I am happy to report that the Commonwealth Court has scheduled oral argument before the Court En Banc in one of my cases seeking to have an injured worker reimbursed for his out-of-pocket medical marijuana costs. This will be the first time that the Commonwealth Court will weigh in on this issue.
The argument will be held September 14, 2022 at 9:30 AM before the Court En Banc in Harrisburg. It will be streamed through live on YouTube. The case is Sheetz v. WCAB (Firestone Tire & Rubber), No. 680 C.D. 2021.
By way of brief background, Claimant Sheetz injured his low back at work in 1977. The case was commuted, but the Employer remained liable for medical treatment. Claimant underwent three low back surgeries yet continued to suffer from significant bilateral radiculopathy with pain from his neck to his toes and never was able to return to work. He also developed a tremor post-surgery.
He initially was prescribed Vicodin and Hydrocodone, but at the suggestion of the carrier was switched to OxyContin 20 mg twice a day around 2000. This was increased to 30 mg twice a day. He was recommended for medical marijuana in January 2019, after being on opiates for over 30 years. By January 2020 he successfully weaned himself completely off of the opiates by using Rick Simpson Oil.
I requested reimbursement of his MMJ costs of about $200/month. The carrier sent the matter for Utilization Review which found the use of MMJ reasonable and necessary. The UR was never appealed, leading to the filing of a penalty for non-reimbursement of the out-of-pocket expenses. The Judge denied the penalty and stated that payment was not required as it would place the carrier at risk of violating the Controlled Substances Act.
The WCAB affirmed based upon Section 2102 of the PA Medical Marijuana Act which prohibits “coverage" of MMJ by “health plans” and “insurers.” They declined to address the Federal/State conflict of law as a matter outside their authority to decide.
The key issues for the Court to weigh in on include:
(1) Did the carrier waive the federal illegality issue when it submitted this case to UR? Does Section 2102 override the requirement of the PA Workers’ Compensation Act and regulations that carriers “shall” pay for treatment that is reasonable and necessary?
(2) Does Section 2102’s bar on “coverage” for MMJ extend to requests for reimbursement? Are reimbursement and coverage the same thing?
(3) Are workers’ compensation carriers “health plans” or “insurers” as those terms are used in Section 2102 of the PA Medical Marijuana Act?
(4) Would the requested reimbursement cause the carrier to violate the Controlled Substances Act? Is there a true conflict of law or can both PA and Federal law be complied with without the carrier being prosecuted federally?
The ultimate decision will rest on a lot of interesting considerations including:
(1) The distinction between coverage (payment by a carrier to a medical provider) versus reimbursement (payment directly to the injured worker with no direct involvement of the medical provider).
(2) Whether workers’ compensation carriers are insurers or health plans subject to Section 2102. Workers’ Compensation is not a health plan as it provides wage loss and other benefits. Workers’ Compensation carriers are not defined as insurers per the PA Insurance Company Law of 1921 and medical bills in the workers’ compensation realm are paid pursuant to the dictates of the Cost Containment Regulations, not the Insurance Company Law of 1921.
(3) Does reimbursing Claimant for the purchase of legal medical cannabis in Pennsylvania subject the carrier to a real risk of prosecution under the Controlled Substances Act. Consider the fact that the US Supreme Court declined to weigh in on this issue recently in two cases from Minnesota, effectively allowing each state to do as they please on this issue.
Thank you to those who have supported me on this journey and I will keep you all posted as this case is argued and decided.
Jenifer Dana Kaufman, Esq- Kaufman Workers’ Compensation Law 267-626-2973
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