Elizabeth Soileau v. Wal-Mart Stores, Inc.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

18-284

ELIZABETH SOILEAU

VERSUS

WAL-MART STORES, INC.

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APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION - # 4
PARISH OF EVANGELINE, NO. 10-04116
ADAM C. JOHNSON, WORKERS’ COMPENSATION JUDGE

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ELIZABETH A. PICKETT
JUDGE

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Court composed of Sylvia R. Cooks, John D. Saunders, Marc T. Amy, and
Elizabeth A. Pickett, John E. Conery, Judges.

Amy, J., dissents and assigns reasons.

Conery, J., dissents for reasons assigned by Judge Amy and for additional
reasons assigned.

REVERSED.

Michael B. Miller
Jacqueline K. Becker
Attorneys at Law
Post Office Drawer 1630
Crowley, LA 70527-1630
(337) 785-9500
COUNSEL FOR PLAINTIFF-APPELLANT
Elizabeth Soileau

Keith J. Landry
Allen & Gooch, A Law Corporation
Post Office Box 81129
Lafayette, LA 70598-1129
(337) 291-1000
COUNSEL FOR DEFENDANT-APPELLEE
Wal-Mart Associates, Inc. and/or Wal-Mart Stores, Inc. D/B/A
Wal-Mart Stores, Inc. and/or All Its Subsidiaries and Affilliates

PICKETT, Judge.

A workers’ compensation claimant appeals a judgment that allows her

employer to require her to use a pharmacy it owns and operates for all of her

prescription needs. For the following reasons, we reverse the judgment.

FACTS

In June 2008, Elizabeth Soileau was injured in the course and scope of her

employment with Wal-Mart Stores, Inc. In September 2016, Ms. Soileau obtained

a judgment against Wal-Mart ordering that she “is entitled to prescriptions of

Hydrocodone, Lyrica, Celebrex, and Voltaren gel.” The following June, the

supreme court decided Burgess v. Sewerage & Water Board of New Orleans, 16-

2267 (La. 6/29/17), 225 So.3d 1020, in which it held that Louisiana workers’

compensation laws do not allow an employee to choose the pharmacy she wants to

use for her prescription needs. Two months later, Wal-Mart notified Ms. Soileau

that she could no longer use the pharmacy she was using for her prescriptions and

that she could only use “a Wal-Mart or Sam’s Club Pharmacy” for her future

prescriptions needs.

After Wal-Mart failed to fill two of the prescriptions that are the subject of

the September 2016 judgment, Ms. Soileau filed a motion seeking to compel Wal-

Mart to designate a pharmacy other than Wal-Mart or Sam’s Club for her

prescriptions. She acknowledged in her motion that the Burgess decision

authorized Wal-Mart to require her to use a specific pharmacy but argued that Wal-

Mart’s requirement that she use only pharmacies it owns and operates exceeds the

scope of Burgess for a number of reasons, e.g., it created a conflict of interest for

pharmacy personnel between its employer and her.

Wal-Mart opposed Ms. Soileau’s motion, arguing that Burgess does not

restrict an employer’s authority to designate a pharmacy, that any problems Ms.

Soileau experiences with Wal-Mart or Sam’s Club pharmacy services can be

addressed under La.R.S. 23:1201(E), and that she previously used its pharmacy for

her prescription needs. For reasons urged by Wal-Mart, the workers’

compensation judge (WCJ) denied Ms. Soileau’s motion.

Ms. Soileau filed a writ application with this court, seeking reversal of the

WCJ’s judgment. This court denied the writ application, finding the judgment

“addresse[d] the merits of the only remaining matters” pending before the workers’

compensation court and instructed Ms. Soileau to comply with the rules applicable

to appeals. Ms. Soileau then appealed the WCJ’s judgment.

ASSIGNMENTS OF ERROR

In her sole assignment of error, Ms. Soileau urges that “[t]he [WCJ] erred in

expanding the application of Burgess v. Sewerage & Water [Board] of New

Orleans, 16-2267 (La. 6/29/2017), 225 So.3d 1020, to allow an employer to force

its employee in a workers’ compensation case to receive pharmaceutical treatment

at its own facility.”

DISCUSSION

Is a Claim at Issue?

Wal-Mart argues that Ms. Soileau does not present a claim that needs to be

decided. This argument is based on the fact that she testified at trial that two

prescriptions she sought to have filled at Wal-Mart’s pharmacy were not filled;

however, she does not seek an order that the prescriptions be filled and that she be

awarded penalties and attorney fees.

In Abbott v. Parker, 259 La. 279, 308, 249 So.2d 908, 918 (1971), the

supreme court explained that a justiciable controversy exists, when “an existing

actual and substantial dispute, as distinguished from one that is merely

hypothetical or abstract, and a dispute which involves the legal relation of the
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parties who have real adverse interests.” Ms. Soileau presents an actual dispute—

whether Wal-Mart has the right to require that she obtain her prescriptions from its

pharmacy, and she seeks relief in the form of a judgment ordering Wal-Mart to

designate a pharmacy other than one that it owns to handle her prescription needs.

