MEDICAL MARIJUANA USE IN A PENNSYLVANIA WORKERS’ COMP CASE

PENNSYLVANIA COURT RULES THAT EMPLOYERS MUST REIMBURSE OUT-OF-POCKET COSTS FOR MEDICAL CANNABIS IN WORKERS COMPENSATION CASE
Date: June 22, 2023

The Pennsylvania Medical Marijuana Act (“MM Act”) was signed into law in 2016. The MM Act states that medical marijuana can be utilized to treat enumerated “serious medical conditions” including severe pain, chronic pain, and spinal cord injuries. However, the MM Act also states that nothing in the MM Act (1) shall be construed to require an insurer or health plan to provide coverage for medical marijuana and (2) shall require an employer to commit any act that would put the employer, or any person acting on behalf of the employer, in violation of Federal law. This “Federal law”, as referenced in the MM Act is the Controlled Substances Act (“CSA”. The CSA defines marijuana as a Schedule I substance meaning that it has a high potential for abuse, that it has no currently accepted medical use in treatment in the United States and a lack of accepted safety for use under medical supervision.

    

With the growing number of physicians prescribing medical marijuana for the treatment of work injuries, attorneys for injured workers and employers faced the dilemma as to whether Federal law (the Controlled Substances Act) preempted state law ( the Pa. Medical Marijuana Act) in deciding the issue as to whether medical marijuana is a reasonable and necessary medical treatment of a work injury and, if so, do employers and insurers bear the responsibility to pay for such treatment.

PENNSYLVANIA COURT RULES THAT EMPLOYERS MUST REIMBURSE OUT-OF-POCKET COSTS FOR MEDICAL CANNABIS IN WORKERS COMPENSATION CASE

On March 17, 2023, the Pennsylvania Commonwealth Court, in the companion cases of Appel v. GWC Warranty Corp. and Fegley v. Firestone & Rubber, ruled that since the Pennsylvania Workers’ Act mandates employers to reimburse injured workers (“claimants”) for an out-of-pocket medical treatment which has been found to be the reasonable and necessary medical treatment of a work injury, the employer is required to reimburse the claimant for his out-of-pocket costs in purchasing the marijuana that was prescribed to treat the work injury. The Court in both opinions references the claimant’s “lawful use” of medical marijuana. Both opinions also note that since the employer is not prescribing marijuana, but rather is “reimbursing the claimant for his lawful use thereof, Employer is not in violation of the Federal Drug Act”.  

     It remains to be seen if the employers/insurance carriers, in either case, will pursue an appeal to the Pennsylvania Supreme Court. But, for the time being, workers’ compensation carriers and employers will bear the responsibility to reimburse injured claimants for the out-of-pocket cost of prescribed medical marijuana, if that treatment is deemed related to a work injury, and if determined to constitute reasonable and necessary medical treatment of a work injury.  

Tom Cummings
Thomas P. Cummings has been a Partner with Dougherty Leventhal & Price, LLP since 1996 and has been with the firm since 1991. He focuses his practice on workers’ compensation, Social Security Disability and personal injury cases.