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Rulings in Pennsylvania clear red tape for pot reimbursement

Posted On: Mar. 22, 2023 6:55 AM CST


Two recent appeals court decisions in Pennsylvania have cleared the way for medical marijuana reimbursements for injured workers who qualify for its use, and insurance and legal experts are mixed on whether the move is a good one.

Proponents say the rulings provide workers access to a legitimate therapeutic drug, while others say the ruling could create other liabilities for employers.

The Pennsylvania Commonwealth Court in Fegley v. Firestone Tire & Rubber ruled that the state’s Workers’ Compensation Appeal Board erred when it upheld a decision by Firestone Tire & Rubber to deny reimbursement for the cost of an injured worker’s medical marijuana. That same court in Appel v. GWC Warranty Corp., also handed down Friday, reversed a WCAB decision denying a reimbursement request for medical cannabis.

“This is a game-changer for those injured workers who have worked hard to get off dangerous and expensive opioids and are forced to pay the cost of medical marijuana treatment out of their fixed incomes,” said Jenifer Kaufman, the Abington, Pennsylvania-based attorney who represented the worker in Fegley.

Paul Armentano, Washington-based deputy director of the marijuana advocacy group National Organization for the Reform of Marijuana Laws, known as NORML, said such rulings are in line with where states are going with the issue of medical marijuana reimbursement, despite some setbacks for those seeking reimbursement.

Five states — Connecticut, New Hampshire, New Jersey, New Mexico, and New York – explicitly allow for employees to have their medical cannabis expenses reimbursed. By contrast, seven states expressly prohibit workers compensation insurance from reimbursing medical marijuana-related costs — Maine, Massachusetts, Minnesota, Florida, North Dakota, Ohio, and Washington, according to NORML.

Meanwhile, court rulings in several states, including New Jersey, Maine and New Mexico, have prompted insurers to pay for medical marijuana.

“For millions of patients, cannabis is a legitimate therapeutic option,” Mr. Armentano wrote in an email. “More and more, state laws and regulations — as well as the courts — are recognizing this fact and evolving their policies accordingly.”

Both rulings in Pennsylvania were split, with dissenters arguing that insurers should not pay for controlled substances, in line with federal law that holds marijuana is illegal.

Employers are still struggling with the issue.

The employer in the Fegley case argued it would violate federal law if it were forced to reimburse for medical marijuana; the court, however, ruled reimbursement is not a federal crime because insurers are not prescribing the drug.

In the Appel ruling, the majority wrote that while the state’s Medical Marijuana Act “does not require an insurer to provide coverage, it does not prohibit an insurer from covering it either.”

Bradley Andreen, Pittsburgh-based senior counsel for Rulis & Bochicchio LLC and editor of the Pennsylvania Bar Association Workers’ Compensation Law Section Newsletter, said rulings compelling insurers to cover unstudied medical marijuana raise more questions and issues regarding dosing and side effects — issues that put insurers on the hook if adverse events occur.

There's no indication of levels of THC, for example, he said. THC is the hallucinogenic element in marijuana that causes impairment.

“If the claimant is getting treatment for the work injury and is involved in a car accident, driving to and from the treatment, that could potentially still be found to be in the course of employment,” Mr. Andreen said.

“What happens if a person says that they were in an accident because of drowsiness from being on medical marijuana, and we've had to reimburse the medical marijuana? Is that opening up the door now to liability for subsequent injuries?”

Christy Thiems, assistant vice president, workers compensation, for the American Property Casualty Insurance Association, wrote in an email that the organization is “more in agreement with the dissenting opinions which found that reimbursement of medical marijuana treatment does constitute dispensing a controlled substance and therefore should not be permitted under Pennsylvania law.”

William McDevitt, Philadelphia-based partner at Wilson Elser LLP, wrote in an email that insurer liability on providing access to the federally illegal drug is likely not an issue, based on the Fegley ruling.

“It can be assumed that workers comp carriers would like to avoid potential liability that could arise from prescribing or delivering medical treatments, be it from medical marijuana or opioids,” he wrote. “This ruling clarifies that under Pennsylvania’s (Medical Marijuana Act) the act of reimbursement is a distinct and, arguably, distant function from the direct provision of medical care.”