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The Pennsylvania Commonwealth Court issued a precedential decision today, requiring employers to reimburse for out-of-pocket medical marijuana expenses. Fegley v. Firestone Tire & Rubber (Workers’ Compensation Appeal Board) (Pa. Commw. Ct. March 17, 2023).
The claimant’s injury occurred in 1977. In January of 2019, after over three decades, two surgeries, and the use of prescribed opiates and narcotics, the claimant began using medical marijuana at the recommendation of his doctor. His pain level improved, and he was able to wean himself off previously prescribed narcotics. In September of 2019, a Utilization Review found the claimant’s medical marijuana use reasonable and necessary. On October 28, 2019, the claimant filed a Penalty Petition alleging that Firestone Tire & Rubber, his employer, violated the Pennsylvania Workers’ Compensation Act by failing to reimburse him for the costs of medical marijuana treatment. The Workers' Compensation Judge concluded that the employer did not violate the Workers' Compensation Act, and on appeal, the Workers' Compensation Board agreed. The claimant appealed.
In reversing the Workers’ Compensation Board’s decision, the court considered the interplay of several state and federal laws.
The court addressed Section 2102 of Pennsylvania’s Medical Marijuana Act (“MMA”). Section 2102 of the MMA provides that “Nothing in this act shall be construed to require an insurer or health plan, whether paid for by Commonwealth funds or private funds, to provide coverage for medical marijuana.” 35 P.S. § 10231.2102.
First, the court addressed the definition of “insurers” in Section 2102. The claimant argued that workers’ compensation carriers are not “insurers” under Pennsylvania Insurance Law because payment of medical bills in the workers’ compensation system is governed by the Pennsylvania Workers' Compensation Fee Schedule, not by the Insurance Law. The court disagreed, finding that, because workers’ compensation carriers are regulated by and must adhere to the Insurance Law, they are insurers for the purposes of the MMA.
The court went on to discuss the distinction between providing coverage and reimbursement. In doing so, they noted that the language of the MMA clearly states that insurers must not be required to provide coverage for medical marijuana. At the same time, the Pennsylvania Worker’s Compensation Act mandates workers’ compensation carriers to reimburse claimants for out-of-pocket costs of medical treatments that have been found to be reasonable and necessary for work-related injuries. According to the court, the “MMA in no manner alters these preexisting employment rights and obligations.” It concluded that no statutory language “prohibits insurers from reimbursing claimant who lawfully use medical marijuana to treat an accepted work injury when such treatment is medically reasonable and necessary.” The Court went on to state that if the General Assembly had intended to do so, it would have expressly excluded reimbursement for medical marijuana expenses, as other states have explicitly done in their relevant statutes. Instead, the intention of the MMA was for Pennsylvania “residents suffering from intractable pain to have the benefit of this therapy, and at the same time … not to limit claimants from receiving their statutory rights.”
Lastly, the court considered the interplay between the MMA and the Federal Drug Act. Section 2103 of the MMA mandates that nothing in the MMA “shall require an employer to commit any act that would put the employer or any person acting on its behalf in violation of Federal law.” 35 P.S. § 10231.2103. Section 841(a) of the Federal Drug Act provides that it is “unlawful for any person knowingly of intentionally … to manufacture, distribute, or dispense … a controlled substance.” 21 U.S.C. § 841(a). The court concluded that reimbursement of out-of-pocket expenses for medical marijuana would not cause an employer’s workers’ compensation carrier to violate federal law because such reimbursement is not the manufacturing, distribution, or dispensing of medical marijuana.
Based on its interpretation of the statutes discussed above, the court concluded that the employer’s failure to reimburse the claimant’s out-of-pocket expenses for medical marijuana is a violation of the Workers’ Compensation Act. This precedent will have immediate consequences for Pennsylvania employers and their carriers as reimbursement for medical marijuana treatment of accepted injuries will now be required in Pennsylvania when such treatment is reasonable, necessary and causally related to the acknowledged work injury.
