Stephanie Corona v. LA Correctional Institute for Women

STATE OF LOUISIANA

PMC COURT OF APPEAL

FIRST CIRCUIT

VV - - —' 7 2020 CA 0260

STEPHANIE CORONA

VERSUS

LOUISIANA CORRECTIONAL INSTITUTE FOR WOMEN

Judgment Rendered:
NOV 0 6 2020

On Appeal from the Office of Workers' Compensation
In and for the Parish of East Baton Rouge
District 5
State of Louisiana
Docket No. 17- 02482

Honorable Jason Ourso, Judge Presiding

Michael L. Hebert Counsel for Plaintiff/ Appellee
Denham Springs, Louisiana Stephanie Corona

John J. Kelley Counsel for Appellant
William David Coffey State of Louisiana through the
Baton Rouge, Louisiana Department of Public Safety and
Corrections, Louisiana Correctional
Institute for Women

BEFORE: GUIDRY, McCLENDON, AND LANIER, JJ.

McCLENDON, J.

In this workers' compensation case, the defendant appeals a judgment finding it

responsible for the costs of prescriptions dispensed to the plaintiff after the prescription

provider was informed that the prescription provider was no longer authorized to

dispense the medication directly to the worker. For the reasons that follow, we reverse.

FACTS AND PROCEDURAL HISTORY

The plaintiff, Stephanie Corona, was injured on September 30, 1998, while in the

course and scope of her employment with the defendant, the State of Louisiana,

through the Department of Public Safety and Corrections, Louisiana Correctional

Institute for Women ( State). As a result of her accident, the State has paid and

continues to pay Ms. Corona workers' compensation benefits.

On April 24, 2017, Ms. Corona filed a Disputed Claim for Compensation, asserting

that the State was denying her medications and her choice of physician, as well as

alleging a dispute over benefits and medical bills. Ms. Corona also sought penalties and

attorney fees. Thereafter, on July 3, 2017, Ms. Corona supplemented and amended her

claim seeking payment by the State for unpaid invoices for prescription medication

obtained through the Injured Workers' Pharmacy ( IWP).

On July 24, 2018, the parties entered into a Consent Judgment, whereby they

settled all matters with the exception of the issue of the contested, outstanding invoices

from IWP. Also on that date, the Office of Workers' Compensation ( OWC) signed an

order in accordance with the agreement.

Following a trial on the merits of the remaining disputed issue on October 8,

2019, the OWC ruled in favor of Ms. Corona, finding that the State was responsible for

the payment of medication prescriptions in the amount of $ 43, 807. 38, dispensed and

billed by the IWP, together with legal interest and costs. The OWC held that the State

was obligated to pay the IWP bills because the State had no statutory authority to

mandate that IWP use the billing process of Sedgwick Claims Management Services,

Inc. ( Sedgwick). Further, the OWC determined that Ms. Corona' s claims were

reasonably controverted by the State, and, therefore, no penalties or attorney fees

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were awarded. The OWC' s judgment was signed on October 18, 2019, and the State

appealed.

STANDARD OF REVIEW

In this case, the pertinent facts are undisputed, and the issue concerns a

question of law. The scope of appellate review for an issue of law is simply to

determine whether the trial court's interpretive decision is legally correct; i.e., whether

the trial court applied the law appropriately. Appellate courts owe no deference to the

legal conclusions of the trial court. Voisin v. International Companies &

Consulting, Inc., 05- 0265 ( La. App. 1 Cir. 2/ 10/ 06), 924 So. 2d 277, 279, writ denied,

06- 1019 ( La. 6/ 30/ 06), 933 So. 2d 132; R. L. Hall and Associates, Inc. v. Brunt

Const., Inc., 15- 0192 ( La. App. 1 Cir. 11/ 9/ 15), 2015 WL 6951252, at * 2.

DISCUSSION

In its appeal, the State contends that the OWC legally erred when it ruled that

the State was responsible for payment of prescription bills because it had no authority

to mandate that IWP use the State' s prescription billing process. The State maintains

that it has no liability for the IWP bills because Ms. Corona and IWP were notified by

Sedgwick, in a letter dated July 14, 2016, that Sedgwick would no longer authorize

payment for medications filled directly through IWP, since Ms. Corona had been issued

a prescription card by Sedgwick to fill prescriptions. Because the State did not consent

to IWP' s dispensing of medication directly to Ms. Corona, the State argues that it is not

responsible for payment of the disputed billings. According to the State, this issue was

decided in Burgess v. Sewerage & Water Board of New Orleans, 16- 2267 ( La.

6/ 29/ 17), 225 So. 3d 1020, 1028, wherein the Louisiana Supreme Court held that the

injured employee does not have a right to choose a specific prescription provider.

Therefore, the State argues that pursuant to Burgess, and the statutes discussed

therein, the State was obligated to pay no more than $ 750. 00 for nonemergency care,

and the OWC erred as a matter of law when it ruled to the contrary.

In the Burgess case, the claimant, like Ms. Corona herein, was notified that he

was required to use a specific prescription plan and prescription card chosen by the

employer for future prescriptions. The claimant was also notified that failure to follow

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the procedure might result in nonpayment of workers' compensation benefits.

Thereafter, the employer notified the claimant's prescription carrier that it was no

longer an approved provider and that future bills would no longer be paid. The OWC

and fourth circuit both found that the employer was responsible for the balance.

Burgess, 225 So. 3d at 1022.

