Pennsylvania workers' comp can reimburse medical marijuana costs, court rules
The majority wrote that the dissenting judges' determination 'would eviscerate the entire [Medical Marijuana Act].'
Pennsylvania workers’ compensation claimants may now seek reimbursement for the cost of medical marijuana used to treat work-related injuries, thanks to a precedential ruling entered by the Commonwealth Court.
A split en banc panel determined March 17, 2023, that an employer’s failure to pay its employee back for out-of-pocket marijuana costs violated the Workers’ Compensation Act.
“It’s really a game changer for a subset of injured workers that can really make their lives better,” said solo practitioner Jenifer Kaufman, who represented the claimant.
Kaufman explained that the ruling opened a path toward reimbursement for employees who can demonstrate that their legal cannabis use is reasonable, necessary and related to a work injury. She said claimants most likely to successfully recoup cannabis costs would include workers who underwent failed surgeries or are recovering from opioid addiction.
Kaufman said the case, captioned Fegley v. Firestone Tire & Rubber, is the first in Pennsylvania to address whether employers are required to reimburse certain medical marijuana costs — a question that has prompted split conclusions across different states.
Firestone’s attorney Andrea Bennett did not return calls seeking comment, but Kaufman said she expects the defendant to appeal the ruling.
Whether employers are required to reimburse certain medical marijuana costs likewise proved divisive among the Commonwealth Court’s panel, which reached its decision via a 5-2 ruling.
The majority determined that while Pennsylvania’s Medical Marijuana Act, or MMA, states that insurers are not required to provide coverage for medical marijuana, the law does not include statutory language prohibiting reimbursement. At the same time, the court held, the MMA protected cannabis patients from being denied rights or privileges based solely on their drug use, and the WC Act provides employees with a right to certain medical expenses.
“If this court was to agree with employer, it would be removing those express protections from the MMA and the WC Act,” Judge Anne Covey ruled in the majority opinion.
Beyond ‘Reefer Madness’
In a dissenting opinion, however, Judge Christine Fizzano Cannon was wary of the interplay between state and federal law.
“Although the MMA legalizes the use of medical marijuana in Pennsylvania, a provider still cannot legally dispense medical marijuana under federal law,” Cannon wrote. “Therefore, because it is illegal, such treatment cannot be reasonable and necessary under the WC Act; accordingly, the dispenser cannot obtain reimbursement from a WC insurer.”
She was joined in her dissent by Judge Patricia McCullough, who is currently vying for a seat on the Pennsylvania Supreme Court.
The majority, including President Judge Renee Cohn Jubelirer and Judges Michael Wojcik, Ellen Ceisler and Stacey Wallace, took issue with the dissent.
“The fact that dispensing marijuana is illegal under federal law does not transform a medically reasonable and necessary treatment under the WC Act for a work injury to a medically unreasonable and unnecessary treatment,” Covey wrote in a footnote in the opinion. “Such a determination would eviscerate the entire MMA.”
Kaufman said the dissenting opinion was more about personal pontification than the law.
“The dissenting judges are just not comfortable with the concept,” she said.
Kaufman said conflicting federal law is a standard theme from the defense in issues involving state marijuana laws. Still, in practice, the U.S. Department of Justice does not intervene in such matters.
“Where we are is beyond ‘Reefer Madness’ in this country,” she said.
The court’s ruling reverses a Workers’ Compensation Appeal Board order denying a petition for penalties from Teresa Fegley, executrix of claimant Paul Sheetz’s estate.
Kaufman said, “This is really an opportunity for some people to have a better quality of life.”
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