Darvel Burgess v. Sewerage & Water Board of New Orleans
225 So. 3d 1020
| La. | 2017Background
- Darvel Burgess was injured at work and received prescription medications from Injured Workers Pharmacy (IWP), an out‑of‑state pharmacy; IWP billed $13,110.82 for drugs dispensed between Sept. 2010 and Dec. 2012.
- Sewerage & Water Board of New Orleans (S & WB) adopted a Corvel Caremark pharmacy program in Oct. 2011 and notified claimants; S & WB later informed IWP (Apr. 12, 2012) that IWP was not an approved provider and bills would be denied.
- The OWC judge ordered S & WB to pay the IWP bill and awarded penalties and attorney fees; the Fourth Circuit affirmed, holding the employee has the right to choose his pharmacy.
- This Court granted supervisory review to resolve a split in the circuits on whether the employer or employee chooses the pharmacy under the Louisiana Workers’ Compensation Act (LWCA).
- The Louisiana Supreme Court held the employer has the right to choose the pharmacy, but remanded to the OWC to determine whether IWP may be treated as a permissible out‑of‑state provider and, if so, the recoverable amount under statutory reimbursement limits and the consent/$750 rule.
Issues
| Issue | Burgess (Plaintiff) Argument | S & WB (Defendant) Argument | Held |
|---|---|---|---|
| Who has the right to choose the pharmacy for worker’s‑comp prescriptions? | Employee is entitled to choose the pharmacy; La. R.S. 23:1203(A) obligates employer to pay for necessary prescriptions without restricting pharmacy choice. | Employer may designate a pharmacy program and require its use; LWCA does not grant employee a pharmacy‑choice right analogous to the statutory right to choose a treating physician. | Employer has the right to choose the pharmacy. |
| May an out‑of‑state pharmacy (IWP) be paid under La. R.S. 23:1203(A)? | Employee argued IWP provided necessary prescriptions and employer must pay. | Employer challenged IWP as out‑of‑state and disputed whether services were reasonably available in‑state or comparably priced, per 23:1203(A). | Remanded: OWC must determine whether IWP is a permissible out‑of‑state provider (not resolved on record). |
| If IWP is permissible, what reimbursement is allowed? (Reimbursement schedule / reasonableness) | Employee contended full billed amounts were due. | Employer invoked La. R.S. 23:1203(B) — reimbursement limited to the schedule or actual charge, whichever is less; reasonableness review applies. | Remanded: OWC must apply 23:1203(B) and reasonableness/reimbursement schedule to determine recoverable amount. |
| Does La. R.S. 23:1142(B) limit recovery for prescription dispensing without payor consent? ($750 cap/consent) | Employee argued 1142(B) inapplicable to pharmacy dispensing and cannot be used to cap pharmacist bills. | Employer relied on 1142(B) and Lafayette Bone & Joint to cap post‑notice dispensing without payor consent. | Court held 23:1142(B) can apply to dispensing of prescription medications; OWC must determine whether IWP had payor consent and whether recovery over $750 is barred. |
Key Cases Cited
- Lafayette Bone & Joint Clinic v. Louisiana United Business SIF, 194 So.3d 1112 (La. 2016) (addressed employer consent and $750 cap for physician‑dispensed meds; court limited recovery post‑notice without payor consent)
- Sigler v. Rand, 896 So.2d 189 (La. App. 3 Cir.) (distinguished physician choice issues from pharmacy dispensing; held employer may choose pharmacy but must provide timely access to medications)
- Bordelon v. Lafayette Consolidated Government, 149 So.3d 421 (La. App. 3 Cir.) (held employer met LWCA obligations by specifying pharmacy and employer may direct where prescriptions are filled)
- Davis Plumbing, Inc. v. Burns, 967 So.2d 94 (Ala. Civ. App. 2007) (analogous out‑of‑state case cited by plaintiff courts holding employee choice of pharmacy under similar statute)