The supreme court, granting writs to resolve a split among the circuits, reversed,

specifically holding that the choice of pharmacy in a workers' compensation case

belongs to the employer. Burgess, 225 So. 3d at 1021. The supreme court recognized

that an employer's duty under the Louisiana Workers' Compensation Act ( LWCA) to

furnish prescription medication is set forth in LSA- R. S. 23: 1203, which provides, in

pertinent part that ""[ i] n every case coming under this Chapter, the employer shall

furnish all necessary drugs." However, the supreme court determined that nowhere in

LSA- R. S. 23: 1203 does the legislature provide the employee with the right to choose a

pharmaceutical provider from which to obtain the necessary drugs. The supreme court

specifically stated that while the injured employee is entitled to choose his or her

treating physician under the LWCA, the law does not provide the employee a right to

choose a specific pharmaceutical provider.z Burgess, 225 So. 3d at 1028.

1 Louisiana Revised Statutes 23: 1203A and B provide:

A. In every case coming under this Chapter, the employer shall furnish all necessary
drugs, supplies, hospital care and services, medical and surgical treatment, and any
nonmedical 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. Medical care, services, and treatment may be provided by out-of-
state providers or at out-of-state facilities when such care, services, and treatment are
not reasonably available within the state or when it can be provided for comparable
costs.

B. The obligation of the employer to furnish such care, services, treatment, drugs, and
supplies, whether in state or out of state, is limited to the reimbursement determined to
be the mean of the usual and customary charges for such care, services, treatment,
drugs, and supplies, as determined under the reimbursement schedule annually
published pursuant to R. S. 23: 1034. 2 or the actual charge made for the service,
whichever is less. Any out-of-state provider is also to be subject to the procedures
established under the office of workers' compensation administration utilization review
rules.

2 Importantly, the supreme court recognized that the LWCA gives the employee protections to ensure
the employer satisfies its obligations under LSA- R. S. 23: 1203, stating that if an injured employee
experiences any delays or other discernable deficiencies in filling his prescriptions through the employer -
chosen pharmacy, constituting a violation of the employer' s duty under LSA- R. S. 23: 1203A, the employee
has a remedy for penalties pursuant to LSA- R. S. 23: 1201E. Burgess, 225 So. 3d at 1028. In this matter,
we note that Ms. Corona did not appeal or answer the appeal and, therefore, the issue of penalties and
attorney fees is not before this court.

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Moreover, the supreme court recognized in Burgess that the dispensing of

prescription medications is encompassed in the " nonemergency diagnostic testing or

treatment" language in LSA- R. S. 23: 114213, finding the word "'treatment" broad enough

to encompass a pharmacy dispensing prescription medication ordered by the injured

employee's treating physician as part of the employee' s treatment. Accordingly, the

supreme court explicitly held that LSA- R. S. 23: 1142 is properly implicated in considering

an employer' s obligation to pay prescription medication expenses in workers'

compensation cases. Burgess, 225 So. 3d at 1030. We find that the supreme court's

holding in Burgess is broad enough to encompass the prescription benefit service

under the facts of this case. 3

Louisiana Revised Statutes 23: 1142B( 1)( a) provides, in pertinent part, that a

health care provider " may not incur more than a total of seven hundred fifty dollars in

nonemergency diagnostic testing or treatment without the mutual consent of the payor

and the employee." 4 Thus, the statute requires a health care provider to have the

consent of the employee and the payor in order to receive payment in excess of $ 750

for nonemergency care. Burgess, 225 So. 3d at 1030.

In this matter, Ms. Corona and IWP were notified by letter that Sedgwick would

no longer authorize payment for the medications dispensed by IWP effective July 14,

2016. The letter also provided that Sedgwick provided a prescription benefit service to

all injured employees and that Ms. Corona had been provided a copy of the pharmacy

card, which enabled her to fill prescriptions in a timely manner at a large selection of

local pharmacies without incurring any out- of-pocket expenses. At trial, Lisa Vincent,

Sedgwick's litigation consultant, testified that besides the written notification, she also

called IWP more than once and gave it " several warnings" to bill through Helios, the

3 We note that the prescription service in this matter included Ms. Corona' s choice of pharmacy, IWP.

4 Louisiana Revised Statutes 23: 1142B( 1)( a) provides:

Nonemergency care. ( 1)( a) Except as provided herein, each health care provider may
not incur more than a total of seven hundred fifty dollars in nonemergency diagnostic
testing or treatment without the mutual consent of the payor and the employee as
provided by regulation. Except as provided herein, that portion of the fees for
nonemergency services of each health care provider in excess of seven hundred fifty
dollars shall not be an enforceable obligation against the employee or the employer or
the employer' s workers' compensation insurer unless the employee and the payor have
agreed upon the diagnostic testing or treatment by the health care provider.

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prescription service. She also stated that she provided IWP the necessary information

on " multiple occasions" to do so. Nevertheless, IWP continued to dispense

prescriptions directly to Ms. Corona and bill the State. Thereafter, Sedgwick paid to

IWP the $ 750 due for nonemergency diagnostic testing or treatment pursuant to LSA-

R. S. 23: 1142B( 1)( a).

Because the State notified Ms. Corona and IWP that it did not consent to the

dispensing of prescription medication by IWP directly to Ms. Corona after July 14, 2016,

any ongoing consent to or authorization of dispensing of prescriptions by IWP directly

to Ms. Corona was terminated after that date. Therefore, the State was not responsible

for any unpaid invoices, in excess of the $ 750 previously paid, after July 14, 2016, that

were not submitted through the prescription benefit service. See Lafayette Bone &

Joint Clinic v. Louisiana United Business SIF, 15- 2137 ( La. 6/ 29/ 16), 194 So. 3d

1112, 1118- 19. Accordingly, the OWC legally erred in finding otherwise.

CONCLUSION

Considering the above, we reverse the October 18, 2019 judgment of the OWC.

Costs of this appeal are assessed to the plaintiff, Stephanie Corona.

REVERSED.

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