In Fegley, as Ex'x of the Est. of Paul
Sheetz, v. Firestone Tire & Rubber (WCAB), _ A.3d _ (Pa. Cmwlth. 2023)
and Edward Appel v. GWC Warranty Corp. (WCAB), _ A.3d _ (Pa. Cmwlth.
2023), the Commonwealth Court held that workers’ compensation insurers must
reimburse injured workers for medical marijuana where it has been determined
that such treatment is related to the work injury and is reasonable and necessary.
The Court reversed the denial of the claimant’s penalty petition in spite of
the employer’s objections that the Pennsylvania Medical Marijuana Act
prohibited an insurer from covering the expenses for medical marijuana
treatment and that marijuana is still an illegal, controlled substance under
federal law.
As for the actual language of Section 2102
of the Medical Marijuana Act (MMA), the Court ruled that coverage is different
and distinct from reimbursement and while the plain language of Section 2102 of
the MMA states that insurers cannot be required to provide coverage for
medical marijuana, there is no statutory language which prohibits insurers
from reimbursing claimants who lawfully use medical marijuana
to treat an accepted work injury when such treatment is medically reasonable
and necessary. So, carriers may not have to cover medical marijuana, but
there is no language prohibiting them from reimbursing for medical marijuana.
As to the issue of the potential violation
of federal law, the Court noted that Section 2013 of the MMA says that nothing
in the MMA shall require an employer to commit any act that would put the
employer or any person acting on its behalf (workers’ compensation carriers) in
violation of federal law. Under the Federal Drug Act, it is unlawful to
“manufacture, distribute, or dispense, or possess with intent to manufacture,
distribute, or dispense, a controlled substance.” Despite this plain language
of the statute, the Commonwealth Court reasoned that reimbursing an
injured worker his out-of-pocket expenses for medical marijuana does not
require a workers’ compensation carrier to do any of these prohibited
activities. Apparently, the long-stated legal maxim of “One cannot do
indirectly what one cannot do directly” did not bother the court.
While the Court has split hairs relative
to the issue of “coverage” versus “reimbursement” so as to provide a potential
pathway for the payment of medical marijuana, these decisions did not address a
multitude of other issues that do not appear to have been raised in the
litigation and which still need to be addressed. Many employers and
carriers, especially those public entities and health carriers that obtain
federal funding may be cautious to even reimburse medical marijuana given it
may lead to them facing issues with receiving federal funding. When Ohio
enacted its medical marijuana statute, it required university studies to be
conducted but faced reluctance in Universities wanting to get involved with
studying medical marijuana for fear it may lead to issues with their receiving
federal funding.
As for the other issues not addressed by
the decisions, the payment for or reimbursement of medical marijuana is
problematic in that such reimbursement would totally circumvent the Medical
Cost Containment Regulations. First, there obviously is no re-pricing
mechanism for the payment of marijuana. Thus, this may fall under the 80%
provision for reimbursement. However, the bigger issue is whether this is
actually medical treatment. There must be a medical provider who
certifies that the Claimant meets the requirement of the Medical Marijuana Act
to be certified to obtain a Medical Marijuana card to obtain the
treatment. However, there is no actual medical provider who actually
prescribes any medical marijuana product, such as form, strain and amount.
When a medical provider prescribes narcotics for a patient, they provide the
specific medication, dosage, frequency, and amount. With medical
marijuana, once the claimant is certified, they can go to a dispensary and
essentially work with a salesperson to determine what form (leaf, vape, etc.),
strain, amount, etc. to obtain. There also is no re-pricing mechanism
given medical marijuana is not payable under Medicare. Thus, the
reimbursement is most likely under the provision that provides for payment at
80% of the usual and customary charge for treatment provided for in 34 Pa. Code
§ 127.102. However, there most likely are not sufficient reporting data
available for carriers to determine what is the “usual and customary” charge
such that the payment would be at 80% of the actual charge. If the
dispensary inflates the amount they are charging for the produce they are
distributing, that may me carriers are paying more than they should for this
“treatment.”
Further, there is no medical provider upon
which a Utilization Review can be filed. If filed upon the certifying
physician, the issue would be whether it was reasonable and necessary treatment
for the Claimant to be certified for medical marijuana. There is no peer
that can conduct a review when the “medical provider” is a salesperson or a
medical marijuana “pharmacist.” Thus, the Employer/Carrier is denied the
ability to conduct a Utilization Review. These are issues that are going
to eventually need to be addressed in litigation. Until they are, there
are going to be arguments against whether medical marijuana is to be reimbursed
other than simply that the MMA does not require insurance “coverage” for
payment of the same.
Bradley R. Andreen, Esq.
Rulis & Bochicchio, LLC
