Steel Creations by and Through Kesa, the Kentucky Workers' Compensation Fund v. Injured Workers' Pharmacy

RENDERED: AUGUST 24, 2017
TO BE PUBLISHED

. ~uptttttt drnurl nf ~tfFJ~/~ l
2016-SC-000217-WC

STEEL CREATIONS BY AND THROUGH APPELLANTS
KESA, THE KENTUCKY WORKERS'
COMPENSATION FUND; PRESTON
HIGHWAY METERED CONCRETE, BY AND
THROUGH KESA, THE KENTUCKY
WORKERS' COMPENSATION FUND;
MURRAY ELECTRONICS, BY AND
THROUGH KESA, THE KENTUCKY
WORKERS COMPENSATION FUND; FAMILY
ALL~RGY AND ASTHMA, BY AND
THROUGH KESA, THE KENTUCKY
WORKERS' COMPENSATION FUND; AND
SAMARITAN ALLIANCE, BY AND THROUGH
KESA, THE KENTUCKY WORKERS'
COMPENSATION FUND

. ON APPEAL FROM COURT OF APPEALS .
CASE NOS. 2015-CA-000218-WC, 2015-CA-000392-WC
& 2015-CA-000422-WC
V. WORKERS' COMPENSATION BOARD NOS. 03-WC-69871,
03-WC-73193, 04-WC-02145, 06-WC-00502, &
07-WC-80884

INJURED WORKERS PHARMACY; KEVIN APPELLE ES
KERCH; DONALD GRAMMER; KEM
BARNES; RITA MERRICK; SHAUNA LITTLE.
F/K/A HARDIN; HON J. LANDON
OVERFIELD, CHIEF ADMINISTRATIVE LAW
JUDGE; WORKERS' COMPENSATION
BOARD; AND JACK CONWAY, ATTORNEY
GENERAL

AND
 · 2016-SC-000222-WC

INJURED WORKERS PHARMACY; KEVIN CROSS-APPELLANTS
KERCH; DONALD GRAMMER; AND KEM
BARNES

ON APPEAL FROM COURT OF APPEALS
CASE NOS. 2015-CA-000218-WC, 2015-CA-000392-WC
& 2015-CA-000422-WC
V. WORKERS~ COMPENSATION BOARD NOS. 03-WC-69871,
03-WC-73193, 04-WC-02145, 06-WC-00502, &
07-WC-80884

STEEL CREATIONS BY AND THROUGH CROSS-APPELLEES
KES.A, THE KENTUCKY WORKERS' .
COMPENSATION FUND; PRESTON
HIGHWAY METERED CONCRETE, BY AND
THROUGH KESA, THE KENTUCKY _
WORKERS' COMPENSATION FUND;
MURRAY ELECTRONICS,
. I
BY AND
THROUGH KESA, THE KENTUCKY
WORKERS COMPENSATION FUND; FAMILY
ALLERGY AND ASTHMA, BY AND
THROUGH KESA, THE KENTUCKY
WORKERS' COMPENSATION FUND;
SAMARITAN ALLIANCE, BY AND THROUGH
KESA, THE KENTUCKY WORKERS'
COMPE;NSATION FUND; JACK CONWAY,
ATTORNEY GENERAL; DWIGHT LOVAN,
COMMISSIONER, DEPARTMENT OF
W:ORKERS' CLAIMS; HON. J. LANDON .
OVERFIELD, CHIEF ADMINISTRATIVE LAW
JUDGE; WORKERS' ~OMPENSATION
BOARD; RITA MERRICK; AND SHAUNA
LITTLE (HARDIN)

OPINION OF THE COURT BY JUSTICE KELLER

AFFIRMING IN PART, VACATING IN PART, AND REMANDING

2
 This matter arose from five separate medical fee·disputes filed by KESA,

the Kentucky Workers' Compensation Fund, on behalf of its insureds--'Steel

Creations, Preston Highway'Metered Concrete, Murray Electronics, Family

.Allergy and Asthma, and ~amaritan Alllance. The disputes. were filed against

the Injured Workers' Pharmacy (IWP) and the insureds' employees/former
employees~Kevin Kerch, Donald Grammer, Kem Barnes, Rita Merrick,_and

Shauna Little (Hardin), all of whom had their prescriptions filled by IWP. This

litigation has involved three primary issues: (1) whether a.

pharmacy/ pharmacist is a medical provider; (2) whether an injured worker is

entitled to choose which pharmacy he or she uses to fill prescrip1;ions or

whether that "choice" belongs to the employer or its insurer; arid (3) how to

interpret the pharmacy fee schedule. The Chief Administrative Law Judge

(CAW) found that a pharmacy/pharmacist is a medical provider, :which entitles

an injured worker to choose where to have his or her _prescriptions filled. The
(

CAW also found the pharmacy fee schedule is based on the amo_unt a

pharmacist pays a wholesaler for medication, and that IWP is entitled to

interest on any underpayment by KESA. Finally, the CAW found that KESA

had brought its medical fee disputes "without reasonable ground and without

reasonable medical or factual foundation." Therefore, the CAW ordered KESA

to pay the entire ·cost. of the proceedings to IWP, Kem Barnes, Kevin Kerch, and

Donald Grammer.I The Workers' Compensation Board (the Board) reversed the

1It appears that Shauna Little (Hardin) did not participate in the litigation. It is ·
unclear why .the CAW did not award costs to Rita Merrick.

