Update on Medical Marijuana Reimbursement in Pennsylvania

You are receiving this email because you are a client, friend of the firm or interested in this topic.  Thank you for your support of our office and mission to have medical marijuana become a treatment covered by workers' compensation. 

Another Settlement
I have settled another case where money was allotted to reimburse an injured worker for out-of-pocket costs for treatment with MMJ.  This was in conjunction with an overall settlement of the claim.  My client had tremendous pain relief and is now able to return to work due their use of MMJ.

Another UR Finding Treatment Reasonable and Necessary
I just received a Utilization Review Determination finding  my client's treatment with MMJ to get off opiates reasonable and necessary.  The carrier still refuses to reimburse my client because of federal illegality.  The prior reason given for denial was lack of FDA approval.  It it my contention that these defenses were waived by the carrier when they requested Utilization Review of the MMJ use.  Stay tuned for an interesting legal fight.  

News from Around the State
Two Workers' Comp Judges have denied Claimant's requests for reimbursement in circulated decisions. Both decisions are very fact-specific.  The first was just circulated in Wilkes-Barre.  In that case, a UR found treatment with MMJ reasonable and necessary and the Employer appealed this determination to a Judge.  The Judge declined to direct the carrier to reimburse based upon his determination that marijuana is not a "prescription" subject to UR.  In lieu of deciding the case on the merits, the Judge dismissed Employer's petition based upon this procedural finding.

In the decision, the Judge failed to address Claimant's core argument that MMJ could be considered a "pharmaceutical" under the UR regulations.  Pharmaceuticals are not prescriptions yet they are subject to Utilization Review.  The Judge also noted in passing the illegality of MMJ, though this did not form the basis of his decision.  Counsel in that case is currently considering their appeal and other options.

In July 2019, a Pittsburgh Judge declined to award reimbursement based upon the reasoning of the Maine Supreme Court.  Counsel for the Claimant did not file a Brief and did not appeal.  The Judge wrote a very thoughtful decision summarizing the reimbursement cases from across the country and even cited an article I wrote for the Legal Intelligencer.  The Judge ultimately concluded that he could not compel a carrier to commit a federal crime, aiding and abetting the distribution of marijuana.

However, the Judge did not address the March 2019 New Hampshire Supreme Court ruling (issued subsequent to the Maine decision) that a blanket statement of illegality is not enough.  New Hampshire concluded that, for a carrier to not have to reimburse a Claimant for MMJ use, the carrier needs to demonstrate that the requested reimbursement "would expose the carrier to criminal prosecution under federal law."  While the Pittsburgh case is disappointing, I do believe counsel's failure to submit a brief laying out legal argument was a key factor in that ruling.

Upcoming Events
Upcoming Event
I will be speaking on medical marijuana and its effect on workers' compensation claims at the Pennsylvania Self-Insurers Association Legislative Meeting on October 29, 2019 in Harrisburg.

I continue to accept cases for injured workers' seeking MMJ reimbursement.  Referral fees paid and reduced fees available for injured workers who have resolved their wage loss claims but maintain open medical.  

A Good News Newsletter! Lots of Positive Developments for Injured Workers Using Medical Marijuana!

Success!

I am pleased to report that my Lancaster County MMJ reimbursement test case has settled.  The carrier agreed to pay my client a significant (five digit) lump sum based upon the anticipated monthly cost of medical marijuana purchases for the remainder of his life.  

The carrier is also funding a Medicare Set-Aside for the cost of future non-MMJ treatment.  While this case will not be decided by a Judge, this is a huge win as my client now has the peace of mind that comes from being able to afford the MMJ treatment which transformed his life.

Those of you waiting for PA Courts to weigh in on whether an injured worker can be reimbursed for their-out of pocket MMJ costs need not despair.  I have filed a new MMJ reimbursement case for an injured worker in Jefferson County, Western Pennsylvania.  This Claimant suffered a serious knee injury in 1992.  Wage loss benefits were commuted in 1996, with the carrier remaining responsible for medical care.  The Claimant has been off all opiates for nearly a year with the help of MMJ.  The carrier has refused to reimburse even though they tried for years to get this worker off of opiates.

I have also filed a petition for reimbursement for an emergency services worker who suffered a devastating injury to the dominant arm resulting in RSD (reflex sympathetic dystrophy) and brachial plexopathy.  This worker has opted to treat their physical and mental symptoms with MMJ in lieu of a heavy pharmaceutical regimen.

I will be soon filing a reimbursement petition for a worker who suffered a career-ending low back injury in 1977 which resulted in three back surgeries and a dependence on opiates.  This worker has been using MMJ to come of the opiates.  The worker is now experiencing better pain relief and a new outlook on life as the opioid haze has lifted.

If you know an injured worker using MMJ to treat their work injury please do not hesitate to have them contact me to discuss making a claim for reimbursement with their carrier.   Unfortunately, out-of-pocket cost is the greatest barrier to treatment with MMJ.  I offer reduced fees for Claimants seeking MMJ reimbursement if they are not currently receiving wage loss benefits.

I am also interested in hearing from Claimants (and their attorneys) who are lucky enough to have had their comp carrier agree to reimburse MMJ without litigation to aid those who are still fighting.

NLJ Cannabis Law Trailblazers

I am honored to be named to the National Law Journal's 2019 List of Cannabis Trailblazers.

