Francis X. Wickersham

Teresa Fegley, as Executrix of the Estate of Paul Sheetz v. Firestone Tire & Rubber (WCAB); No. 680 C. D. 2021; filed March 17, 2023; by Judge Covey AND Edward Appel v. GWC Warranty Corp. (WCAB); 824 C.D. 2021; filed March 17, 2023; by Judge Covey 

In their own version of March Madness, a divided Commonwealth Court issued two precedential opinions on the issue of reimbursement for out-of-pocket expenses incurred by claimants for medical marijuana. In both, the Commonwealth Court held that the claimants should be reimbursed for medical marijuana being used to treat their work injuries. 

The relevant facts in each case are familiar. In Fegley, the claimant struggled with chronic pain for a 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. In Appel, the claimant underwent two low back surgeries following a 2006 work injury. He gradually weaned himself off of all opioid medications, but not without consequences, in the form of significant withdrawal symptoms. The claimant began using medical marijuana during the weaning process and said it was more effective than any medication he had taken for his pain. 

The employer in Fegley filed a request for Utilization Review and it was determined that the medical marijuana was reasonable and necessary. Thirty days later, after reimbursement was not made, the claimant filed a Penalty Petition. The Workers’ Compensation Judge (WCJ) dismissed the Penalty Petition on the basis that reimbursement would result in the workers’ compensation carrier committing a violation of federal law. The Workers’ Compensation Appeal Board (Board) affirmed, citing Section 2102 of Pennsylvania’s Medical Marijuana Act (MMA) as precluding insurers from paying for medical marijuana. In the Appel case, litigation was initiated by the claimant, who filed a Petition to Review Medical Treatment and sought a court order for reimbursement of his medical marijuana. Although the WCJ found the medical marijuana to be related to the injury, the WCJ also concluded that the claimant failed to show reimbursement was required under Section 2102 of the MMA, and the Board affirmed. 

The Commonwealth Court considered various arguments made in support of reimbursement for medical marijuana. A primary argument raised by the claimant in Fegley was that while Section 2102 of the MMA may preclude coverage (direct payment), it did not preclude reimbursement. In Appel, the claimant took the position that although the MMA did not require coverage, it did not prohibit it either. Both claimants maintained that payment for medical marijuana for treatment of a work injury would not cause the employers to violate the Federal Drug Act or be at risk for doing so. 

In each case, 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. Collectively, the Court rejected the position taken by the employers, which was that federal law and Section 2102 of the MMA prevented them from paying for an injured worker's 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.”

It is anticipated that the Pennsylvania Supreme Court will hear appeals in these cases, where they will be confronted with the issue faced by other state appellate courts with varying results, which is the conflict that exists between state laws that permit medical marijuana and the Federal Controlled Substances Act (CSA), under which marijuana is classified as an illegal, Schedule I drug with no medicinal benefit. For now, employers and carriers should proceed with caution, as denials for reimbursement of medical cannabis that is reasonable, necessary and causally related to the injury is potentially a penalty situation.  

These cases can still be defensible. Please contact us with any questions. 
 

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