3
CAW's award of costs but otherwise affirmed. The Court of Appeals affirmed

the Board. For the following reasons, we affirm in part, vacate in part, and

remand.

I. BACKGROUND.

The factual bases
. for the underlying individual claims are. not dispositive
.

of this appeal. However, they bear mentioning and we briefly summarize each

claim below. Before doing so, we note that the underlying five claims wer~ n?t

consolidated but were assigned to the CAW and joined for litigation purposes.

Because the claims were not consolidated, the parties filed essentially the same

evidence in each of the individual claims.2 We address that jointly filed

evidence separately after our summary of the individual claims.

A. Rita Merrick

Merrick, who worked for Family Allergy and Asthma Associates, suffered

a work-related back injury on December 10, 2003. She subsequently

underwent lumbar spine surgery and an Administrative Law Judge (AW)

awarded her medical expense benefits and income benefits based on a 26.455

permanent disability rating with entitlement to the three times multiplier

pursuant to Kentucky Revised Statute (KRS) 342.730(1)(c)l. Following the.

AW's award; the parties filed several motions to reopen, culminating in the

motion KESA filed on March 31, 2010, which is the subject of this appeal.

2 We note that several depositions were filed.only in the Kevin Kerch claim.
However,_ the parties and the.CAW treated these depositions as applicable to all of the
claims. We do so as well. ·
.•

In its motion, KESA stated that it had provided Merrick with a medical

card that permitted her to "conveniently purchase prescription drugs at the

local pharmacies at a contracted price." KESA also stated that it had advised

Merrick that the medical card was provided through a program administered

by M. Joseph Medical (M. Joseph) and that KESA would only pay prescription

bills submitted through the M.. Joseph program.

According to KESA, it had an agreement with M. Joseph which enabled

KESA to reimburse Merrick's pharmacy "at a potentially lower price than what

is required in the administrative regulation's fee schedule for prescription

drugs." KESA noted that Merrick was not getting her prescriptions filled

through the M. Joseph program but was getting them filled through IWP.

KESA sought an order requiring Merrick to participate in the M. Joseph

program.

In her response, Merrick stated that she had difficulty getting her

prescriptions timely filled when going through KESA.or a KESA required

pharmacy. However, she experienced no such problems when getting her

prescriptions filled through IWP. The AW granted KESA's motion and

reopened Merrick's claim.

During· the course of the litigation, Merrick testified that, when she

presented a prescription at a KESA approved pharmacy, she had to wait while

the pharmacist obtained authorization from KESA to fill it. This often resulted

in multiple trips t_o the pharmacy, phone-calls to the ad~uster at KESA, and

delays in getting her prescriptions filled that could extend to several days. As a

5
 result, Merrick contacted her attorney, who referred her to IWP. Once.Merrick

switched to IWP, she began getting her prescriptions through the mail, and she

did not experience any delays.

B.. Donald Grammer

Grammer suffered a neck injury while working for Preston Highway

Metered Concrete. He underwent a two-level cervical fusion and.the AW

awarded medical expense benefits and income benefit.s based on a 35%

permanent impairment rating enhanced by the three times multiplier ~n KRS

342.730(1)(c)l. Citing the same reasons it cited.in Merrick's claim, KESA filed

a motion to reopen Grammer's claim to contest his use of IWP to fill his
·''
prescriptions;· The AW granted KESA's motion, and during the course of the

subsequent litigation,. Grammer testified that he switched ·to IWP to fill his
/

prescriptions because he had experienced delays when using a KESA-preferred

pharmacy. As did Merrick, Grammer testified that he often had to wait to get

his prescriptions filled because the KESA-preferred pharmacist had to get

authorization, a delay he did·not experience with IWP.

C. Shauna Little (Hardin)

Little, a registered nurse, suffered a work-related ·neck injury and

underwent a tWo-level cervical discectomy and fusion. An AW awarded _Little
'1

medical expense benefits and income benefits based on a 27% permanent ,.--.

impairment rating enh_anced by the three times multiplier in KRS

· . 342.730(1)(c) 1. Three years after the AW rendered the. opinion, KESA filed a

motion to reopen Little's claim to contest medical expenses citing the same

6
reasons ~t cited in the Merrick and Grammer clain:is. The AW granted KESA's

motion but Little, who failed to appear at her deposition and who filed no

evidence, did not actively participate ~n this litigation.

