In a decision dated June 26th, 2019, the Louisiana Supreme Court ruled that a Wal-Mart employee’s motion to compel was premature, because she had not established that “she has not been furnished proper medical attention or that there have been delays or deficiencies in filling prescriptions.” The Louisiana Supreme Court vacated the decision of the court of appeal.
The case (Elizabeth Soileau v Wal-Mart Stores Inc.) began with an alleged injury to the right arm in 2012. Soileau received medical treatment through her employer, Wal-Mart, including filling some of her prescriptions at Wal-Mart pharmacies. She obtained a judgment against Wal-Mart in 2016 and began filling additional prescriptions at a different pharmacy.
After the Burgess Louisiana Supreme Court decision in 2017, which established employer choice of pharmacy because the statute was silent on the issue, Wal-Mart wrote Soileau to tell her that she could only use Wal-Mart or Sam’s Club pharmacies from then on, further explaining that she would not be reimbursed for prescriptions filled elsewhere. Soileau filed a motion to compel in 2017 as a result of this conflict. An Office of Workers’ Compensation judge denied the motion and Soileau appealed. The court of appeal decided in her favor in a split opinion, “finding that a conflict of interest would be created if Wal-Mart were permitted to designate its own pharmacy as the only pharmacy” she could use. Wal-Mart applied to the Louisiana Supreme Court.
The Louisiana Supreme Court explains in its discussion of the case that nothing in Soileau’s motion suggests that she was refused treatment, even though she testified to the OWC judge that two of her prescriptions had been denied.
Kirk Landry, attorney with Keogh Cox in Baton Rouge, applauded the decision. He explained in comments to Louisiana Comp Blog that “the per curiam opinion addresses the proper role of the courts in adjudicating cases.” Landry explained further that, “It notes that there must be an actual controversy for a court to consider, and that abstract arguments about some future harm do nothing more than seek an advisory opinion.”
John Mineo IV, an attorney with The Monson Firm in Mandeville, offered further analysis in the same vein calling the case a “potential treasure trove for employers” because: “In one decision, the court affirms employers hold the right to choose pharmacies, removes general time-limits on the filing of exceptions, potentially prevents the expansion of relief sought by any means other than amending the underlying petition, and arguably increases a claimant’s burden in establishing an actual dispute and potential relief.”
Chief Justice Johnson, Justice Hughes, and Justice Genovese dissented in this case and all provided their own assigned reasons, an unusual show of discord in the court. In Chief Justice Johnson’s relatively brief dissent she explains:
In my view, the majority opinion creates an unreasonable burden for a claimant such as Ms. Soileau. Ms. Soileau has already obtained a judgment providing that she is entitled to certain prescription medications. Ms. Soileau testified during the hearing regarding problems she has experienced getting these prescription medications filled by Wal-Mart’s choice of pharmacy. To require Ms. Soileau to initiate another claim under these circumstances is onerous, needless, and runs afoul of principles of judicial economy.
Meanwhile, Justice Hughes and Justice Genovese’s dissents focus on the conflict of interest question, with Justice Hughes in particular arguing that an employer designating itself as the only pharmacy creates a privacy concern. Justice Genovese followed, stating that “the majority sloughs off the issue on the grounds of prematurity.”
It is Justice Hughes’ dissent that attorney Trey Mustian, of Stanga & Mustian in Metairie, found most compelling. Noting in his comments to Louisiana Comp Blog that he believes the majority opinion is wrong, he explained further that “Wal-Mart’s prematurity was clearly waived under the Code of Civil Procedure since it was not raised in the trial court.” Secondly, Mustian says, “the motion to compel does state a justifiable controversy because it is seeking a change in pharmacy which necessarily means that the claimant is asserting inadequacy in the provision of pharmaceuticals.”
Mustian also said that he thinks the conflict of interest issue is appropriate for review under Burgess and echoed Justice Hughes’ indication in the dissent that the Burgess decision should be revisited.
Nathan Schrantz, attorney with Nathan Schrantz LLC, saw the decision as a missed opportunity to clarify the Burgess decision. “The court sidestepped the real issue of the limits of employer choice of pharmacy as presented in Soileau v. Wal-Mart by punting on procedural grounds,” he said. “While I believe the Burgess decision was correctly decided insofar as the basic issue of choice of pharmacy under current Louisiana law stands, this case presents a valid question regarding the limits of Burgess.”
Read the entire case here: Louisiana Supreme Court Soileau v Wal Mart 6.26.19
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