LAFAYETTE BONE & JOINT CLINIC (CHARLES POOLE, JR.), ET AL.
v.
GUY HOPKINS CONSTRUCTION CO., INC., ET AL.
No. WCA 15-284
Court of Appeals of Louisiana, Third Circuit
October 21, 2015
APPEAL FROM THE OFFICE OF WORKERS' COMPENSATION - # 4 PARISH OF LAFAYETTE, NO. 08-22391 SHARON MORROW, WORKERS' COMPENSATION JUDGE
Jeffrey C. Napolitano Juge, Napolitano, Guilbeau, Ruli & Freiman COUNSEL FOR DEFENDANTS-APPELLEES: LUBA Casualty Insurance Company Guy Hopkins Construction Co., Inc.
Thomas A. Filo Cox, Cox, Filo, Camel & Wilson, L.L.C. COUNSEL FOR PLAINTIFFS-APPELLANTS: Dr. John E. Cobb, MD, APMC Lafayette Bone & Joint Clinic
Lawrence C. Billeaud Attorney at Law COUNSEL FOR PLAINTIFFS-APPELLANTS: Dr. John E. Cobb, MD, APMC Lafayette Bone & Joint Clinic
Court composed of Elizabeth A. Pickett, Phyllis M. Keaty, and David Kent Savoie, Judges.
DAVID KENT SAVOIE JUDGE
This is one of two workers' compensation matters now before us involving an identical dispute between a health care provider and an employer/workers' compensation insurer over reimbursement for physician-dispensed medication provided in connection with the employee's authorized office visits with his treating physician. The two matters were tried together, but never consolidated, and they were appealed separately.
1
After trial, the workers' compensation judge (WCJ) limited the health care provider's reimbursement for the medication to $750.00 under La.R.S. 23:1142, after finding that the medication was not authorized. The WCJ also denied the health care provider's claim for penalties and attorney fees.
For the following reasons, we amend the judgment to award reimbursement for the medication in the full amount charged, reverse the judgment in part, and award the health care provider penalties and attorney fees.
FACTUAL AND PROCEDURAL BACKGROUND
The facts in this case are largely undisputed. On April 10, 2003, Charles Poole was injured in the course and scope of his employment with Guy Hopkins Construction, Inc. (Guy Hopkins). According to the WCJ's ruling, LUBA Casualty Insurance Company (LUBA)
2 was Guy Hopkins' workers' compensation self-insured fund, and later insurer. Mr. Poole was treated by Dr. John Cobb with Lafayette Bone and Joint Clinic for work-related injuries.
On June 5, 2008, LUBA sent Dr. Cobb a letter indicating generally that it would no longer provide reimbursement for medications that Dr. Cobb dispensed to workers' compensation claimants. The letter asked Dr. Cobb to direct patients to a retail pharmacy to fill their prescriptions. LUBA submits that it made a business decision to no longer reimburse for physician-dispensed medication because it is significantly more expensive under the workers' compensation fee schedule than the same medication obtained from a retail pharmacy.
LUBA also submits that it contracted with a Pharmacy Benefits Manager (PBM), and that the PBM sent a prescription card to all LUBA workers' compensation claimants with a letter encouraging,
but not requiring, them to use the card for drugs prescribed by an authorized workers' compensation physician. LUBA further admits that it did not notify Mr. Poole that it would no longer pay for physician-dispensed medication.
Simone Clark testified on behalf of Lafayette Bone and Joint Clinic and indicated that prior to June 5, 2008, LUBA had paid over $750.00 for treatment rendered to Mr. Poole. According to Sandy Guidry, a billing supervisor for medication dispensed at Lafayette Bone and Joint Clinic, prescription medication for injured workers was distributed at the time the injured worker came in for an office visit.
On the following dates, Dr. Cobb and/or Lafayette Bone and Joint Clinic dispensed medication to Mr. Poole in connection with his office visits with Dr. Cobb: July 10, 2008; August 13, 2008; September 22, 2008; October 29, 2008; and December 23, 2008. The billed charges for this medication totaled $1, 359.65. The parties stipulated that the billed charges were at or below the rate set forth by the workers' compensation fee schedule.
LUBA authorized and paid for Mr. Poole's office visits with Dr. Cobb after June 5, 2008. However, LUBA denied the health care provider's claims for reimbursement for Mr. Poole's medication, referring to the June 5, 2008...