D. Kem Barnes

Barnes suffered a work-related low back injury and settled his claim for a

lump sum based on a 5% permanent impairment rating. The settlement

provided that Bames's employer would remrun liable for medical ekpenses.

Slightly less than four years after the settlement, KESA filed a motion to reopen

Bames's claim citing the same reasons it cited in the Little, Merrick, and

Grammer claims. The AW granted KESA's motion, and Barnes testified about

the difficulties he had getting his prescriptions filled before he switched to IWP.

E. Kevin Kerch "-

Kerch suffered a work-related left upper extremity injury in July 2007.

In February. 2009, the parties settled Kerch's claim based on a 24% permanent

impairment rating and provided that Kerch's employer would remain liable for

medical expense benefits. Approximately a year later, KESA filed a medical fee.

dispute contesting Kerch's use of IWP to fill his prescriptions, which the AW

granted. As did the oth~rs, Kerch testified about the difficulties he had getting

his prescriptions filled at the KESA preferred pharmacy.

F. Common elements to all claims.
I

In .further support of its position on reopening, KESA stated it had

concluded that it had the right to direct the claimants to a pharmacy because

KRS 342.020 did not provide the option for claimants to make that choice. In

7
support of that condusion, KESA attached an opinion from the Attorney

General given in response to a request from state. Senator Tom Jensen. In that

opinion, the Attorney General set out the following facts as presented by

Senator Jensen: (1) some physicians required their workers' CC?mpensation

patients to use IWP; (2) IWP charged insurers "the full fee schedule, which is

generally 25% greater" than what the insurers were charged by other area

. pharmacies; and (3) IWP complained because KESA was reimbursing it at the

lower rate.
\,

In response to the Senator"s specific questions, the Attorney General

noted that, while KRS 342.0011(15) lists med~cines as a "medical service," the

statute contains no definition. for "medical provider." Because "mediCal ~

services" does not appear in the context of medical provider choice, the

Attorney General concluded that a pharmacy is not amedical provider for
'
choice of provider purposes. Therefore, an employer or insurer could direct a

claimant to a particular pharmacy or group of pharmacies. The, Attorney

General also stat~d that there was no case law regarding this, which ignored a

.
Board opinion stating that pharmacies are medical providers. Finally, :the
'
Attorney General stated that an employer or insurer could not enter into a fee

agreement and force a non-party to that agreement to accept the agreed to fee.

G. Evidence common to a11 ·claims.

The parties filed a substantial amount of evidence regarding the business

models of IWP and M. Joseph; the various methods tllat arguably. can be or

should be used to determine the average wholesale price of pharmaceut1:cals;

8
and. the advantages and disadvantages to using each of those methods. We

summarize that evidence 'below to the extent it is necessai-y to understand the

disputes among the parties.

IWP has a warehouse and retail outlet in Andover, Massachusetts. It fills

prescriptions, in pertinent part, for injured workers ahd primarily markets

itself to plaintiffs' attorneys. Therefore, most of its "referrals" are from

p°laintiffs' attorneys, as is the case with the five individual claimants herein.

We note that, despite the statements in the Attorney General's opinion, there

was no evidence presented that any physicians required their patients to use

IWP.

After an injured worker enrolls with IWP and IWP receives a prescription,

it verifies the authenticity of the prescription and fills it without requiring

authori.Zation from the insurer. If ari AW subsequently determines that the

prescription was· for a nonwork-related condition or otherwise is not

compensable. by the insurer, IWP will not balance bill. the patient but will write

off the cost of ariy non-covered medication. IWP undertakes this ~sk because

it views itself as a patient advocate and does not want to unnecessarily delay

providing prescribed medication .

. IWP, which operates in a number of states, charges insurers for

medication it dispenses pursuant to its interpretation of the appropriate fee

schedule. In K,intucky, IWP charges the "average wholesale price," as set forth

9
 in a publication known as "Medi-Span. "3 IWP charges the published average

wholesale price regardless of what it actually pays for the medication it

dispenses.

M. Joseph ac~s as a "middle-man" between KESA and several pharmacy.

benefit management companies, which act as middlemen between pharmacies

and pharmaceutical manufacturers.4 Pharmacy benefit management .

companies have 'contracts with a numb~r of pharmacies to provide medication

to those pharmacies at an agreed to price. That price reflects the pri~e the

·pharmacy benefit management companies have negotiated with the
-,,

pharmaceutical manufacturers and includes discounts for volume as well as
' '
for manufacturer provided rebates. The pharmacies bill the pharmacy benefit

management companies based on the agreed to price.

