A recent Appellate Division decision addressed an insurer’s ability to pay only the cost of generic as opposed to brand name drugs under the Workers’ Compensation Act and specifically raised the issue of whose burden it is to show generic drugs were available.
Section 206(11) of the Act allows insurers to argue the cost of drugs should be limited to the cost of the generic version when available. That section states that providers shall prescribe generic drugs whenever medically acceptable for the treatment of an injury or disease for which compensation is claimed. It further provides that an employee shall purchase generic drugs for the injury “if the prescribing provider indicates that generic drugs may be used and if generic drugs are available at the time and place of purchase…” The Act further states that if an employee purchases a nongeneric drug when 1) the prescribing provider agrees a generic drug may be used and 2) a generic drug is available at the time and place of purchase, the insurer is only responsible for the cost of the generic drug.
In the case at issue, the employee sought reimbursement for the cost of brand name instead of generic drugs. There was no evidence before the Board as to whether generic drugs were available at the time and place of purchase and therefore the Board declined to order reduced reimbursement. This put the burden of proving the availability of the generic version of a drug on the self-insured employer. On appeal, the self-insured employer argued that “because generic drugs were available on some occasions they must have been available at the time and place” the employee was given the brand name medication. The self-insured employer also argued it was the employee’s burden to prove that the generic drugs were not available and argued that since there was a lack of evidence on the issue, the ALJ should have denied her claim for reimbursement of the cost of brand name drugs.
The Appellate Division agreed. It found that because the burden of proof is generally on the party filing the claim, it would be the employee’s burden to show unavailability of the generic version of a drug. It found that because the employee did not meet that burden in this case, the Board erred in ordering the self-insured employer to pay for the brand name drugs. The Appellate Division modified the decision to limit the self-insured employer’s reimbursement to the employee to the cost of the generic versions only.
This case is a good reminder of the limits of reimbursement for compensable drug usage and employer/insurers should be sure to take advantage of such reduced costs whenever possible.