Update on Medical Marijuana Reimbursement in Pennsylvania
Oct. 2, 2019
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.
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.