Over the past several years, PA has legalized the use of medical marijuana. Given the current difficulties in dealing with the opioid epidemic, this would seem to be a reasonable tool to help injured workers (and anyone else suffering from chronic pain) deal with their conditions without the use of narcotic medications. The controversial status of marijuana, and both PA and Federal law, however, gave us great uncertainty as to whether use of medical marijuana would be covered under the Pennsylvania Workers’ Compensation Act. Two recent decisions by the Commonwealth Court of Pennsylvania answer this question quite clearly in the affirmative.
Notably, the Medical Marijuana Act [MMA] specifically states that “Nothing in [the MMA] shall be construed to require an insurer or a health plan, whether paid for by Commonwealth funds or private funds, to provide coverage for medical marijuana.” Additionally, marijuana remains illegal under Federal law. These two factors have made payment for medical marijuana under the PA Workers’ Compensation Act (Act) nearly impossible. Until now.
The two companion cases on this issue of first impression are Appel v. GWC Warranty Corporation (Workers’ Compensation Appeal Board) and Teresa L. Fegley, as Executrix of the Estate of Paul Sheetz v. Firestone Tire & Rubber (Workers’ Compensation Appeal Board). Both of these injured workers suffered from severe pain, one from multiple back surgeries and the other from several conditions, including “herniated disc at L5-S1, cervical sprain, disc herniation at L4-L5, lumbar radiculopathy, cervical strain with cervical myofascial spasm, major depression, and aggravation of cervical degenerative spondylosis of degenerative disc disease.”
Both of these injured workers endured severe and chronic pain, which was being handled by copious amounts of opioid medications. Each injured worker was able to switch to medical marijuana, reducing their narcotic intake, and each workers’ compensation insurance carrier refused to reimburse the injured worker for the medical marijuana.
While the petitions which were being litigated varied between the two cases (one involved a Petition to Review Medical Treatment and/or Billing, and the other a Petition for Penalties), the reasoning of the Court was identical, giving us the companion decisions.
Initially, the Court noted that there is no dispute in these cases that the medical marijuana is reasonable and necessary, and that its use is related to the work injury. The Court further cited the clear statement within the Act that a workers’ comp insurance carrier is responsible for reasonable and necessary medical treatment which is related to the work injury.
The Court then noted that while “coverage” for medical marijuana may not be required under the MMA, there is nothing said about “reimbursement,” which is not the same thing. Moreover, the Court also observed that, “While a plain reading of the statute does not require an insurer to provide coverage, it does not prohibit an insurer from covering it either.”
To deny reimbursement for reasonable, necessary and related medical care would, in itself, violate the Act, said the Court. The policy statement for the MMA even notes that “Scientific evidence suggests that medical marijuana is one potential therapy that may mitigate suffering in some patients and also enhance quality of life.” Since the Pennsylvania Workers’ Compensation Act is intended to benefit injured workers, it must be given meaning to provide relief to an injured worker.
As to the issue with Federal law, the Court related that Federal law only states, “it shall be unlawful for any person knowingly or intentionally — [] to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance[.]” By reimbursing an injured worker for medical marijuana, a PA workers’ compensation insurance carrier would not run afoul of Federal law. As such, that is not a reasonable basis upon which such a payment could be denied.
As attorneys who represent injured workers across Pennsylvania, we applaud the Commonwealth Court for making clear that an injured worker in PA should not have to choose between the devastating effects of endless use of narcotic medications and accepting unbearable and unrelenting pain. This kind of common-sense approach is wonderful to see. Given the attention given to the opioid epidemic, this can only be seen as win for society in general.