Therefore, her claim presents a justiciable issue.

Conflict of Interest

In Burgess, the supreme court determined that the legislature granted

workers’ compensation claimants the right to choose their treating physician,

La.R.S. 23:1121(B), but not the right to choose their pharmacy. The court

considered the split among the appellate courts on this issue and adopted the

reasoning set forth by this court in Sigler v. Rand, 04-1138 (La.App. 3 Cir.

12/29/04), 896 So.2d 189. Distinguishing a claimant’s right to choose her

physician from the right to choose her pharmacy, the supreme court observed:

Reliance on jurisprudence concerning choice of physician is
misguided. Unlike La. R.S. 23:1121(B) governing choice of
physician, the legislature has not afforded the employee an absolute
right to select a pharmacy under La. R.S. 23:1203(A). This
distinction is logical considering the importance of the doctor-patient
relationship. Unlike a patient’s personal relationship with his doctor,
there is no meaningful difference relative to which pharmacy is used
to dispense a prescription drug that would mandate employee choice
under the LWCA.

Burgess, 225 So.3d at 1027 (emphasis added). The court further observed that

regardless of what pharmacy the employee used, the medication was whatever her

physician ordered.

In reaching this conclusion, the supreme court examined the following

directives outlined by the legislature as to how workers’ compensation laws are to

be construed:

(1) The provisions of this Chapter are based on the
mutual renunciation of legal rights and defenses by
employers and employees alike; therefore, it is the
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specific intent of the legislature that workers’
compensation cases shall be decided on their merits.

(2) Disputes concerning the facts in workers’
compensation cases shall not be given a broad, liberal
construction in favor of either employees or employers;
the laws pertaining to workers’ compensation shall be
construed in accordance with the basic principles of
statutory construction and not in favor of either
employer or employee.

3) According to Article III, Section 1 of the
Constitution of Louisiana, the legislative powers of the
state are vested solely in the legislature; therefore, when
the workers’ compensation statutes of this state are to be
amended, the legislature acknowledges its responsibility
to do so. If the workers’ compensation statutes are to
be liberalized, broadened, or narrowed, such actions
shall be the exclusive purview of the legislature.

La. R.S. 23:1020.1(D) (Emphasis added). To extend the legislatively-
granted employee choice of treating physician to include the choice of
pharmacy can only be accomplished by giving an impermissibly
expansive reading to the provisions of La.R.S. 23:1203(A) and La.
R.S. 23:1121, thus broadening the employee’s rights in contravention
of La.R.S. 23:1020.1(D).

Thus, while the injured employee is entitled to choose his
treating physician under the LWCA, we hold the law does not provide
the employee a right to choose a specific pharmaceutical provider. . . .

It is important to recognize that the LWCA gives the employee
protections to ensure the employer satisfies its obligations under La.
R.S. 23:1023. 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 La. R.S. 23:1203(A), the employee has a remedy for
penalties pursuant to La. R.S. 23:1201(E).

Id. at 1028.

Contrary to Wal-Mart’s claim, the issue before us is not the issue decided in

Burgess. Ms. Soileau does not seek to choose her own pharmacy—she seeks to

have Wal-Mart choose a pharmacy that it does not own and operate. Ms. Soileau

contends that Wal-Mart’s designation of itself as her pharmacy created a conflict

of interest. We agree. The conflict is between Wal-Mart’s duty to Ms. Soileau and

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its own self-interest. A Wal-Mart pharmacist is a healthcare provider, La.R.S.

23:1021(6); consequently, Wal-Mart designated itself as Ms. Soileau’s healthcare

provider. As discussed in Burgess, Wal-Mart’s pharmacist will fill her

prescriptions with the same medication any other pharmacist would, yet

authorization of the prescription is in Wal-Mart’s discretion. Thus, a concurrent

conflict of interest exists here with the pharmacy staff, including the pharmacist,

having conflicting obligations and loyalties to their employer and their customer.

The conflict of interest herein also restrains Ms. Soileau’s attorneys’ ability

to obtain information from Wal-Mart’s designated pharmacy when Wal-Mart does

not authorize the pharmacy to fill a prescription. See Rules of Prof.Conduct, Rule

4.2, which prohibits an attorney from communicating with persons known to be

represented by counsel about the subject of the representation and without the

consent of their counsel. Ms. Soileau’s attorneys urge that this prohibition

prejudices her ability to determine why prescriptions are not filled and whether she

has a claim for penalties and attorney fees against Wal-Mart, as well as her ability

to prove such a claim. The attorneys can no longer talk directly to pharmacy

personnel to inquire why a prescription was not authorized, and, even if they could,

there is a real concern they could not get an accurate answer from Wal-Mart’s own

employees.

In Burgess, the supreme court determined that the workers’ compensation

laws do not grant the claimant the right to choose the pharmacy. In doing so, the

court did not determine that an employer can designate itself as a workers’

compensation claimant’s pharmacy. Indeed, the legislature has not given the

employer “an absolute right to select a pharmacy,” just as it “has not afforded the

employee” that right. Burgess, 225 So.3d 1027.