· ~rsuant to M. Joseph's contracts with the pharmacy benefit

management companies, the companies bill M. Joseph for the medications that

claimants of M. Joseph clients have purchased. The pharmacy benefit

management companies add an "upcharge" to what the pharmacies bill before

sending the bills to M. Joseph. M. Joseph then adds an "upcharge" to that

amount and bills its clients.

,,

3 It appears that IWP may have used a publication known as "First Databank"
·at some point during the litigation. However, First Databank apparently no longer
publishes data regarding average wholesale-pharmaceutical prices and IWP switched
to Medi-Span. ·
4 Claiming that it was a trade secret, representatives of M. Joseph would not
identify the pharmacy benefit management companies with which it has contractual
relationships.

10
 M. Joseph's primary fact witness, Michael Bartlett, .testified that he did

not know how much the pharmacy benefit management compani~s added as

an upcharge, and he refused to testify about the amount M. Joseph added as

an upcharge claiming that information is a trade secret. Furthermore, none of

the witnesses could or would testify regarding the agreed to price for

medications that had been negotiated between the pharmacy benefit

management companies and the pharmacies.

KESA has a "hand-shake" agreement with M. Joseph whereby M. Joseph

provides a prescription card to KESA's insureds that the insureds can use at

most pharmacies i.n the.Commonwealth. When the insured presents the card

to get a prescription filled, the pharmacist can verify if the prescription is

authorized.s If it is not, the pharmacist calls a representative from M. Joseph

who then contacts an adjuster at KESA. The adjuster will then either authorize

the pharmacist to fill the prescription or advise the pharmacist and the insured

that additional information is needed. It is this authorization procedure that

causes the delays about which the named claimants complained.

M. Joseph markets itself by representing that it can provide prescription

medications to insureds at an average cost that is approximately 25% below

the average wholesale price. It is unclear whether M. Joseph uses a published

average wholesale price when making this assertion; however, it appears that is

the case. KESA filed int~»evidence spreadsheets showing the difference

s ~tis unclear if a pharmacist is required to obtain authorization; however, it is
undisputed that most if not all pharmacists, with the exception of the pharmacists at
IWP, will not ftll a prescription without receiving authorization.

11
between what M. Joseph charges for prescriptions and what IWP charges. For

some medications the difference is as much as several hundred dollars and for

others there is little to no difference.

In addition to the preceding, the parties filed voluminous testimony

about the difference between the published average wholesale price and the

actual average wholesale price. According to KESA's expert witness, the

published average wholesale price is provided to the pubiishers by the

pharmaceutical manufa~turers and has no relationship to what wholesalers

actually charge. A more accurate measure, although it is not exact either, is

the published wholesale acquisition cost, which is a reflection of what the .

wholesalers pay the manufacturers. However, this number, like the number

.for the published average wholesale price, is also provided by the

manufacturers. It appears that most states use the published average

wholesale price and/ or the wholesale acquisition cost as a starting point for

pricing purposes but do not explicitly adopt either in toto.

Neithe( party filed any evidence regarding the actual wholesale price IWP

pays for the medications it dispenses. However, we note that, for nearly two

and a half years of this litigation, KESA did not challenge IWP's charges as

being in excess of the prescription fee schedule. In fact, KESA did not officially

list that as an issue until September 7, 2012, which was after the vast majority

of the depositions had been taken and filed. 6

6 The only arguably dispositive deposition taken after September 7, 2012 was
an update deposition of KESA's expert, Dr. Rost .

.12
 In a rare step in workers' compensatio~ claims, KESA joined the .

Commissioner of the Department of Workers' Claims (the Department) as a

party. The Commissioner testified that 803 KAR 25:092, which is commonly

known as the pharmacy fee schedule, controls how prescription fees ate

charged and it "speaks for itself." The average wholesale price is "the average

wholesale price of a given drug ,at a specific point in time." The Commission.er

stated that he did not know what proof the parties would need to put forth to

establish what the average wholesale price is; however, he noted that the

Department had not adopted any pricing publications. Determining what price

meets the regulatory definitions would be a niatter for an'ALJ, not the

Commissioner. Finally, the Commissioner noted that, years prior to the

Attorney General's opinion, the Board had determined that a pharmacy is a

medical provid.er, and the Department follows Board opinions until an
•,

appellate court rules to the contrary.

H. The ALJ's Opinion.
-
Following a number of petitions for reconsideration, the ALJ ultimately

made five findings/ decisions that are pertinent to this appeal. First, he found

that a pharmacy is a medical provider, which entitles a claimant to choose

which pharmacy to use.

