Reimbursement on Medical Marijuana Under the PA Workers’ Compensation Act
An injured worker may be prescribed medical marijuana instead of opioid medication due to their addictiveness. An issue a worker may face, however, is that employers generally try and deny having to pay for medical marijuana in order to cut costs, since they want to pay for as little as possible.
We saw several separate Commonwealth Court opinions in 2023 that addressed payment of medical marijuana and CBD oil prescriptions per the PA Workers’ Compensation Act.
On March 17, 2023, opinions were released by the court for Fegley and Appel which address whether medical marijuana is medical treatment under the Act, such that it should be reimbursed and/or or paid for by employers/carriers.
In the case of Appel v. GWC Warranty Corp. (Workers’ Comp. Appeal Bd.), the court had heard an argument from the employer that it is impossible for them to be required to pay for medical marijuana due to its illegality under federal law. The court ruled that the employer was not in violation of Federal Drug Act since the employer was not prescribing marijuana. Instead, they were simply reimbursing the claimant since they were lawfully using medical marijuana.
The employer argued that it could not be compelled to pay for a drug that is illegal under federal law. The court held that since the employer is not prescribing marijuana, but rather reimbursing the claimant for his lawful use thereof, the employer is not in violation of the Federal Drug Act. The court held that where it is lawful that the use of medical marijuana was related to the work injury and that there are no statutes that ban insurers from covering medical marijuana, it is mandated by the Act, if the medical treatment was found to be reasonable and necessary for their work-related injury, that the employer must reimburse the claimant for the out-of-pocket expenses and costs associated with the medical treatment. Appel v. GWC Warranty Corp. (WCAB.), 291 A.3d 927, 935 (Pa. Cmwlth. 2023).
In Fegley v. Firestone Tire & Rubber (Workers’ Compensation Appeal Board), 291 A.3d 940 (Pa. Cmwlth. 2023), the Commonwealth Court decided that while the law does not require employers to cover medical marijuana, they are required to pay back their employees for its expenses if they make the decision to cover it. In the case of Fegley, the claimant filed a penalty petition against their employer due to their failure to pay/reimburse the claimant for out-of-pocket expenses for medical marijuana treatment that was prescribed to them by their physician. The Commonwealth Court in Fegley concluded that the Act was violated by the employer/carrier due to their refusal to reimburse the claimant. As such, it was the court’s determination that, per the Act, employers/carriers are responsible for payment and/or reimbursement of prescribed medical marijuana, and any failure to do so would be a violation of the Act.
On November 14, 2023, the Commonwealth Court in Schmidt v. Schmidt, Kirifides and Rassias, PC (WCAB), No. 1039 C.D. 2021 (Pa. Cmwlth. 2023) ruled that having it be a requirement that the employer/carrier must pay for the CBD oil is a violation of federal law. The reasoning for this is that CBD is not marijuana, nor medical marijuana and is not under the federal restrictions related to those substances. The case is similar to Fegley in that the claimant in Schmidt filed a Penalty Petition for failure to pay/reimburse claimant for out-of-pocket expenses for medical marijuana/CBD oil prescribed by his physician.
The Commonwealth Court also ruled that the claimant was not required to submit neither medical reports nor billing forms, as required of treatment providers, since the claimant’s physician was credible that the CBD oil is not a drug, but that it is considered a “dietary supplement” instead of a drug. The claimant also did not have to submit billing forms, nor medical reports for reimbursement either since a claimant is not found to be a healthcare provider requesting payment under section 306(f.1)(5) of the Act. Instead, the only thing the claimant had to do was submit the prescription for CBD oil and the receipts as well.
The last thing the Commonwealth Court ruled in this case was that when trying to determine whether a claimant’s CBD oil use is reasonable and necessary or not, is an issue that should be raised in a UR petition, such that this avenue is available to employers/carriers attempting to avoid reimbursement. The reasoning for this is that a UR petition would be the proper way to object to paying for the prescription, even without the typical billing forms and HCFAs.
The Current State of Affairs Under the Court’s Holdings.
As of now, the courts have held that if a claimant is filling and paying for their CBD and/or medical marijuana that they received by a prescription from their physician, the employers/carriers must reimburse the claimant for the drug. Currently, there appears to be no further argument or debate that CBD/medical marijuana is not payable/reimbursable based on federal law. However, this may change if the Pennsylvania Supreme Court decides otherwise.
Any employer/carrier who tries to deny reimbursement for their injured worker’s CBD and/or medical marijuana, based on the argument that such payment would violate federal law is no longer optional. A denial, however, may be acceptable if it can be proven that the injury sustained by the claimant is not a work related one.
Additionally, as explained by the Commonwealth Court, the UR process regarding the reasonableness and necessity is still an available path, even though claimants are not being required to submit the typical billing forms or medical reports. Despite no HCFAs, LIBC-9s, and/or corresponding medical records, the UR process is currently the sole way for an objection for the paying of the prescriptions to be made. Since any other ways of refusing to pay for the “treatment” would most likely be found to be in violation of the Act. A violation of the Act would result in a penalty petition and potential penalties.
Top PA Workers’ Compensation Attorneys – RG Injury Law
At RG Injury Law, we specialize in cutting through the complexities of workers’ compensation claims involving medical marijuana and CBD oil. While the laws around CBD oil reimbursement can be tricky, our experienced team is here to ensure you’re fully protected and receive the compensation you deserve. Trust RG Injury Law to navigate these legal challenges and fight relentlessly for your rights. If you’re facing obstacles with your claim, we’re the advocates you need in your corner.
Visit RGInjuryLaw.com for more information and resources.