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The supreme court pointed out that our workers’ compensation laws are not

to be construed “in favor of either employer or employee.” Id. Nonetheless, that is

exactly what Wal-Mart seeks to do here because, undoubtedly, it will derive

financial gain by requiring its workers’ compensation claimants to fill all their

prescriptions in its pharmacies. Though the supreme court found the distinction

between “the importance of the doctor-patient relationship” and the pharmacist-

patient relationship to be logical, stating “there is no meaningful difference relative

to which pharmacy is used to dispense a prescription drug that would mandate

employee choice under the LWCA,” it did not consider specifically the issues

presented when an employer designates itself as a workers’ compensation

claimant’s pharmacy. Id. at 1027. For these reasons, we hold that Wal-Mart’s

conflict of interest between its self-interest and its duty to Ms. Soileau prohibits it

from designating itself or Sam’s Club as the only pharmacy Ms. Soileau can use

for her prescription needs.

DISPOSITION

For the reasons discussed above, the judgment of the WCJ is reversed, and

Wal-Mart Stores, Inc. is ordered to designate a pharmacy other than a Wal-Mart

Stores, Inc. or Sam’s Club Pharmacy to handle Elizabeth Soileau’s prescription

needs. All costs are assessed to Wal-Mart Stores, Inc.

REVERSED.

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NUMBER 18-284

COURT OF APPEAL, THIRD CIRCUIT

STATE OF LOUISIANA

ELIZABETH SOILEAU

VERSUS

WAL-MART STORES, INC.

AMY, Judge., dissenting.

I respectfully dissent from the majority opinion as I find that an affirmation is

required. Simply, I find that the direct language employed by the supreme court in

Burgess v. Sewerage & Water Bd. of New Orleans, 16-2267 (La. 6/29/17), 225 So.3d

1020 is controlling. In its consideration of divergent circuit opinions, the supreme

court explained that: “[W]e hold the Third and Fifth Circuits have correctly

determined the employer has the right to choose the pharmacy to furnish necessary

prescription drugs to an injured employee in a workers’ compensation case.” Id. at

1026. I do not find that the employer’s choice of its own pharmacy to be of such a

nature so as to require deviation from that broad principle.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

18-284

ELIZABETH SOILEAU

VERSUS

WAL-MART STORES, INC.

Conery, J., dissents for the reasons assigned by Judge Amy and for the

following additional reasons.

This matter came before the Worker’s Compensation Judge on a Motion To

Compel. The WCJ summarized the relief sought by the plaintiff in oral reasons

and stated, “The plaintiff in this matter seeks an order from this Court ordering

Walmart to approve her work-related prescriptions at a pharmacy rather than

Walmart Stores, Incorporated, and within close proximity to her home [and] Dr.

Blanda’s office.”

In denying the relief sought, the WCJ cited the supreme court case of

Burgess v. Sewerage & Water Bd. Of New Orleans, 16-2267, (La. 6/29/17), 225

So.3d 1020, which held that the employer has the choice of pharmacy in a

worker’s compensation case.

The WCJ noted that if “Miss Soileau experiences any delays or deficiencies

in filling her prescriptions, Miss Soileau has a remedy under Louisiana Revised

Statute[s] 23:1201(E), which requires that all, “[M]edical benefits payable under

this Chapter shall be paid within sixty days.” In order to obtain relief, Miss

Soileau would be required to file a Disputed Claim For Compensation (LWC-WC-

1008) form pursuant to La.R.S. 23:1310.3(A) and La. R.S. 23:1203.1(J). No such

claim was filed in this case.

A panel of this circuit in Fru-Con Const. Corp. v. Moore, 11-528 (La.App.

3 Cir. 12/14/11), 81 So.3d 202 was faced with a similar situation in connection

with a petition for a declaratory judgment, and applied La.R.S. 23:1310.3(A). That

statute provides in pertinent part: “A claim for benefits, the controversion of

entitlement to benefits, or other relief under the Worker’s Compensation Act shall

be initiated by the filing of the appropriate form with the office of worker’s

compensation administration.”

The Fru-Con panel then discussed the application of La.R.S. 23:1314,

which provides in pertinent part:

A. The presentation and filing of the petition under R.S. 23:

1310.3 shall be premature unless it is alleged in the petition that:

….

(2) The employee has not been furnished the proper medical attention,

or the employer or insurer has not paid for medical attention

furnished; …

….

C. The worker’s compensation judge shall determine the petition is

premature and must be dismissed before proceeding with the hearing

of the other issues involved with the claim.

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In this case, there has been no LWC-WC-1008 form filed by Miss Soileau in

connection with her “motion to compel”. Therefore, I would find that the “motion

to compel” filed by Miss Soileau was without reasonable cause and was premature,

pursuant to La.R.S. 23:1314. Furthermore, it was also improperly before the WCJ

as Miss Soileau’s motion to compel was not filed in conjunction with the required

LWC-WC-1008 form as mandated by La.R.S. 23:1310.3(A).

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