Marc Bordelon v. Lafayette Consolidated Government

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

WCA 14-304

MARC BORDELON

VERSUS

LAFAYETTE CONSOLIDATED GOVERNMENT

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APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION - # 4
PARISH OF LAFAYETTE, NO. 11-04000
SHARON MORROW, WORKERS COMPENSATION JUDGE

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BILLY HOWARD EZELL
JUDGE

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Court composed of John D. Saunders, Billy Howard Ezell, and J. David Painter,
Judges.

AFFIRMED.

Saunders, J., dissents with written reasons.

Mark Alfred Ackal
Attorney at Law
P. O. Box 52045
Lafayette, LA 70505
(337) 237-5500
COUNSEL FOR DEFENDANT/APPELLEE:
Lafayette Consolidated Government

John Vito Quaglino
Juge, Napolitano, etc.
3320 W. Esplanade Ave. North
Metairie, LA 70002
(504) 831-7270
COUNSEL FOR DEFENDANT/APPELLEE:
Lafayette Consolidated Government

Harry Karl Burdette
The Glenn Armentor Law Corp.
300 Stewart St.
Lafayette, LA 70501
(337) 233-1471
COUNSEL FOR PLAINTIFF/APPELLANT:
Marc Bordelon

EZELL, Judge.

In this matter, Marc Bordelon appeals the decision of the workers’

compensation judge below denying his disputed claim for workers’ compensation

benefits against the Lafayette Consolidated Government (LCG). For the following

reasons, we hereby affirm the decision of the workers’ compensation judge.

Dr. Bordelon was injured in the course and scope of his employment with

LCG in September of 2003, suffering a disc protrusion that required surgery. His

injury requires that he take prescription medication for muscle spasms and pain.

He had been receiving his medications via mail from Injured Workers Pharmacy

(IWP). LCG issued Dr. Bordelon a prescription medication card to receive his

medications through CVS/Caremark and notified Dr. Bordelon and IWP in May of

2010 that any further bills for medications from IWP would not be authorized. In

April of 2011, Dr. Bordelon ordered medications from IWP, despite the notice to

both that bills for any such orders would not be paid by LCG. Dr. Bordelon filed a

1008 in June of 2011 seeking choice of pharmacy. In February of 2012, the

workers’ compensation judge granted summary judgment in favor of LCG, finding

that it, not Dr. Bordelon, had choice of pharmacy. However, the workers’

compensation judge told Dr. Bordelon at the time that, if the medications were not

delivered in a reasonable timeframe, he could file a motion to change the pharmacy.

Claiming such delays occurred, Dr. Bordelon filed a motion for his choice of

pharmacy on May 11, 2012. The workers’ compensation judge ruled that LCG’s

choice of pharmacy was reasonable and that there were no deficiencies in the

filling of Dr. Bordelon’s prescriptions that would require a change. The workers’

compensation judge also limited the payment of outstanding pharmacy bills to IWP

to $750 under La.R.S 23:1142 and denied Dr. Bordelon penalties and attorney fees.

From that decision, Dr. Bordelon appeals.

Dr. Bordelon asserts three assignments of error on appeal. He claims that

the workers’ compensation judge erred in not granting his choice of pharmacy; in

limiting the payment of outstanding pharmacy bills to $750 under La.R.S 23:1142;

and in failing to award him penalties and attorney fees.

In his first assignment of error, Dr. Bordelon claims that the workers’

compensation judge erred in not granting him his choice of pharmacy. We

disagree. In holding that LCG’s plan was reasonable and contained no failings so

great as to require a change, the workers’ compensation judge relied on this court’s

opinion in Sigler v. Rand, 04-1138 (La. App. 3 Cir. 12/29/04), 896 So. 2d 189, writ

denied, 05-0278 (La. 4/1/05), 897 So. 2d 611. Dr. Bordelon claims that this ruling

conflicted with a separate opinion of this court, Louisiana Clinic v. Patin’s Tire

Service, 98-1973 (La.App. 3 Cir. 5/5/99), 731 So.2d 525. However, that alleged

conflict was directly addressed in Sigler, wherein, we stated:

