PA Commonwealth Court Orders Workers’ Compensation Medical Marijuana Reimbursement
The Pennsylvania Commonwealth Court issued two Opinions on March 17, 2023 addressing the compensability of medical marijuana under the Pennsylvania Workers’ Compensation Act in an attempt to clarify the apparent conflict between Pennsylvania's Medical Marijuana Act (MMA), its Workers’ Compensation Act, and federal law.
- Fegley, as Executrix of Estate of Paul Sheetz v. WCAB(Firestone Tire & Rubber), ___ A.3d ___ (Pa.Cmwlth. 2023)
- Edward Appel v. WCAB (GWC Warranty Corporation), ___ A.3d ___ (Pa.Cmwlth. 2023).
Fegley Relevant Factual and Procedural History
In Fegley, the Claimant sustained a work-related injury on September 19, 1977 which resulted in many years of medical treatment, including two back surgeries. He was prescribed a number of opiates and narcotics to treat chronic pain, including OxyContin and Diazepam. In 2019, Claimant began taking medical marijuana which allowed him to wean from both OxyContin and Diazepam. On September 18, 2019, a Utilization Review (UR) Determination concluded that the use of medical marijuana was both reasonable and necessary. Claimant then filed a Penalty Petition in which he alleged that the employer violated the Act by failing to pay for the medical marijuana in light of the UR Determination.
Fegley Appellate Litigation
After litigation, the WCJ denied the Penalty Petition and Claimant appealed to the Board, which affirmed. Claimant then appealed to the Commonwealth Court arguing four issues:
- Whether Defendants waived the defense that Section 2102 of the MMA applied;
- Whether the WCAB erred in finding that Section 2102 of the MMA applies to workers’ compensation and overrides the Workers’ Compensation Act’s mandate that reasonable, necessary and related medical treatment be paid;
- Whether the WCAB erred in finding that Section 2102 of the MMA precluded reimbursement to the Claimant even if treatment was reasonable and necessary; and
- Whether the WCAB erred by failing to address and reverse the WCJ’s Order denying the Penalty Petition on the basis that paying for medical marijuana would cause the carrier to violate federal law.
The Commonwealth Court addressed each issue in turn. From a procedural standpoint, the Court held that the employer did not waive the argument that Section 2102 of the MMA applied to a workers’ compensation carrier. Second, the Court held that Section 2102 did, in fact, apply to workers’ compensation insurance carriers as they properly met the definition of an “insurer” under the Insurance Law of 1921.
Third, the Court examined Claimant’s argument that Section 2102 of the MMA only prohibits an insurer from being compelled to provide coverage for medical marijuana, as opposed to reimbursement. Claimant argued coverage implies payment directly to a provider, whereas reimbursement is payment by the insurer to the patient for an incurred expense. The Worker’s Compensation Act requires an insurer to reimburse an injured worker for reasonable and necessary medical expenses incurred out of pocket. As the MMA did not define “reimbursement,” and did not specifically exclude reimbursement by a carrier, as it did coverage for medical marijuana, the Court held that an employer/carrier is required to reimburse an injured worker for out-of-pocket expenses incurred to secure medical marijuana. In a footnote, the Court discussed at length the fact that the vast majority of medical marijuana laws enacted in other states specifically address the requirement of reimbursement and coverage. As Pennsylvania’s statute did not do so, the Court reasoned that the legislature intended only to exclude coverage for medical marijuana by an insurance carrier, but not reimbursement.
Fourth, and finally, the Court held that there was no violation of federal law by requiring an insurance carrier/employer to reimburse an injured worker for medical marijuana as such a payment was not the provision of, manufacture of, or delivery of a controlled substance.
Appel Relevant Factual and Procedural History
On March 1, 2006, Appel, the Claimant, sustained a work-related injury to his lower back. Claimant underwent extensive treatment including two back surgeries and continued to experience chronic pain thereafter for which he was prescribed opioids by his treating physician. He eventually weaned himself off the medication by September,2018, but experienced withdrawal symptoms during the step-down process. To replace his pain medication, Claimant began using medical marijuana, which he testified was more effective in controlling his pain than opioids.
Claimant instituted litigation in October 2018 on a Petition to Review Medical Treatment and/or Billing in which he sought a determination that the use of medical marijuana was causally related to his work injury and further sought reimbursement of his out-of-pocket costs for the use of medical marijuana.
The WCJ ultimately denied the Petition to Review, holding, in part, that although Claimant had established that the medical marijuana was reasonable and necessary for the work injury, he had failed to establish that the employer was responsible for reimbursing him, as Section 2102 of the MMA did not require an insurer/health plan to provide coverage for medical marijuana. Claimant appealed to the WCAB which affirmed.
Appel Appellate Litigation
On appeal to the Commonwealth Court, Claimant argued the Board erred in holding that an employer/carrier could not be required to pay for medical marijuana under the MMA and the Workers’ Compensation Act.
The Commonwealth Court again examined the MMA and the Federal Controlled Substances Act. Relying on its Opinion in Fegley, the Commonwealth Court held that while the MMA did not require an employer/carrier to provide coverage for medical marijuana, coverage is “different and distinct from reimbursement,” and there is no statutory language which prohibited the reimbursement to a Claimant for costs incurred for the lawful use of medical marijuana.
Again, relying on the humanitarian nature of the Workers’ Compensation Act, the Court held that refusing to provide reimbursement for medical marijuana would effectively deny access to the drug in direct violation of the MMA and deny access to treatment for a work injury.
The Court has clarified that while the MMA does not require coverage for medical marijuana by workers’ compensation insurers in the Commonwealth of Pennsylvania, nothing in the MMA or the Workers’ Compensation Act precludes reimbursement to a claimant, as opposed to payment of a provider. Further, the Court held that denial of reimbursement costs incurred for lawful use of medical marijuana is a violation of the Act. Provided that medical marijuana is reasonable and necessary for a work injury and a Claimant is lawfully using the drug under the MMA, failure to make payment could now subject an employer/carrier to penalties under the Workers’ Compensation Act.
Utilization Review of medical marijuana could prove challenging as direct billing for medical marijuana is unlikely, and the regulations currently only allow for utilization review of providers. However, in theory one could seek utilization review by identifying the provider who prescribes medical marijuana then submit the request to the bureau within 30 days of receipt of the request for reimbursement. Alternatively, one could seek a prospective Utilization Review of the treatment once the prescribing provider has been identified, before voluntarily reimbursing the injured worker for medical marijuana.
In the interim, a pro forma denial of medical marijuana reimbursement will not be viewed favorably by a Workers' Compensation Judge. Requests for reimbursement should be reviewed timely and either placed in line for prompt payment or challenged to avoid potential penalties under the Workers’ Compensation Act.
Both decisions are likely to be appealed to the Pennsylvania Supreme Court. Post & Schell's Workers' Compensation Department will be monitoring any further developments relative to the compensability of medical marijuana.
Disclaimer: This post does not offer specific legal advice, nor does it create an attorney-client relationship. You should not reach any legal conclusions based on the information contained in this post without first seeking the advice of counsel.
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