Two Recent WCJ Decisions Deny Requests for MMJ Reimbursement in Pennsylvania. Both Have Been Appealed to the WCAB

It is disappointing to report that a Western PA WCJ recently denied my client's request for MMJ reimbursement.  My client, Ronette Schepis, was injured in 1992 and underwent multiple surgeries on her left knee.  She was on Vicodin and other medications for over 20 years.  She used MMJ (primarily Rick Simpson Oil) to successfully stop use of these medications.  At the time of her testimony, she had been off opioids for about 2 years.

While the Judge agreed that the treatment with Medical Marijuana was beneficial and appropriate, he declined to award reimbursement based upon his interpretation of Section 2102 of Pennsylvania's Medical Marijuana Act.  That Section states that insurance carriers are not required to "provide coverage" for medical marijuana.  I argued to the Judge that coverage and reimbursement are not the same thing.  Furthermore, had the legislature intended to preclude reimbursement, it would have said so in the plain language of the Act.  It was noted that most states that have such provisions in their medical marijuana statues specifically preclude both "coverage" and "reimbursement."  Despite my arguments, the WCJ stated that this was "a distinction without a difference."  The Judge therefore chose not address the issues surrounding the conflict of state and federal law regarding marijuana.   I am appealing to the Workers' Compensation Appeal Board this week.  

A few months ago, a colleague also had a request for reimbursement denied by a Lancaster Judge.  That Judge determined that he could not compel payment, since such an order would place the insurer "at risk of prosecution for violating federal criminal law."  That Judge expressed remorse in his decision, noting that "although this is the correct result  in this case under applicable law, this Judge is compelled to observe that it is the wrong result under the merits."  That case has also been appealed to the WCAB.

Breaking News-Decision Issued Yesterday: NJ Superior Court Directs Workers' Compensation Carrier to Reimburse Injured Worker for Treatment with Medical Marijuana

Vincent Hager v. M & K Construction (Division of Workers' Compensation), Docket
A-0102-18T3 (Superior Court of New Jersey, January 13, 2020).

Yesterday NJ Superior Court directed a workers' compensation carrier to reimburse an injured worker for treatment with medical marijuana.  The court refused to conclude that the Federal Controlled Substances Act (CSA) preempted New Jersey's Medical Marijuana and Workers' Compensation Statutes.

The Court reasoned that the carrier would never be asked to participate in an act by prohibited by the CSA, "possession, manufacture, or distribution of medical marijuana,. This was because reimbursement to Claimant would be none of those things, and further be an act permitted under New Jersey's Medical Marijuana law.  Because it is not physically impossible to comply with the MM Statute and CSA, preemption does not apply.

Second, the court dismissed the argument that the carrier would be aiding and abetting a crime by Claimant, possession.  It reasoned that Claimant would not be guilty of this crime per the MM Act, that one cannot aid or abet a crime after the fact, and that there would be no intent on the part of the carrier to aid and abet a crime.

Finally, the Court reasoned that the carrier faced no credible threat of Federal prosecution in light of the Rohrabacher Amendment which is attached to all Federal appropriations bills since 2014.  It prohibits the use of Federal funds by the Attorney General to prosecute states with medical marijuana laws including New Jersey.. This has been signed into law by our current president twice.

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Medical Marijuana and Workers' Compensation Updates:  Special Employment Law Edition

Two cases in Pennsylvania will test the limits of our Medical Marijuana Law's anti-discrimination provision. The provision states that employers may not refuse to hire an employee or discharge an employee because of their status as a registered medical marijuana patient.   

In Pittsburgh, medical marijuana cardholder Derek Gsell's suit contends that the anti-discrimination provisions were violated when a job offer he received from Universal Electric Corporation was rescinded after he tested positive for THC. The job was primarily an office/desk job.  This is an important caveat, as employers are not required to hire medical marijuana users for jobs involving public safety or that are high risk like bus drivers or hazardous material operators.

Also, in a case out Scranton, medical assistant Pamela Palmiter was fired for her use of medical marijuana when her employer was acquired by Commonwealth Health of Tennessee.  A federal judge has permitted her lawsuit to move forward and concluded that the anti-discrimination provisions of Pennsylvania's medical marijuana law create an implicit cause of action, even though that right to sue is not explicitly stated in the law.  The Judge reasoned that, without he right to sue, these provisions would be meaningless.  This was a disappointment for the employer who had argued federal law prevented such an action from going forward.

Both of these cases will be followed closely by this office given the federal law supremacy issues at stake which mirror those in workers' comp reimbursement cases.  

My Latest Presentations:

Thank you to the PA Self-Insurers Association for the opportunity to speak on medical marijuana and workers' compensation claims alongside Ted Carpenter, Esquire.  The presentation was part of their fall conference held in Harrisburg on October 29, 2019.

I will also be speaking this spring at a conference for the Pennsylvania Defense Institute as part of a panel on medical marijuana and employment issues.

Claimant's attorneys should not feel left out.  This Thursday, December 12th, I will be traveling to Wilkes-Barre to speak on medical marijuana and workers' compensation payment for NEPATLA (Northeast PA Trial Lawyers Association).  This will be part of their Personal Injury Potpourri Seminar.
 

A Special Thank You

A special thanks to Greising Law partners Angie Lorenz, Esq and Pam Harper, Esquire for inviting me to accompany them to the Judicial Independence Benefit event presented by Pennsylvanian's for Modern Courts.  This was held at the stunning Philadelphia Masonic Temple.  This organization works hard to create awareness of the need for a fair judiciary not influenced by special interests and political agendas.