Injured workers using medical marijuana to treat their work injuries are currently eligible to have their out-of-pocket expenses reimbursed pursuant to the Fegley v WCAB decision. However, many injured workers opt to use cannabidiol (CBD) to treat their injuries. CBD is a cousin of medical marijuana which is extracted from hemp plants. Unlike medical marijuana, it is widely available over-the-counter and does not require the time and expense of obtaining a medical card. Though generally less potent than medical marijuana, CBD is often just as effective for pain and inflammation and is not intoxicating.
Thanks to a closely watched Pennsylvania Supreme Court decision issued last week, Schmidt v. Schmidt, No. 32 MAP 2024 (March 20, 2025), injured workers using CBD products can now seek reimbursement of the cost of CBD purchases provided the use CBD is recommended by a medical provider as part of the overall treatment plan.
This Supreme Court ruling upheld the prior ruling of the Commonwealth Court, reasoning that CBD falls under the umbrella of “medicines and supplies” as those terms are used in Section 306(f.1)(1)(i) of the Workers’ Compensation Act. In so concluding, the Supreme Court observed that neither term is defined in the Workers’ Compensation Act or regulations. Therefore, the Court opted to view the terms collectively as opposed to separately and defined “medicines and supplies” as “any item that is part of a healthcare provider’s treatment plan for a work-related injury.” Therefore, over-the-counter purchases of medicines and supplies are reimbursable so long as a health care provider prescribes the item part of the treatment plan associated with the work-related injury. One would presume there needs to be documentation of the need for such medicines and supplies for a reimbursement request for a reimbursement request to be viable. Requests for reimbursement for medicines and supplies which an injured worker purchases on their own volition would generally not be eligible for reimbursement.
The Supreme Court went on to note that there is nothing in the Workers’ Compensation Act which requires “medicines and supplies” to be regulated by the FDA, shooting down one of the Employer’s primary defenses to reimbursement. CBD is lawfully sold over-the-counter in Pennsylvania even though it contains trace delta-9 THC (the active ingredient in marijuana). CBD is legal so long as it contains less than .3% delta-9 THC. Therefore, as CBD is legal, it is not necessary for workers’ compensation tribunals to evaluate the THC levels and legality of CBD products.
The Schmidt and Fegley cases bestowed long overdue legitimacy to the treatment of work injuries with natural remedies available over the counter instead of prescription drugs. Based on the reasoning of these decisions, carriers can be required to reimburse Claimants for their use of common over-the-counter products recommended by their physician as part of their treatment plan. These natural remedies not only provide real relief and benefit, but often have fewer side effects and drug interactions with other prescriptions the worker may be taking. In addition, supplements do not pose the same risk of developing tolerance and habituation issues as prescription medications often do. Said another way, many pain killers and prescription drugs require ever-increasing doses to obtain the same palliative relief over time. Supplements available over-the-counter are also generally much less expensive than prescriptions. Oftentimes they contain the exact same active ingredients as prescription medications at a fraction of the cost. For example, a tube of OTC Voltaren gel 1% costs about $20 and contains the same active ingredient as prescription Diclofenac 3% gel, which costs over $1000 a tube. Many injured workers will get sufficient benefit from the OTC Voltaren gel. Reimbursement in this situation is a clear win-win for both injured workers and insurers footing the bill for medical treatment. There is no shortage of medications that come in both OTC and prescription strength where the OTC version may be strong enough and preferrable in terms of potential side effects such as NSAIDS like Ibuprofen and Naproxen.
Given the increasing popularity and legitimacy of non-prescription supplements, I wanted to take a closer look today at some of the natural remedies injured workers are using in lieu of prescriptions for which reimbursement by a workers’ compensation carrier may be appropriate. Not all of these are appropriate for all injuries or all people and none should be taken without consulting with a doctor. Injured workers should not be playing doctor and need to discuss the appropriateness of OTC and natural remedies with their treating doctors to make sure they are indicated and documented in the treatment plan. All the foregoing is likely why the Supreme Court stressed that “medicines and supplies” are only eligible for reimbursement when part of the medical provider’s treatment plan.
Popular OTC and Natural Remedies
CBD, or Cannabidiol, is a cannabinoid found in the cannabis sativa plant, which includes both marijuana and hemp plants. CBD naturally occurs in significant amounts in the hemp plant, which, unlike the marijuana plant, contains trace to no THC (the substance that can get you high). The CBD sold over-the-counter is extracted from hemp plants and is required to have less than .3% delta-9 THC by law.
CBD may be beneficial for both physical and mental injuries. CBD is an anti-inflammatory and can provide pain relief for musculoskeletal injuries. Like medical marijuana, it is sold in various forms including tinctures, creams, capsules, and gummies. CBD is a viable alternative to many pain medications and muscle relaxers, especially for those suffering with less serious injuries. In addition, if purchased in an isolate form, the user will not be exposed to even trace THC and will not fail a drug test.
CBD can be a very effective treatment for the anxiety which comes with many psychological injuries. They are an alternative to using benzodiazepines such as Valium or Ativan. CBD can also be used to aid sleep instead of benzos or medications like Ambien. Unlike benzos, CBD is not addictive and habituation is less of a concern.
Speaking of sleep, another popular over-the-counter treatment option is melatonin. Melatonin is a hormone which our bodies make in response to darkness. Taking a supplement promotes sleep. There are studies that suggest it can reduce anxiety and aid sleep prior to surgery, a time when getting a good night’s sleep is difficult but vital.
Another popular and effective supplement is glucosamine chondroitin, for knee injuries and arthritis of the joints. Glucosamine is a natural substance found in cartilage (cartilage cushions joints). It is an anti-inflammatory. Chondroitin likewise is naturally found in cartilage. These substances can prevent cartilage breakdown and may also aid in cartilage repair by inhibiting enzymes that breakdown cartilage. As a result, pain may be reduced in an affected joint. Some Glucosamine Chondroitin supplements also contain Methylsulfonylmethane (MSM ) which is a natural chemical which studies suggest reduces pain in swelling for those suffering from osteoarthritis. Collagen is a naturally occurring protein which our bodies make to encourage healing. Other supplements which may reduce pain and inflammation include turmeric, biofreeze (menthol), and Arnica gel.
For a worker to be successful in a claim for reimbursement of any over-the-counter medicine or supply it needs to be recommended and monitored by the treating doctor. Like all new developments, there will be understandable fear, uncertainty, and growing pains for the workers’ compensation practice. However, one hopes that Claimant’s attorneys are judicious in their requests for reimbursements of medicines and supplies and that carriers recognize the advantages and cost-savings that result when effective natural and over-the-counter medicines and supplies are used in lieu of prescription medicines and supplies.
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