
- Burgess filed a disputed claim asserting unpaid prescription bills (IWP) and other medical bills; trial was submitted on briefs limited to those billing issues.
- The trial court ordered S&WB to pay IWP $13,110.82 and assessed penalties and attorney’s fees; S&WB appealed, arguing statutory limits and employer control over provider choice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Who chooses the pharmacy for worker's-compensation prescriptions? | Burgess: employee has right to choose pharmacy; employer must pay for reasonable, necessary meds per La. R.S. 23:1203(A). | S&WB: employer can direct provider choice and invoke La. R.S. 23:1142(B) to limit/nonpay where provider not approved. | Court: choice of pharmacy belongs to the employee; La. R.S. 23:1203 governs, not 23:1142(B). |
| Whether La. R.S. 23:1142(B) limits employer liability for IWP bills to $750 or requires payor consent for nonapproved providers | Burgess: 23:1142(B) does not apply to prescription medication; employer must pay full reasonable charges within fee schedule. | S&WB: 23:1142(B) applies to nonemergency treatment/tests and allows limiting payor liability or requiring consent. | Court: 23:1142(B) not applicable to prescription drugs here; purpose is to curb unnecessary diagnostic testing, not let employers "bargain shop." |
| Whether S&WB properly denied payment after notifying employee and pharmacy of nonapproval | Burgess: employer’s notification does not strip employee of right to choose pharmacy; employer still obligated to pay necessary prescriptions. | S&WB: notification put IWP and Burgess on notice; employer was within rights to deny payment. | Court: employer notification insufficient to shift choice; judgment ordering reimbursement affirmed. |
| Applicability of out-of-state provider/reimbursement rules to IWP (raised in dissent) | Burgess: (implicit) reimbursement due as billed because meds were necessary and within fee schedule. | S&WB/Dissent: issues whether IWP qualifies as permissible out-of-state provider and whether reimbursement schedule limits payment; remand needed. | Majority: affirmed without addressing out-of-state provider/reimbursement schedule; dissent would remand for those determinations. |
Key Cases Cited
- Davis Plumbing Co., Inc. v. Burns, 967 So.2d 94 (Ala. Civ. App. 2007) (employee entitled to choose pharmacy under similar statute)
- Naron v. LIGA, 175 So.3d 475 (La. App. 2 Cir. 2015) (Second Circuit: choice of pharmacy belongs to employee)
- Bordelon v. Lafayette Consol. Gov’t, 149 So.3d 421 (La. App. 3 Cir. 2014) (Third Circuit: employer may direct pharmacy; contrary holding)
- Sigler v. Rand, 896 So.2d 189 (La. App. 3 Cir. 2004) (Third Circuit distinguished diagnostic providers from pharmacies; allowed employer direction of pharmacy)
- Louisiana Clinic v. Patin’s Tire Service, 731 So.2d 525 (La. App. 3 Cir. 1999) (employee choice of diagnostic testing provider; employer may not dictate facility)
- Brown v. KTBS, Inc., 974 So.2d 784 (La. App. 2 Cir. 2008) (Second Circuit reasoning that employee may choose vendors for necessary devices/supplies)
- Rebel Distributors Corp. v. LUBA Workers’ Comp., 137 So.3d 91 (La. App. 3 Cir. 2014) (Third Circuit cases limiting recovery where payor consent issues arose; Chief Judge dissent argued meds not covered by 23:1142(B))