Medical Marijuana Reimbursement Under the PA Workers' Compensation Act

In a pair of opinions filed on March 17, 2023, the Pennsylvania Commonwealth Court concluded that insurers must reimburse claimants who lawfully use medical marijuana to treat an accepted work injury when the use of medical marijuana is reasonable and necessary. The opinions in Fegley, as Executrix of the Estate of Paul Sheetz v. Firestone Tire & Rubber (WCAB) and Appel v. GWC Warranty Corporation (WCAB), both penned by Judge Anne E. Covey, reach the same conclusion but through different paths to the Court.

In Fegley, claimant filed a Penalty Petition alleging that the employer violated the PA Workers’ Compensation Act (WC Act) by failing to pay for his medical marijuana treatment, despite a determination declaring that the treatment was reasonable and necessary. The Penalty Petition was denied by the WC Judge and the decision was affirmed by the WC Appeal Board. Claimant then appealed to the Commonwealth Court.

In Appel, claimant filed a Review Medical Petition seeking a determination that his use of medical marijuana was causally related to his work injury and an order directing the employer to reimburse him for the cost. The WC Judge determined that claimant’s use of medical marijuana was related to the accepted work injury, but declined to require reimbursement by the employer. The decision was affirmed by the WC Appeal Board and the appeal to the Commonwealth Court followed.

In both opinions, a nearly identical analysis of the relevant law was conducted. This included portions of the WC Act, the PA Medical Marijuana Act, the Federal Drug Act and a provision of the Federal Consolidated Appropriations Act. Both opinions also included a comparison with laws of other states that have enacted a medical marijuana statute. Ultimately, Judge Covey concluded that there is a distinction between providing coverage for a treatment and reimbursing the out-of-pocket expense of a treatment. So, although the specific language of the PA Medical Marijuana Act states that an insurer cannot be required to provide coverage for medical marijuana, the statute does not prohibit coverage or reimbursement. And because the WC Act mandates employers to reimburse claimants for out-of-pocket costs of reasonable and necessary treatment related to the work injury, employers are required to reimburse claimants for medical marijuana.

In a dissenting opinion, Judge Christine Fizzano Cannon argued that the unsettled nature of this dispute makes it one for the legislature, not the courts, to determine as it requires the striking of a balance of policies. She further argues that medical marijuana cannot be reasonable and necessary treatment under the WC Act since it remains illegal under federal law.

To date, no further appellate action has been taken on either of these cases. However, legislation has been offered to codify the requirement of insurers to reimburse claimants for the out-of-pocket cost of medical marijuana. That proposed legislation sits in committee and will be watched closely by all interested parties. But for now, if the qualifying standards are met by claimant, the out-of-pocket expense of medical marijuana must be reimbursed by the insurer.

Written by Attorney David Miller