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From: Don Drinko
Sent: Wed Apr 15 16:12:40 2009
Gallagher Sharp Shop Talk: Workers’ Compensation

Question: Do injured workers have a “right” to receive brand name prescription
The Supreme Court of Ohio recently considered this question, and concluded that injured workers are not entitled to receive full payment for brand name prescription drugs, even when specific brand names are requested by their physicians of record. State ex rel. Jordan v. Industrial Comm, 120 Ohio St.3d 412, 2008-Ohio-6137 concerned a worker who suffered numerous injuries to her right knee, as well as “major depressive disorder,” as a result of a work-related incident in 1984. She underwent several surgeries, including a knee replacement, and her physician prescribed a number of prescription drugs, including Roxicodone, Soma, Sinequan, Klonopin, Lidoderm, and Buspar. These prescriptions were paid in full by the BWC until an amendment to OAC 4123-6-21(J) took effect in October, 2005. This rule authorized the BWC to establish a “maximum allowable cost” for medications, which with a few exceptions, corresponded to the price of existing generic equivalents. The 2005 amendment also removed a provision whereby providers could seek “prior authorization” for brand name drugs, essentially meaning that the BWC would no longer pay the full price of any brand name drugs with existing generic equivalents. The claimant in Jordan contested the retroactive application of this amendment, arguing that it deprived her of a “vested right” to full payment for such drugs, which were specifically prescribed by her physician. The Industrial Commission denied an appeal, which was affirmed by the Tenth District Court of Appeals, prompting an appeal. The Supreme Court of Ohio affirmed, holding that receiving brand name drugs is not a “vested right,” and was not retroactively denied. R.C. 4123.59, which was in effect when the claimant was injured in 1984, provides injured workers with the right to treatment for their conditions. However, the statute does not give workers the right to dictate the terms and conditions of that treatment, which R.C. 4123.66 expressly grants to the BWC. Nothing in the Code in effect in 1984 mandated full payment for name brand prescription drugs, even when the drugs are specifically requested by the provider, and the former versions of OAC 4123-6-21 did not require that authorization for such drugs be approved. The Court also rejected the argument that an SHO Order listing the brand names created a “vested right” to receive them, noting that the Order was subject to “BWC laws and regulations.” This decision affirms the BWC’s right to require generic equivalents, where available, but also reinforced the fact that only the BWC has the power to dictate the terms and conditions of payment for prescribed treatment. Donald G. Drinko, Esq. Certified Workers’ Compensation Specialist, Ohio State Bar Association Gallagher Sharp 1501 Euclid Avenue Cleveland, OH 44115 Direct: 216.522.1326


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