*Article previously published in the June 2024 Newsletter of the Pennsylvania Bar Association Workers Compensation Law Section*
In March 2023 the Commonwealth Court changed the workers’ compensation landscape forever when it concluded in Fegley v. WCAB that workers’ compensation carriers are required to reimburse injured workers for the cost of medical marijuana used to treat their work injury when such treatment is reasonable and necessary. In addition, the Commonwealth Court went on to add, effective immediately, any failure to reimburse would constitute a violation of the Workers’ Compensation Act warranting imposition of penalties. An unequivocal warning shot was fired at Pennsylvania carriers: Ignore this decision at your peril.
The Fegley decision was not appealed and now a final precedential decision. Its reasoning has even been applied to allow reimbursement of CBD used to treat work injuries. Fegley effectively eliminated the viability of the most popular defenses to medical marijuana reimbursements, that marijuana is federally illegal, and that any reimbursement on the part of the carrier would constitute a criminal act exposing it to prosecution under the Federal Controlled Substances Act (CSA). The Commonwealth Court disagreed and reasoned that insurers would lack the requisite intent to be charged with any violation the CSA. Carriers would reimburse with the intent to comply with dictates of Pennsylvania’s Workers’ Compensation and Medical Marijuana laws, and not with the intent to commit a crime. Section 841(a) of the CSA requires intent to be charged with a crime. Furthermore, any reimbursement would not violate the Pennsylvania counterpart to the CSA as Section 2103 of the Medical Marijuana Act provides a safe harbor against prosecution for patients that would extend to employers as well.
Insurers were initially caught flat-footed by the Fegley ruling, having incorrectly assumed that the court would go the other way. They were also understandably shocked by the immediate ramifications of the decision, given the lack of a phase-in period combined with the palpable potential for penalties.
Over a year has passed. Reimbursements are being made across the state with limited litigation. Most of these are/were to severely injured Claimants who were sitting on the sidelines with receipts awaiting the outcome of Fegley. Anecdotally, the average monthly reimbursement is $200-$500/month, making the potential yearly exposure for a carrier on one of these cases between $3000-$6000, the same range as a deposition of a mid-priced IME physician. This exposure includes not only the marijuana itself, but also the ancillary cost of yearly certification ($75-$300), the yearly $50 paid to the state for the medical card and the cost of batteries and a vaporizer if the marijuana is vaped.
All stakeholders in our workers’ compensation system benefit from getting injured workers off opioids and replacing them with medical marijuana when appropriate. It is a rare win-win where marijuana costs the carrier significantly less than opioids, and the outcomes for injured workers are more favorable- the risks of addiction are eliminated, and most using medical marijuana report better pain control resulting in an enhanced quality of life. Carriers now complaining about medical marijuana becoming part of our system are incapable of stating with a straight face that they would prefer to go back to the days of mass use of opioids and compound creams by injured workers. Carriers have spent the last few years diligently formulating plans to eliminate opioid use and costs through URs, rehab programs and aggressive pharmacological nurse case managers
Medical marijuana has played a large part in allowing carriers to achieve their goal of curtailing opioid use in our workers’ compensation system with the bonus of reduced medical costs. However, as workers’ compensation carriers are in the business of spending as little as possible per claim, it is not surprising that many carriers still balk at the modest cost of medical marijuana. To make matters worse for insurers, medical marijuana reimbursement requires the carrier to write a check directly to the enemy, the injured worker. While the injured worker must qualify and be approved for card by a Commonwealth approved doctor, the ultimate decision on which medical marijuana product to use is left to the pharmacists and patient at the dispensary. This is a leap of faith carriers are not entirely comfortable with.
There is an analogous situation though, physical therapy. A recommendation for medical marijuana and a script for physical therapy are both authorizations granted by a medical doctor for individualized adjunct medical treatment to be provided by non-doctors. We accept that physical therapy is medical treatment and grant physical therapists the discretion to formulate the best therapy program for an injured worker based upon their expertise and the patient’s unique needs. The nature and intensity of a physical therapy program will vary based upon the individual patient’s diagnosis, age, relative fitness, and comorbidities. We do not expect a morbidly obese 60-year-old office worker to work with the same weights and reps in therapy as a 30-year-old laborer would.
The same logic holds true for medical marijuana. Section 801(b) of the Pennsylvania Medical Marijuana Act requires that a state-certified physician or pharmacist always be present at the dispensary to consult with patients. In some situations, the individual can be a nurse practitioner or physician’s assistant. The pharmacist or like individual will meet with the patient to assist in selecting the product formulation and dosage that is best suited for the individual given the diagnosis and co-morbidities. Dispensary pharmacists are committed to microdosing, which is the use of the smallest effective dose.
Employers concerned about potential abuse of the system should take heart that Fegley did not exempt medical marijuana from the UR process. In fact, the Fegley decision stemmed from a UR requested by the carrier back in July of 2019. Every UR request I have seen regarding medical marijuana has been assigned to a physician who is certified by the state to recommend medical marijuana. Carriers maintain not only full UR rights, but still also retain the right to deny any reimbursement request if relatedness to the work injury is in doubt. In addition, Employers can utilize IME doctors to address the appropriateness of the specific medical marijuana products a worker may be using. This was and still is routinely done when it comes to prescription medication, opioids in particular.
The Pennsylvania workers’ compensation system is fully equipped to deal with the addition of medical marijuana as a legitimate medical treatment. Just as it has adapted in the last 100 years to the introduction of MRIs, EMGs, microdiscectomies, facet injections and a pharmacy of prescription drugs and creams. There will be a learning curve for sure, but not an insurmountable one.
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