PELRAS Update | April 2023 – Pennsylvania Commonwealth Court Rules that Workers’ Compensation Carriers Must Reimburse Claimants for Out-of-Pocket Costs of Medical Marijuana

Ben Patchen, Esq., Campbell Durrant, P.C. | April 2023

On March 17, 2023, the Pennsylvania Commonwealth Court issued a precedential decision holding that workers’ compensation carriers must reimburse claimants for out-of-pocket costs of medical marijuana. Fegley v. Firestone Tire & Rubber (Workers’ Compensation Appeal Board) (Pa. Commw. Ct. March 17, 2023).

The Fegley, case involved an employee who suffered a work-related injury in 1977 and has been treating that injury since then. The employee was prescribed opiates and narcotics for approximately 30 years. In 2019, the claimant’s doctor prescribed him medical marijuana with the hope of eliminating his reliance on the prescribed medication and improving his treatment. The medical marijuana effectively treated his pain and the claimant weaned himself off the opiates he had been taking. The Workers’ Compensation carrier did not reimburse the claimant for his out-of-pocket costs. The Claimant filed a penalty petition, alleging that the employer violated the Workers’ Compensation Act by refusing to pay for his medical marijuana treatment, despite a determination that the treatment was reasonable and necessary.

The Workers’ Compensation Judge and the Workers’ Compensation Board both found that the employer did not violate the Workers’ Compensation Act by refusing to reimburse the employee for his out-of-pocket costs related to medical marijuana. The Commonwealth Court reversed the Workers’ Compensation Board’s decision after reviewing the interplaying state and federal laws at issue.

The Court reviewed the Workers’ Compensation Act and highlighted that the Act is remedial in nature and intended to benefit the worker. After a claimant establishes that an injury is work-related, the burden is on the employer of proving that a medical expense is unreasonable, unnecessary or is not related to the work injury. The Court then analyzed Section 2102 of the Medical Marijuana Act which prohibits an insurer or health plan from being compelled “to provide coverage for medical marijuana.” However, the Court determined that because there was no explicit language in the Medical Marijuana Act prohibiting a workers’ compensation carrier from repaying a claimant for out-of-pocket medical treatment which has been found to be reasonable and necessary for his work-related injury, nothing in the Medical Marijuana Act conflicted with the Workers’ Compensation Act. The Court cited other states law which contained this provision and reasoned that the absence of such a provision was noteworthy. The Court stated that if they interpreted the Medical Marijuana Act in the manner the employer argued, which would prohibit carriers from repaying the costs of medical marijuana, it would undermine the General Assembly’s express intent to provide “access to medical marijuana which balances the need of patients to have access to the latest treatments with the need to promote patient safety.” Finally, the Court reviewed the federal drug law and found that requiring carriers to reimburse claimants for reasonable and necessary treatment of medical marijuana did not violate the Federal Drug Act.

While this decision will likely be appealed, it is important to be aware of this case, as unless employers can meet the burden to show that medical marijuana treatment for a work-related injury is not reasonable and necessary, carriers are required to reimburse claimants for out-of-pocket costs related to the medical marijuana.

The Medical Marijuana Act and its impact on employers in Pennsylvania is a rapidly developing area of the law. Should you have any questions about the Medical Marijuana Act or any other issue, the attorneys at Campbell Durrant, P.C. are available to assist you.