Second, he found that 803 KAR 25:092 §§ 1 and 2 neither mandate nor

exclude consideration of a published average wholesale price, and they should

be interpreted as follows:

(a) Pursuant to 803 KAR 25:092§1(6), "wholesale price" is the
average wholesale price drugstores (or any other pharrriaceutical
13
 providers) pay to wholesalers when purchasing pharmaceuticals for
distribution in filling prescriptions for customers.

(b) A pharmacist filling prescriptions for an injured worker which
requires dispensing brand name drugs for a workers[sic]
compensation injury is entitled tffbe reimbursed in an amount
equal to the wholesale price as determined pursuant to 803 KAR
25:092§1(6) the pharmacist paid for the drug dispensed plus a five
dollar ($5.00) fee and any applicable federal or state tax or
assessment.

(c) A pharmacist filling prescriptions for an injured worker for a
workers [sic] compensation injury with .drugs which are not brand
name drugs is entitled to be reimbursed in an a.qi.aunt equal to the
. wholesale price as determined pursuant to 803 KAR 25:092§1(6)
the pharmacist paid for the lowest price drug which is
therapeutically equivalent to the drug use[d] to fill the prescription
which the pharmacist has in stock in his establishment at the tlme
he fiils the prescription~ plus a five dollar ($5,00) dispensing fee
and any applicable federal or state tax or assessment.

(Emphasis added.)

Third, the CAW found that KESA "brought and prosecuted [the .medical
~

fee disputes] without reasonable ground and without rea&onable medical or

factual foundation" an~ he assessed the entire cost of the proceedings to the

" all contested
claimants. Fourth, the CAW ordered KESA to "pay

pharmaceutical bills· ... pursuant to KRS 342.020 and the pertinent

regulations." Finally, the AW found ~at IWP is not entitled to interest on any

unpaid or overdue balances it claims.

Both parties appealed to the Board. KESA argiled, in pertinent. part,

that: the CAW correctly found that a pharmacy should be paid based on the

actual average wholesale price the pharmacy paid for dispensed medication;
, .

the CAW incorrectly found that the regulation does not require exclusion of the

use of publi~hed average wholesale prices when calculating the amount a
14
 pharmacy is owed; the CALJ erred in assessing costs; and the CALJ erred in

finding a pharmacy is· a med~cal provider. IWP argued that the CALJ erred ·

when he failed to award interest on any past due payments.

The Board agreed with KESA that the award of sanctions was not

justified, but otherwise affirmed the CAW. Both parties sought review by the

Court of Appeals, and the Court of Appeals affirmed the Board. In doing so,

the Court of Appeals erroneously stated that the CAW had ordered KESA to

pay IWP based on the published average wholesale price .that IWP had charged.

This misstatement by the Court of Appeals appears to be fueling, in large part,

· KESA's appeal to ~his Court.

As noted above, the parties raise essentially the same issues they have

argued throughout this lit:igation. We address those issues below.

II. STANDARD OF REVIEW.

The issues presented by the parties primarily require us to interpret

statutory and regulatory provisions, which we review de novo. Saint Joseph

Hosp. v. Frye, 415 S.W.3d 631, 632 (Ky. 2013). However, we defer to the CALJ

with regard to factual determinations and, when the issues involve mixed

questions of fact and law, we have greater latitude to determine if the

underlying opinion is supported by probative evidence. See Purchase Transp.

Services v. Estate of Wilsori, 39 S.W.3d 816, 817-18 (Ky. 2001).

III. ANALYSIS.

A. The CALJ correctly determined that a pharmacy is a medical
provider.

15
 KESA argues that workers' compensation claimants are not entitled to

choose a pharmacy because a pharmacy is not a medical provider. The CAW,

the Board, and the Court of Appeals found to the contrary.

To resolve this issue we must look to two statutory provisions, KRS.

342.020(1) and KRS 342.0011(15). KRS 342.020(1) provides that:

In addition to all othe.r compensation. provided in this chapter, the
employer shall pay for the cure and relief from the effects of an
injury or occupational disease the medical, surgical, and hospital
treatment, including nursing, medical, and surgical supplies arid
appliances; as may reasonably be required at the time of the injury
and thereafter during disability, or as may be required for the cure
and treatment of an occupational disease. The employer's
obligation to pay the benefits specified in this section shall
continue for so long as the employee is disabled regardless of the
duration of the employee's income benefits. In the absence of ·
designation ofa managed health care system by the employer, the
employee may select medical providers to treat his injury or
occupational disease. Even if the employer has designated a .
managed health care system, the injured employee may elect to
continue treating with a physician who provided emergency
medical care or treatment to the employee. The employer, insurer,
or payment obligor acting on behalf of the employer, shall make all
payments for services rendered to an employee directly to the
provider of the services within thirty (30) days of receipt of a
statement for services. The comtpfasioner shall promulgate .
administrative regulations establishing conditions under which the
thirty (30) day period for payment may be tolled. The provider of
medical services shall submit the statement for services within
forty-five (45) days of the day treatment is initiated and every forty-
five (45) days thereafter, if appropriate, as long as medica). services
are rendered. Except as provided- in subsection (4) of this section,
in no event shall a medical fee e;xceed the limitations of an adopted
medical fee schedule or other limitations contained in KRS
342.035, whichever is lower. The commissioner may promulgate
administrative regulations establishing the form and content of a
statement ·for services and procedures by which disputes relative to
the nec~ssity, effectiveness, frequency, and cost of services may be
resolved. ·

(Emphasis added.)