[the employee] takes issue with [employer’s] reason for its
action and asserts that in any event [the employer] was not entitled to
cho[o]se the pharmaceutical provider for his medications, citing
Louisiana Clinic v. Patin’s Tire Service, 98-1973 (La.App. 3 Cir.
5/5/99), 731 So.2d 525. Patin’s involved the administration of an MRI
by a certain healthcare provider, Louisiana Clinic. The employer and
workers’ compensation insurer in that case authorized the MRI but
refused to authorize Louisiana Clinic to administer the diagnostic test.
We explained: “We have found no authority that allows the employer
or insurer to dictate the place and physician to perform diagnostic
testing ordered by a treating physician.” Id. at 528. Because the
administration of medical diagnostic testing, the type of equipment
used, and the interpretation of the results obtained from the testing
involve individual skill levels and perhaps comfort levels for patients,
we find that Patin’s does not apply to the circumstances of this case.
Unlike in the Patin’s case, the medication Sigler obtained was the
same regardless of which pharmaceutical company provided it.

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Thus, we do not find that [the employer] violated its obligation
to Sigler simply because it chose to have his prescriptions filled by a
different pharmaceutical company.

Sigler, 896 So. 2d at 198.

Dr. Bordelon was informed by LCG and its pharmacy plan on how to

properly fill his prescriptions in a timely manner, but his failure to follow the

instructions he was provided was not the fault of LCG. Had Dr. Bordelon wanted

his prescriptions filled quicker than the timeframe set by the mail order option he

chose on his own accord, he had an ample number of local pharmacies in which to

do so, or he could have simply sent in the prescriptions in the timeframe set out to

him by CVS/Caremark. We can find no error in the workers’ compensation

judge’s determination that, under Sigler, LCG was entitled to choose the pharmacy

to be used by Dr. Bordelon.

In his next assignment of error, Dr. Bordelon argues that the workers’

compensation judge erred in limiting the payment of the outstanding pharmacy bill

to $750.00 through an allegedly erroneous application of La.R.S. 23:1142. Dr.

Bordelon argues that the workers’ compensation judge should have instead applied

La.R.S. 23:1203 to award the lesser of the actual cost or the cost allowed under the

reimbursement schedule for the prescribed medication at issue. Again, we disagree.

This issue was discussed by this court in Rebel Distributors Corp., Inc. v.

LUBA Workers’ Comp., 2012-909 (La. App. 3 Cir. 4/2/14), 137 So. 3d 91, 95-97,

wherein we stated (first through fourth alterations in original):

Louisiana Revised Statutes Article 23:1142 is located in
Subpart G, entitled “ATTORNEYS AND PHYSICIANS[,]” of Part I,
“SCOPE AND OPERATION[,]” of the Workers’ Compensation Act.
At the time of the transaction at issue in this litigation, La.R.S.
23:1142 read, in pertinent part:

....

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B. Nonemergency care. (1) 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.

(2)(a) When the payor has agreed to the diagnostic
testing or treatment, the health care provider shall not
issue any demand for payment to the employee or his
family until the payor denies liability for the diagnostic
testing or treatment. Notwithstanding the foregoing, the
health care provider may reasonably communicate with
the employee or his attorney or representative for the
purpose of pursuing its claim against the payor.

(b) A health care provider who knowingly and
willfully violates this Paragraph may be ordered by the
workers’ compensation judge to pay penalties not to
exceed two hundred fifty dollars per violation plus
reasonable attorney fees. The penalty shall not exceed
one thousand dollars for any demand for payment to an
employee or his family which is issued after the health
care provider has been penalized for a previous demand
for payment to that employee or his family.

....

Although La.R.S. 23:1142(B)(1) does not specifically include
prescription medication in the “nonemergency diagnostic testing or
treatment” which is subject to the $750.00 cap, we find no error in the
WCJ’s application of La.R.S. 23:1142 to [Plaintiffs’] claim against
[the Defendant].

