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

Kaufman Workers' Compensation Law May 6, 2020

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 the 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 statutes 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 to 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.