16
\
 There is no definition of "medical provider'' in KRS. Chapter 342.

However, KRS 342.0011(15) defines "medical services" as: "medical, surgical,

dental, hospital, nursing, and medical rehabilita:tion services, medicines, and

fittings for artificial or prosthetic devices." (Emphasis added.) As.did the Court
) .

of Appeals, we hold that the plain meaning of these two statutes is that a

·. medical provider is one who provides medical services. Since medicines are

"medical services," and a pharmacist provides that medical service, a

pharmacist is a medical provider .. Therefore, absent an employer's

participation in a managed health care system, claimants are free to choose

which pharmacy to use.

We note KESA's argument that such a holding will "open a door through

which other commercial operators ... could pass." However, if that door has

been opened, it is the General Assembly that opened it, not the Court.

Furthermore, to the extent those other commercial operators are subject to the

appropriate fee schedule, we fail to see how KESA would be harmed by a

claimant exercising that choice.

B. The CALJ correctly interpreted the "pharmacy fee schedule."

The workers' compensation "pharmacy-.., fee schedule" is set forth in 803

KAR 25:092. We put that phrase in quotation marks because this fee schedule

is not what we typically think of as a fee schedule. It does not set out specific

17
reimbursement rates for medications and it does not adopt :anY specific

py.blished schedule. of ;reimbursement rates. 7 Rather it provides as follows:

Any duly licensed pharmacist dispensing pharmaceuticals .
pursuant to KRS Chapter 342 shall be entitled to be reimbursed in
the amount of the equivalent drug product wholesale price of the
lowest priced therapeutically equivalent drug the dispensing
pharmacist has in stock, at the time of dispensing, plus a five (5)
·dollar dispensing fee plus any appliCable federal or state tax or
assessment. . '

803 KAR 25:092 § 2. "Wholesale price" is defined as "the average wholesale

price charged by ~holesalers at a given time." ·803 KAR 25:092 § 1(6).

The CAW interpreted the fee schedule as entitling apharmacist to
reimbursement based on the average wholesale price the pharmacist paid for a

given medication, plus the dispensing fee .. In doing so, the CAW stated that
I

the regulation neither adopted nor excluded the use of a published average

wholesale price guide to determine the appropriate reimbursement rate. The
I

Board and the Court of Appeals agreed with the CALI.

KESA agrees with the CALJ's interpretation of the regulation. However,

it argues on appeal that the evid~nce compelled a finding that the published

average wholesale price cannot ·be the basis for determining reimbursement

rates in this case. IWi> on the other hand argues that the published average

wholesale price can be used and should be used to determine the

reimbursement rate. We address each argument in tum below.

7 It appears from the evidence that the published and actual average wholesale
prices of pharmaceuticals change frequently, with the published guides being updated
frequently.

18

\
 (

KESA is correct that its expert testified that published average wholesale

prices have little to do with actual wholesale prices. However, neither that

testimony nor the regulation itself compel the finding KESA seeks. We note
·.,
that KESA's own witness testified that IWP's prices were in keeping with the

pharmacy fee schedule, testimony the CAW could have chosen to believe.

Furthermore, although M. Joseph claimed that it obtained medication for KESA
'
at an average of 25% l<(SS than the. average wholesale price, spreadsheets filed

by KESA show that the M. Joseph and IWP prices for some medications were

the same. Thus, KESA's proof was, at least in part, inconsistent with its

. argument. Finally, if the Department of Workers' Claims had wanted to

exclude the use of published average wholesale prices, it could have specifically

stated as much in its regulation.

As to IWP's argument, the regulation does not ·mand_ate or eyen suggest

that published average wholesale prices should be used to determine the

appropriate reimbursement rate. Furthermore, IWP's argument to the contrary

notwithstanding, the Commissioner testified that the Department has not
\
taken the position that a published price controls the reimbursement price.

Therefore, IWP's argument that those guides should be the sole arbiter of

reimbursement rates is without merit.

