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What's Hot in Workers' Comp

Court Holds that While Section 2102 of the Medical Marijuana Act May Preclude Direct Coverage for an Injured Worker's Medical Cannabis by an Insurance Carrier, it Does Not Preclude Reimbursement of Medical Marijuana Used for Treatment of a Work Injury

Teresa Fegley, as Executrix of the Estate of Paul Sheetz v. Firestone Tire & Rubber (WCAB); No. 680 C. D. 2021; filed Mar. 17, 2023

April 1, 2023

by Francis X. Wickersham

In this case, the claimant struggled with chronic pain for a work-related low back injury she sustained in 1997 that resulted in two surgeries. After long-term use of opioid medication, the claimant began using medical marijuana, which she said helped with her pain and helped reduce her opiate usage. The employer filed a request for Utilization Review, and it was determined that the medical marijuana was reasonable and necessary. 

Thirty days later, after the employer failed to reimburse the claimant for her medical marijuana, she filed a Penalty Petition. The Workers’ Compensation Judge dismissed the Penalty Petition on the basis that reimbursement would result in the workers’ compensation carrier committing a violation of Federal law. The Appeal Board affirmed, citing Section 2102 of Pennsylvania’s Medical Marijuana Act (MMA) as precluding insurers from paying for medical marijuana. 

The claimant appealed to the Commonwealth Court and made the primary argument that, while Section 2102 of the MMA may preclude coverage (direct payment), it did not preclude reimbursement. The Commonwealth Court held that reimbursement of a claimant’s out-of-pocket expenses for medical marijuana usage to treat a work injury was required by the Act. The court rejected the position taken by the employer, which was that federal law and Section 2102 of the MMA prevented them from paying for an injured workers’ medical marijuana. The court pointed out that Section 2103 of the MMA specifies: “Nothing in the MMA shall require an employer to commit any act that would put the employer and any person acting on its behalf in violation of Federal law.”

What’s Hot in Workers’ Comp, Vol. 27, No. 4, April 2023, is prepared by Marshall Dennehey to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. We would be pleased to provide such legal assistance as you require on these and other subjects when called upon. ATTORNEY ADVERTISING pursuant to New York RPC 7.1 Copyright © 2023 Marshall Dennehey, all rights reserved. No part of this publication may be reprinted without the express written permission of our firm. For reprints or inquiries, or if you wish to be removed from this mailing list, contact tamontemuro@mdwcg.com.

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