We choose to follow this prior ruling of this court. Furthermore, in this case,

LCG provided Dr. Bordelon and his pharmacy, IWP, with notice in writing that

payment to that IWP would cease to be made, effective June 1, 2010. This notice

was followed up by another letter to IWP reiterating that LCG would not pay for

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any charges to it for Dr. Bordelon after June 1, 2010. LCG received no bills from

IWP until April and May of 2011, while Dr. Bordelon used the LCG service.

When those bills from IWP were received, LCG immediately send notice that the

bills would not be paid, as previously told to IWP, and tendered $750 for payment

for Dr. Bordelon’s prescriptions. Dr. Bordelon and IWP knowingly incurred more

than $750 in expenses without LCG’s consent, despite prior notification IWP

would not be paid for services rendered to Dr. Bordelon. Dr. Bordelon argues that

once LCG told IWP it would not approve the purchase of drugs from them, it was a

denial of his claims and that authorization was no longer required. However, LCG

never denied Dr. Bordelon his claim for prescription drugs and, in fact, set up a

system by which he could receive them through 113 pharmacies locally or via the

mail. Dr. Bordelon simply refused to use that system properly. We find no merit

in this assignment of error.

Finally, Dr. Bordelon claims the workers’ compensation judge erred in

failing to assess penalties and attorney fees for the failure to timely pay for the

prescription medication. “The determination of whether an employer should be

cast with penalties and attorney fees in a workers’ compensation case is essentially

a question of fact and subject to the manifest error/clearly wrong standard of

review.” Krogh v. Tri-State Refrigeration, 11-697, p. 2 (La. App. 3 Cir. 11/2/11),

79 So. 3d 445, 447 (citing Reed v. Abshire, 05-744 (La.App. 3 Cir. 2/1/06), 921

So.2d 1224). As we have found no error in the workers’ compensation judge’s

findings above, we cannot say that the workers’ compensation judge erred in not

awarding Dr. Bordelon penalties and attorney fees.

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For the above reasons, we hereby affirm the decision of the workers’

compensation judge. Costs of this appeal are hereby assessed against Dr. Marc

Bordelon.

AFFIRMED.

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STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

14-304

MARC BORDELON

VERSUS

LAFAYETTE CONSOLIDATED GOVERNMENT

Saunders, J., dissents with written reasons.

SAUNDERS, J., dissenting

I respectfully dissent from the majority’s decision to affirm the worker’s

compensation judge’s determination that, under Sigler, LCG was entitled to choose

the pharmacy to be used by Dr. Bordelon.

The trial court focused on the reasonableness of the employer’s choice of

pharmacy. While I do not disagree that the employer’s choice was reasonable, I do

not believe that “reasonableness” of the employer’s choice of pharmacy is the

focus of our inquiry. I believe the issue to be examined is whether an injured

employee in Louisiana may choose his healthcare provider, including a pharmacist.

I believe he may for the reasons set forth below.

Louisiana Revised Statutes 22:1964(15)(a) generally provides that issuance

of any health benefits policy which “prohibits or limits a person who is an insured

or beneficiary of the policy…from selecting a pharmacy or pharmacist of the

person’s choice…or in any manner interferes with that person’s selection of a

pharmacy of pharmacist” is an unfair or deceptive practice. While this statute does

not directly apply to worker’s compensation policies, reading this law in

conjunction with the laws concerning worker’s compensation, as a policy of

insurance, it generally implies a legislative intent to preserve an insurance benefits

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recipient’s right to his choice of pharmacy and pharmacist. Further, this court has

previously refused to restrict an injured employee’s choice of healthcare providers,

except where the choice is specifically given to the employer. See Louisiana Clinic

v. Patin’s Tire Serv., 98-1973 (La.App. 3 Cir. 5/5/99), 731 So. 2d 525, 528 (“We

have found no authority that allows the employer or insurer to dictate the place and

physician to perform diagnostic testing ordered by a treating physician.”)

Dovetailing with this analysis is the second circuit’s interpretation of La.R.S.