So, how should pharmacy reimbursement rate disputes be resolved? The

sanie way all other disputes under KRS 342 are resolved.' The parties present

\their proof, and the AW makes a determination.
' . '
The AW may, but is not

·required to, take into consideration the published average wholesale price. The

19
 AW may also take into consideration the wholesale acquisition price, which

has some connection to what a wholesaler would charge a retailer. However,

unless the AW determines that the published average wholesale price or the .

wholesale acqui°sition price is the actual average wholesale price the

pharmacist paid, the AW may not simply adopt either of those pricing guides

in toto. s The AW must determine the act~al wholesa'.le price the pharmacist

paid,_ which may or may not have a relevant correlation to either the published

average wholesale price or the wholesale acquisition price. Regardless, the

AW~ by exercising the discretion granted to him or her, must determine what

the appropl_"iate reimbursement rate is under the regulation.

We recognize that this could, as IWP argues, put a considerable strain on

the already busy AWs. That may or may not be the case. However, if that

occurs, the Department can take the appropriate steps to remedy the situation

by amending the regulation.

As to this case, the CAW did not order KESA to reimburse IWP based on

the published average wholesale price that IWP charged. He ordered KESA to

reimburse IWP pursuant to the statute and regulations, which he correctly

interpreted to be the actual average wholesale price IWP paid. However, the

a For the sake of clarity, we are not stating that any of the pricing guides are per
se admissible. Any such guide must be admissible pursuant to 803 KAR 25:010
Section 14, and the AW is free to exercise-his or her discretion in either admitting or
excluding a proffered pricing guide within the confines of that regulation. Based on
the record before us in this case, it appears that the published average wholesale price
guides and the wholesale acquisition price guide may not be particuiarly relevant. ·
However, none of the parties have sought to introduce into evidence any of those
·pricing guides. If a party attempts to do so and there is an objection, the AW must
undertake the appropriate analysis before admitting or excluding any proffered pricing
guides. '

20
 CAW did not make any specific findings regarding the actual average wholesale

price IWP paid for the medications it dispensed.

KESA's argument that its payment to IWP based on the M. Joseph

agreement satisfies the regulation is without merit. As we understand this

argument, KESA believes that the pharmacy benefit management companies

with which it has contractual relationships have established the average

wholesale price through· their -~on tracts with the pharmacies. Thus, by paying

I'~P the M. Joseph price, KESA is paying the actual average wholesale price.

However, th~ regulation states that reimbursement is based on what the

dispensing pharmacy (IWP) paid for medications, not what another dispensing

pharmacy (Walgreens, Kroger, Meijer, etc.) may have paid. Therefore, this

matter must be remanded to the Department for assignment to an AW with

instructions to make findings regarding what IWP's actual average wholesale

price was for the medications at issue·.

Finally, we note that 803 KAR 25:092 § 3(4) provides that "[a]ny

insurance carrier, self-insured employer or group self-insured employer may

enter into an agreement with any pharmacy to provide reimbursement at a

lower amount than that required in this administrative regulation." Thus,

there is no prohibition against the arrangement KESA has with M. Joseph and
' . \
there would be no prohibition agrunst KESA entering into a similar

. arrangement with IWP. However, ·KESA cannot unilaterally impose its M.

Joseph agreement on IWP.

21
 C. The CAW correctly found that KESA is not liable for interest on any
past due amounts it owes IWP.

On remand, the AW may find that KESA does not owe IWP any

additional sums. ·However, because the AW could find otherW'ise, the issue of

interest on past due benefits may arise. Therefore, we address it.

"It is fundamental that administrative agencies are creatures of statute

and must find within the statute warrant for the exercise of any authority

which they claim." Dept. for Nat. Res. and Envtl. Prot. v. Steams Coal & Lumber

Co., 563 S.W.2d 471, 473(Ky.·1978). · KRS 342.040 provides for the

assessment of interest on past due income benefits; however, there is no

corollary for payment of interest on past due medical expense benefits. We

presume that the General Assembly acted intentionally when it proVided for the

payment of interest on past due income benefits while omitting the payment of

interest from past due medical expense benefits. See Turner v. Nelson, 342
.,
S.W.3d 866, 873 (Ky. 2011). Therefore, weagree With the CAW, the Board,

and the Court of Appeals that IWP is not entitled to any interest on any past

/ due payments.

D. The Board· correctly reversed U1e CAW's assessment of costs.

The CAW found that the Attbmey General's opinion did not provide a

reasonable l,~gal or factual basis for KESA's decision to direct the named

claimants to use the M. Joseph program to obtain their medications. In doing

so, the CAW noted that the Attorney General's opinion: (1) stated that the

claimants did not have the right to choose thefr pharmacy, but it did not state

that KESA had the right to make that choice; (2) was based in part on the
22
incorrect assertion that physicians were directing their patients to IWP; ·and (3)

ran counter to a Board opinion. Based primarily on the preceding findings, the

CAW ordered KESA to pay the entire cost of the proceedings. The Board found

that the Attorney General's opinion was sufficient to support KESA's actions.