New York Joins the Ranks of States Directing Workers' Comp to Reimburse Injured Workers for Treatment with Medical Marijuana

Two recent decisions have seen the New York Workers' Comp Board approve an injured worker's request to have workers' comp carriers reimburse them for medical marijuana  treatment for their work injury.  Unlike Pennsylvania, New York has published treatment guidelines for different work injuries. In order for a carrier to pay for treatment outside those guidelines, a variance must be requested and approved by the NY Board.

In Our Lady of Victory Homes, Case No. G085 6772, the Board noted the conflict between federal law and New York's medical marijuana statute. In granting the employee's variance request, the Board cited the humanitarian purpose of the workers' comp law and the failure of the NY medical marijuana law to specifically prohibit workers' compensation coverage for medical marijuana (as the prohibition was limited to "health insurers").  The Rohrabacher-Blumenauer Amendment was also relied upon.  That Amendment has been added to many congressional omnibus spending bills and says that the Federal Government will not prosecute those involved in legal state marijuana programs.

The New York Board again granted a variance in February 2019 in TSC Construction LLC, Case No. G074 9670.  The court affirmed that New York's Medical Marijuana law is not preempted by Federal Law, and granted the request of the employee. to have MMJ treatment reimbursed by the comp carrier.  

The NY Workers' Compensation Board is currently compelling payment when the following criteria is satisfied:

(1) the medical provider is both registered with the Department of Health and authorized with the Workers’ Compensation Board;
(2) medical marijuana treatment is for a (i) serious condition diagnosed at (ii) an established site; and
(3) MG-2 variances (i) objectively show medical marijuana is medically necessary and treatment pursuant to the Medical Treatment Guidelines is not appropriate or sufficient; and, where relevant, (ii) prove that the claimant suffers from chronic pain as defined under 
10 N.Y.C.R.R. Section 1004.2(a)(8)(xi)

State of the States:  Legislation Pending in Three States to Require Workers' Comp Carriers to Pay for Medical Marijuana Treatment 

At present, only New Mexico has established a workers' compensation fee schedule for medical marijuana, which establishes the rate carriers are to reimburse injured workers for the cost of for purchasing MMJ to treat their work injuries.  

Similar laws have been proposed in New Jersey, Maryland and Hawaii.  In Maryland, Senate Bill 854 would require workers' compensation to cover treatment with "medical cannabis."  The bill also bars workers' compensation for injuries solely caused by the use of medical cannabis.  This bill unanimously passed the Maryland Senate, and would go into effect October 1, 2019 if passed by the House and signed into law.

In New Jersey, Assembly Bill NJ A4505 would require workers' compensation and PIP carriers to provide coverage for costs associated with the medical use of marijuana.This has yet to be voted upon.

And in Hawaii, both the House and Senate are currently considering bills that would require workers' comp carriers to reimburse injured workers for their use of medical cannabis.  The reimbursement would be subject to a fee schedule like in New Mexico,  SB 1523.

Meanwhile, injured workers in Canada are benefiting from new provincial Workers' Compensation Board rules providing coverage for MMJ treatment for work injuries in some circumstances.  So far, Ontario, New Brunswick, Prince Edward Island, Nova Scotia and Alberta provinces permit workers to petition to have MMJ covered by workers' compensation.

Medical Marijuana Reimbursement Update

No, New Hampshire Did Not Just Direct a Carrier to Reimburse an Injured Worker for their Medical Marijuana Costs, BUT...

You can read about my analysis of the case and my thoughts on the future of MMJ reimbursement in New Hampshire and Pennsylvania in Monday's edition of Workcompcentral:

 

The Case:  Appeal of Andrew Panaggio, No. 2017 -0469 (March 7, 2019 Opinion of New Hampshire Supreme Court.)

You may have seen articles on the internet stating that the New Hampshire Supreme Court has ordered a comp carrier to reimburse an injured worker for his out-of-pocket MMJ costs, reversing the lower court.  The truth is a lot more nuanced. 

The Supreme Court actually vacated the prior decision of the New Hampshire Workers' Compensation Appeal Board and remanded the case back to them.  The lower court was directed to write a more reasoned decision.

The facts are commonplace enough, a worker sustains a career-ending injury in 1991.  He eventually gets on medical marijuana and seeks to have his carrier reimburse his out-of- pocket costs.  The lower court finds the treatment to be reasonable and necessary, but declines to direct reimbursement due to illegality under federal law.  This appeal followed.  

The Supreme Court reversed and remanded because it found that the Board did not explain in its prior decision how a carrier's reimbursement would violate Federal Law.  The lower decision simply said that "possession of medical marijuana is still a federal crime."  No legal authority was cited for this conclusion by the Board, especially one that would support a finding that the requested reimbursement "would expose the carrier to criminal prosecution under federal law."

We shall see what the Board does with this.  Certainly, the Supreme Court decision suggests reimbursement would not violate Federal law, and would be in keeping with the humanitarian goals of the workers' compensation act as well as its requirement of payment for reasonable medical treatment.

As an interesting side note, the Supreme Court mentions that, in its opinion, if a state wants to bar reimbursement for MMJ costs, it should do so in its medical marijuana statute.  If the statute is silent on this (like in Pennsylvania), it should be presumed that the legislative intent was to permit reimbursement.  The court then noted that several other states' laws prohibit both coverage and reimbursement.