June 7, 2017

Maine WC Appellate Division Places Burden on Employee to Prove Unavailability of Generic Prescription Drugs

Maine Workers' Comp Alert

In Belanger v. Miles Memorial Hospital, Me. WCB App. Div. No. 17-23 (May 25, 2017), Miles Memorial Hospital appealed from a decision of an ALJ granting, among other things, an employee’s Petition for Payment of Medical and Related Expenses, in part. The employer argued that the ALJ erred in failing to apply 39-A M.R.S.A. § 206(11) to deny payment for brand-named drugs. The Appellate Division vacated and modified in part the decision to the extent it required payment for brand-named drugs.

Section 206(11) (“Generic Drugs”) states, “[p]roviders shall prescribe generic drugs whenever medically acceptable for the treatment of an injury or disease for which compensation is claimed. An employee shall purchase generic drugs for the treatment of an injury or disease for which compensation is claimed if the prescribing provider indicates that generic drugs may be used and if generic drugs are available at the time and place of purchase under subsection 11-A. . . .”

The 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 employer alternatively argued that the burden of proof on the issue of whether generic drugs were available rests with the employee, and thus, the lack of evidence on this issue should have resulted in a denial of the employee’s claim for reimbursement of the cost of brand name drugs.

The Appellate Division read § 206(11) to place an affirmative obligation on providers to prescribe generic drugs and on employees to use the generic version if two conditions are met: (1) the provider has indicated that the generic version is appropriate; and (2) the generic version is available at the time and place of purchase. Except in unusual circumstances, the party filing a claim bears the burden of proof on all elements of that claim. The Appellate Division found “no reason to alter that burden in this circumstance.” Further, “[i]t is the employee who is present at the time and place of purchase of any medication. Placing the obligation on the employee to show unavailability of the the generic version of a drug is consistent with the affirmative burden placed upon employees by section 206(11), and is not an onerous burden.”

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