The Court of Appeals agreed with the Board. We agree with the ultimate

decisions by the Board and the Court of Appeals but for somewhat different

reasons.

KRS 342.310 provides, in pertinerii part, that an AW "may assess the

whole cost of the proceedings" if he determin~s that the proceedings were

"brought, prosecuted, or defended without reasonable ground." Whether tb

assess such cost is within the AW's discretion. Richey v. Perry Arnold, Inc.,

391 S.W.3d 705, 713 (Ky. 2012).

If the only issue before the CAW was whether KESA could direct the

claimants to use KESA approved pharmacies, we might J:>e convinced that the

Board and the Court of Appeals. overstepped their bounds. It was within the

CAL.J's discretion to find that the opinio·n of the Attorney General was not a

sufficient basis to support KESA's action, particularly in the face of a Board ·

opinion to the contrary. However, as the litigation progressed, the

interpretation of KAR 25:092 became an issue as did the appropriateness of

IWP's charges·. This was an issue of first impression, which KESA had a

reasonable legal and factual basis to challenge. Because the CAW did not

factor this issue into his decision to assess costs, he abused his discretion.

23
Therefore, we affirm the Court of Appeals and the Board in, their reversal of the

CAW's assessment of the cost of the proceedings against KESA.

IV. CONCLUSION.

For the foregoing reasons, we affirm the Court of Appeals opinion

regarding the assessment of interest and sanctions. We also affirm the Court

of Appeals that a pharmacy is a medical provider. However, we vacate the

remainder of the Court of Appeals opinion and remand because the CAW did

not make a determination regarding the actual average wholesale price paid by

IWP. On remand, the AW, or CAW if appropriate, must determine what IWP's

actual average wholesale price was for the- contested medications. The AW, or

CAW if appropriate, may reopep. proof if he or she deems it necessary to do so. -
( -
Minton, C.J.; Cunningham, Hughes, Keller, Venters, JJ., and Spedal

Justices David Samford and Kimberly McCann, sitting. All concur. VanMeter

and Wright, JJ., not sitting.

24
 COUNSEL FOR APPELLANTS/CROSS-APPELLEES, STEEL CREATIONS, BY
AND THROUGH KESA, THE KENTl!CKY WORKERS' COMPENSATION FUND;
MURRAY ELECTRONICS, BY AND THROUGH KESA, THE. KENTUCKY
WORKERS' COMPENSATION FUND; FAMILY ALLERGY AND ASTHMA, BY AND
THROUGH KESA, THE KENTUCKY WORKERS' COMPENSATION FUND; AND
SAMARITAN ALLIANCE, BY AND THROUGH KESA~ THE KENTUCKY
WORKERS' COMPENSATION FUND:

Joseph L. Ardery
Griffin Terry Sumner
Frost Brown Todd, LLC
\
James. Gordon Fogle
Fogle Keller Purdy, PLLC

COUNSEL FOR APPELLANT/ CROSS-APPELLEE, PRESTON HIGHWAY
·METERED CONCRETE, BY AND THOUGH KESA, THE KENTUCKY WORKERS'
COMPENSATION FUND: .

Joseph L. Ardery
Griffin Terry Sumner
Frost Brown Todd, LLC

James Gordon Fogle
Fogle Keller Purdy, PLLC

Natalie Laszkowski
Fulton- & Devlin, LLC

COUNSEL FOR APPELLEE/ CROSS-APPELLANT, INJURED WORKERS'
PHARMACY:

Charles E. Jennings

Eric M. Lamb
Lamb & Lamb, PSC

COUNSEL FOR APPELLEES /CROSS-APPELLANTS, KEVIN KERCH AND
DONALD GRAMMER:

Charles E. Jennings

25
COUNSEL FOR APPELLEE/CROSS-APPELLANT, KEM BARNES:

Jeffery Roberts
Roberts Law Office

COUNSEL FOR APPELLEE/CROSS-APPELLEE, RITA MERRICK:

McKinnley Morgan
Morgan Collins & Yeast

COUNSEL FOR APPELLEE/CROSS-APPELLEE, SHAUNA LITTLE F/K/A
HARDIN:

Paul Guthrie

COUNSEL FOR APPELLEE/CROSS-APPELLEE, JACK CONWAY, ATTORNEY
GENERAL:

Andy Beshear
Attorney General of Kentucky

James Robert Carpenter
Assistant Attorney General

COUNSEL FOR AMICUS CURIAE, INSURANCE INSTITUTE OF KENTUCKY:

Kenneth J. Dietz
Lucas & Dietz, PLLC

COUNSEL FOR AMICUS CURIAE, ~NTUCKY ASSOCIATION OF GENERAL
CONTRACTORS: .
I

Gregory Lonzo Little
Ferreri Partners PLLC