Ohio Claimant Did Not Have Right To Full Reimbursement

Columbus, OH (CompNewsNetwork) - The Supreme Court of Ohio held that a 2005 administrative rule change limiting the maximum amount the Bureau of Workers' Compensation (BWC) will compensate claimants for brand name prescription drugs did not violate the state constitution by retroactively infringing on a claimant's "vested right."

In a 7-0 decision, the Court denied a writ of mandamus sought by workers' compensation claimant Karen Jordan.  Jordan asked the Court to issue a writ ordering the Industrial Commission to continue paying the full cost of her brand name prescription drugs after the effective date of a 2005 change in administrative rules that set the maximum allowable payment for a brand name drug at the cost of a pharmaceutically equivalent generic drug.

Jordan has been receiving state workers' compensation benefits, including payment for prescription drugs, since 1984. Despite the commission's 1997 adoption of rule amendments that generally capped payments for brand name drugs at the cost of a generic equivalent, continued to receive full payment for her brand name drugs under an exception in the rule that authorized full-cost reimbursement if a prescribing physician obtained advance approval from the BWC for a costlier brand name drug. In October 2005, however, the commission adopted new rule changes that eliminated the pre-approval provision and capped BWC payments for all brand name prescriptions at the cost of the brand name drug's generic equivalent.

When Jordan's prescription payments were reduced pursuant the 2005 rule change, she appealed unsuccessfully to the Industrial Commission. She then filed a mandamus action in the 10th District Court of Appeals. Jordan's attorneys argued that because her workers' compensation claim was approved in 1984, and her physician had obtained the required prior approvals for her to continue receiving specific brand name drugs prior to the effective date of the 2005 rule change, applying the new rule to reduce her compensation violated a prohibition in the Ohio Constitution against retroactive application of any law or rule that infringes on a person's vested right.  The 10th District ruled against Jordan, holding that she had no "vested right" to continue receiving full payment for brand name drugs after October 2005. 

In its decision, the Supreme Court unanimously affirmed the holding of the 10th District.  In its per curiam opinion the Court wrote: "Jordan maintains that she has a vested right to full payment for brand name drugs. ... Jordan's insistence ... that we look at the law in effect on her date of injury does not advance her cause.  R.C. 4123.54, which authorizes compensation for occupational injuries, disease, and death, has consistently given claimants the right to treatment for their allowed conditions. It has never given them the right to dictate the terms of that treatment or the conditions of payment. R.C. 4123.66 has always given that right to the administrative agency."

"Jordan is not helped by former Ohio Adm. Code 4123-6-21(F). ...  Effective from 1997 to 2005, the provision limited brand name reimbursement to the price of the generic equivalent unless the commission had authorized coverage of a brand name medication. Jordan proposes that this requirement was satisfied by an August 18, 2005 staff hearing officer order that 'specifically authorize[d] the following medications, pursuant to Bureau of Workers' Compensation rules and regulation:  Roxicodone; Soma; Sinequan; Klonopin; Lidoderm; Buspar.' Jordan's assertion that this order established that she had a vested right to brand name medications is unpersuasive. The order prefaced its authorization as 'pursuant to Bureau of Workers' Compensation rules and regulations,' and those rules and regulations later changed.  As noted earlier, a vested right entails 'more than a mere expectation of future benefit or interest founded upon an anticipated continuance of existing laws,' in this case, former Ohio Adm. Code 4123-6-21(F)." 

"The court of appeals correctly held that Jordan has no vested right to full payment for brand name medication. Without such a right, there can be no credible claim of impermissible retroactivity."

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