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

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

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.

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. *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 *7 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 *8 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; *9 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

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.

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.

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

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

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

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.

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 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.

(

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. '

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.

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 *23 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. *24 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.

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 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

Footnotes

[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

[6] The only arguably dispositive deposition taken after September 7, 2012 was an update deposition of KESA's expert, Dr. Rost . .12

[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