# Burgess v. Sewerage & Water Board of New Orleans

> Louisiana Court of Appeal · February 3, 2016 · 2015 La.App. 4 Cir. 0918

URL: https://www.frixlaw.com/law-library/cases/4826062

## Case

- **Full name:** Darvel BURGESS v. SEWERAGE & WATER BOARD OF NEW ORLEANS
- **Court:** Louisiana Court of Appeal
- **Decided:** February 3, 2016
- **Citations:** 2015 La.App. 4 Cir. 0918; 187 So. 3d 49; 2016 La. App. LEXIS 186; 2016 WL 454064
- **Precedential status:** Published
- **Opinion:** Dissent by Lobrano
- **Judges:** Jenkins, Ledet, Lobrano
- **Cited by:** 5 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4826062

## Opinion text

LOBRANO, J.,
dissents with reasons.
hi respectfully dissent. While I am not convinced that Louisiana law affords the employee an unfettered choice of pharmacy in all. situations, I do not find that a determination whether the employee is entitled to his choice of pharmacy ends the inquiry of whether payment of the disputed pharmacy expenses is due or in what amount.
La. R.S. 23:1203 provides in pertinent part:
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 thie 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 *59 of workers’ compensation administration utilization review rules.
(Emphasis added.)
12Parvel Burgess introduced evidence of a pharmacy bill by Injured Workers’ Pharmacy, an out-of-state provider with a Massachusetts address. The record before us lacks any evidence whether Injured Workers’ Pharmacy fits the criteria for a permissible out-of-state provider under La. R.S. 23:1203(A-B) or any evidence of the reimbursement schedule set forth in La. R.S. 23:1034.2. I find that the Office of Workers’ Compensation erred by failing to consider these issues. To the extent this circuit has now joined with the Second Circuit in holding that the employee is entitled to his choice of pharmacy, it must be said that the employee’s “choice of pharmacy is not boundless.” See Naron v. LIGA, 49,996, p. 6 (La.App. 2 Cir. 9/9/15), 175 So.3d 475, 478 (finding the employee entitled to his choice of pharmacy but reversing the award of prescription medication expenses to an out-of-state pharmacy).
Accordingly, I would reverse the award for the prescription medication expenses of Injured Workers’ Pharmacy, and .1 would remand this matter to the Office of Workers’ Compensation for determination of whether pharmacy expenses are dúe to Injured Workers’ Pharmacy as an out-of-state provider, and if so, the amount o'f expenses due pursuant to the reimbursement schedule. See, e.g., Savoy v. Cecil Perry Imp. Co., 96-889, p. 19 (La.App. 3 Cir. 2/5/97), 691 So.2d 692, 703 , as amended on reh’g (La.App. 3 Cir. 4/7/97).

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4826062. Public record. Not legal advice.