Key Takeaways:

• The Commonwealth Court has issued multiple opinions addressing payment of medical marijuana and CBD oil prescriptions per the Pennsylvania Workers’ Compensation Act

• Employers/carriers will be responsible for reimbursement to the claimant for any payments made for CBD/medical marijuana

• Denial and/or refusal to pay on the grounds that payment is a violation of Federal Law is no longer a viable approach

In 2023, there were several separate Commonwealth Court opinions that addressed payment of medical marijuana and CBD oil prescriptions per the PA Workers’ Compensation Act.

On March 17, 2023, the court first issued opinions for both 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 Fegley v. Firestone Tire & Rubber (Workers’ Compensation Appeal Board), 291 A.3d 940 (Pa. Cmwlth. 2023), the Commonwealth Court held that the employer/carrier was required to reimburse the claimant for medical marijuana after he submitted his prescription and receipts. In Fegley, the claimant filed a penalty petition against the employer for failure to pay/reimburse the claimant for out-of-pocket expenses for medical marijuana treatment, which was prescribed. The court in Fegley concluded that the employer/carrier violated the Act for the failure 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.

In Appel, 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 ultimately concluded that: where a statute does not prohibit insurers from covering medical marijuana, and where it is found that lawful medical marijuana use was causally related to the work injury, the Act mandates that the employer reimburse claimant’s out-of-pocket expenses and costs of medical treatment which has been found to be reasonable and necessary for their work-related injury. Appel v. GWC Warranty Corp. (WCAB.), 291 A.3d 927, 935 (Pa. Cmwlth. 2023).

More recently, on November 14, 2023, the Commonwealth Court issued its opinion in the matter of Schmidt v. Schmidt, Kirifides and Rassias, PC (WCAB), No. 1039 C.D. 2021 (Pa. Cmwlth. 2023). As in Fegley, 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 court determined that requiring the employer/carrier to pay for the CBD oil would violate federal law, as CBD is not marijuana or medical marijuana and does not fall under the federal restrictions related to those substances.

The Commonwealth Court further held that the claimant was not required to submit billing forms and medical reports, as required of treatment providers, because the claimant’s physician was credible that the CBD oil is not a drug, but instead a “dietary supplement.” Claimant was further not required to submit billing forms and medical reports for reimbursement because a claimant is not a healthcare provider requesting payment under section 306(f.1)(5) of the Act. The claimant only had to submit the prescription for CBD oil and the receipts.

Finally, the court decided that the evaluation of whether a claimant’s CBD oil use is reasonable and necessary is an issue to be raised in a UR petition, such that this avenue is available to employers/carriers attempting to avoid reimbursement. Even without the typical billing forms and HCFAs, UR would be the proper way to object to paying for the prescription.

The Results of the Court’s Findings

It is clear at this point that the courts are holding that if a claimant has a prescription from his physician for CBD and/or medical marijuana, which the claimant fills and pays for, the employers/carriers are responsible for reimbursement to the claimant. As of right now, until otherwise decided by the Pennsylvania Supreme Court, there appears to be no further argument or debate that CBD/medical marijuana is not payable/reimbursable based on federal law. Employers/carriers will be responsible for reimbursement to claimant for any payments made for CBD/medical marijuana.

A denial and/or refusal to pay on the grounds that payment is a violation of federal law is no longer a viable approach. Of course, denial could be appropriate where there is an argument and medical support that the “treatment” and prescription are not related to the accepted injury(s).

Additionally, the UR process regarding the reasonableness and necessity is still a viable resource, which has been reiterated by the Commonwealth Court, despite claimants not being required to submit the typical billing forms or medical reports. Even without any HCFAs, LIBC-9s, and/or corresponding medical records, the UR process is the only way to object to paying for the prescriptions. Any other means of refusing to pay for the “treatment” would almost certainly be a violation of the Act, resulting in a penalty petition and potential penalties.

What appears to be required and submitted by the claimant is the prescription from the physician and receipts showing payment. The procedure in which to UR a prescription would be through a review of the treatment of the prescribing physician.