The Commonwealth Court in a published and precedential opinion just ruled that workers’ compensation carriers are required to reimburse injured workers who use cannabidiol (CBD) to treat their work injuries for their out-of-pocket costs when CBD is (1) Is prescribed or recommended by a health care provider; (2) medically reasonable and necessary; and (3) related to the work injury. This decision will have an immediate impact on injured workers who use CBD to treat their work injuries I believe it further provides a pathway for reimbursement for other over-the-counter and alternative treatments for work injuries such as using melatonin for sleep instead of prescription medications.
The case is *Schmidt v Schmidt, Kirifides & Rassias (WCAB)*, 1039 C.D. 2021. In this case, fellow workers’ compensation attorney Mark Schmidt represented himself in a claim against his law firm stemming from a significant low back injury he sustained when he tripped over his trial bag. Schmidt was prescribed CBD by his pain doctor to use in lieu of increasing the dosage of opioids he was already taking and to avoid low back surgery.
CBD, or cannabidiol, is sold over-the-counter. CBD is a cannabinoid found in the cannabis plant. The CBD that is sold to the public is derived from the hemp plant, and does not contain THC, the substance in marijuana which can get you high and which is a Schedule I controlled substance. CBD is currently legal if it contains less than .3% THC. In this case, Schmidt used Charlotte’s Web CBD, a well-known and reputable brand of CBD. It is named for Charlotte Figi, a young girl who was suffering from Dravet’s Syndrome, which caused her to suffer upwards of 300 grand mal seizures a day. The strain was developed to help her by a group of cannabis growers in Colorado. It reduced her seizures significantly and has helped other children with the devastating disease. It has also proven to be very effective for treatment of chronic pain.
Schmidt initially won his case before the Workers’ Compensation Judge who ruled that his use of CBD was reasonable and necessary and that CBD is a “medical supply” which can be reimbursed under Section 306(f.1)(1)(i) of the Workers’ Compensation Act. The Workers’ Compensation Appeal Board (WCAB) reversed, noting that the FDA has, on rare occasions, issued warning letters to manufacturers of CBD for making unsubstantiated marketing claims. They further stated that, due to this, an employer would be compelled to violate Federal law if reimbursement was directed. Two WCAB commissioners dissented.
The Commonwealth Court reversed the WCAB and squarely dismissed the insurer’s arguments against reimbursement that CBD is a “herbal supplement” and not FDA approved, and therefore not a reimbursable expense. Judge Covey, writing for the majority, agreed with the WCJ that that CBD is a “supply,” and in addition also concluded that it is also a “medicine” that can be reimbursed under Section 306(f.1)(1)(i) of the Act. Judge Covey reasoned that there is no language in the Workers’ Compensation Act which prohibits reimbursement for over-the-counter supplies and medicines. Furthermore, the fact that CBD is not FDA approved does not preclude reimbursement. CBD is legal federally and the fact that some bad actors in the industry have received warning letters about their illegal marketing tactics from the FDA does not make the injured worker’s use or employer’s reimbursement for CBD illegal.
Judge Fizzano Cannon wrote a dissent stating reimbursement was inappropriate, and Judge Wallace wrote a concurring opinion that, while she agrees reimbursement is appropriate, she would define CBD as a “medicine’ and not as a “supplement” under Section 306(f.1)(1)(i) of the Workers’ Compensation Act.
I have reached out to attorney Schmidt who advises that he does not yet know if an appeal will be filed by the carrier. This decision is a big win for workers who use CBD and other alternative treatments for their work injuries in lieu of pharmaceutical drugs which are often more expensive and pose significant side effects. The court, led by Jude Covey, has once again endorsed cannabis-based treatments as legitimate and reimbursable, and comp carriers should ignore this fact at their own peril.
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