Under WC Law, Who is a Pharmacist?

Monday, January 18, 2010 | 0

By Michael Rabinowitz

I usually do not post decisions from the lower workers' compensation courts, but this subject has come up a lot from concerned adjusters.  Many carriers are finding that doctors–particularly pain management doctors–are not just prescribing medication but also dispensing it to claimants.  All of these doctors are dispensing the drugs through a third party, a mail order company, who in turn charges exorbitant rates to the carrier.

The problem these carriers face is section 440.13(3)(j) which details very strict language that an “injured employee shall be entitled, at all times, to free, full, and absolute choice in the selection of the pharmacy or a pharmacist dispensing and filling prescriptions for medicines under [Chapter 440].”

So, under the situation I just described, is the doctor (or mail order Rx company) a pharmacy?

In a Sarasota jurisdiction case, the judge of compensation claims ruled on this very issue.  Check out Bonanno v. Diocese of Venice Epiphany Cathedral Catholic Church.  In that case, claimant’s pain management doctor prescribed Rx drugs and offered to dispense them to claimant himself, through a company.  The company then charges the carrier for the Rx drugs.

After investigation, the carrier found that this company charged them exorbitant rates for drugs.  In some cases, more than 100% per month than what they would have paid through a statutorily licensed pharmacy, like Walgreens.   What’s more, the Health Insurance Claim Form submitted by the company to the carrier–for the Rx charges–indicated in bold, capital letters: “WE ARE NOT A PHARMACY-MEDS DISPENSED BY A PHYSICIAN!!”

Naturally suspicious, the carrier refused to pay continued Rx as dispensed by the pain management doctor/company.  The carrier did provide an alternative to the pharmaceutical issue by giving claimant an Rx card to be used in any licensed pharmacy.  Claimant refused and hence the lawsuit.

Ultimately, the JCC ruled that the neither the doctor or the company were to be considered “pharmacists” or “pharmacies” as defined in s. 465.0276, the statute that regulates pharmacists.  Furthermore, there is no language in s. 440.13 that indicates a physician can be included as a pharmacist under s. 440.13(3)(j).

This is a great decision for employer/carriers, but be warned: this is not a 1st District Court of Appeal decision so it is not controlling on other JCC’s, but it can be persuasive when defending this type of claim.  It is important to tread very carefully before making the same move in Bonanno.  The language of s. 440.13(3)(j) is very strict.  But, I will be keeping an eye to see if the 1st DCA gives us a definitive ruling on the subject.

For now though, doctors who dispense Rx without being acknowledged as licensed pharmacists are on notice.  And carriers need to review their Rx payouts to see if they are getting swindled.

<i>Michael Rabinowitz is an attorney with Banker Lopez Gassler, P.A. in Tampa. This column was reprinted with his permission from his blog, http://workerscompblog.wordpress.com</i>