23:1203 in Brown v. KTBS, Inc., 42,847 (La.App. 2 Cir. 1/9/08), 974 So.2d 784,

amended on rehearing (2/7/08), writ denied, 08-0353 (La. 2/15/08), 974 So.2d

1279. In this opinion, the court found that Louisiana was a “patient choice” state,

explaining:

La. R.S.23:1203 does not address the issue of
which party has the right to choose a vendor for a
reasonable and necessary medical device…[but] does set
forth the obligation of an employer to a claimant, which
is simply that of reimbursement of the lesser of the
amount provided by the fee schedule or the actual
amount paid for a recommended medical device.

....

What is contemplated by the legislature is that a claimant
will incur expenses for necessary drugs, supplies, care,
services, or, as in this case, a medical device, then obtain
reimbursement from his or her employer. Under the
circumstances of this case, claimant clearly has the right
to choose the providers of the necessary drugs, supplies,
services, etc., and defendants are protected by: (1) the
requirement that said drugs, supplies, services, etc., be
necessary and (2) the cost limit established La.R.S.
23:1203(B).

Id. at 786 (emphasis in original).

Moreover, the Attorney General, in opinion No. 89-47, agreed that the employer

could not compel an injured employee to use the pharmacy of its choice.

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This court, in Sigler v. Rand, 04-1138, p.15 (La.App. 3 Cir. 12/29/04), 896

So.2d 189, 198, writ denied, 05-0278 (La. 4/1/05), 897 So.2d 611, concluded that

an employee was entitled to choose the provider of diagnostic testing services

“[b]ecause the administration of medical diagnostic testing, the type of equipment

used, and the interpretation of the results obtained from the testing involve

individual skill levels and perhaps comfort levels for patients.” This court further

opined that an employee was not entitled to choose his own pharmaceutical

provider because “the medication [the employee] obtained was the same regardless

of which pharmaceutical company provided it,” Id. at 198, clearly suggesting that

pharmaceutical providers provide merely ministerial services, rather than services

that involve any level of skill. These conclusions were mere dicta in the case and,

I submit, incorrect. For the reasons articulated below, I think that Sigler was

wrongly decided, I think that this case was wrongly decided. While the majority

finds itself bound by the holding of Sigler, I would overrule Sigler.

It is simply common knowledge that pharmacists provide more than merely

ministerial services. Pharmacists are responsible for, among many other duties,

accurately dispensing prescribed medications in the proper dosage to the proper

patient, for advising the patient of any potential drug interactions, of any potential

side effects, and of any recommendations concerning how and when to take

medication, for communicating with prescribers when a prescription order is

unclear or potentially harmful for the patient, for promoting general health by

sharing advice concerning nonprescription remedies and supplements, such as

vitamins, over-the-counter medications, and herbal remedies, and staying abreast

of new medications and drug therapy protocol. Often, patients share confidential

and personally sensitive information with their pharmacists. These tasks are much

more than merely ministerial. They are an important part of a patient’s treatment

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and require advanced knowledge, a high-level of individual skill, and the comfort

of the patient.

Further, pharmacists must go through a rigorous process to become licensed

to administer pharmacy care in Louisiana. The applicant for a pharmacy license

must:

1) be at least 21 years of age;

2) be of good moral character and temperate habits;

3) obtain a professional pharmacy degree from an approved college of

pharmacy;

4) obtain a minimum of one year experience, under the supervision of a

licensed pharmacist, in providing pharmacy care. La.R.S. 37:1202; and

5) complete any examinations required by the Board of Pharmacy.

Further, according to the Application for Louisiana Pharmacist License,

promulgated by the Louisiana Board of Pharmacy, applicants must not only

successfully complete a licensure examination, but must also complete a second

examination and submit to a criminal background check. Finally, prior to their

annual license renewal, pharmacists must complete a minimum of fifteen hours of

continuing education. La.Admin Code tit. 46, §§505, 507. Surely the legislature

would not have imposed such rigorous requirements on persons who provide no

more than a ministerial duty.

It is my belief that Louisiana is overwhelmingly a “patient choice” state. In

the absence of a clear expression from the legislature to the contrary, it should

remain so. I would reverse worker’s compensation judge’s determination that

LCG was entitled to choose the pharmacy to be used by Dr. Bordelon.

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