ANTHONY J. BILOTTI & ASSOCIATES, LLC

Edward Appel v. GWC Warranty Corp. (WCAB)
Commonwealth Court of Pennsylvania – Published En Banc Opinion
Decided: March 17, 2023

Issue:

Whether the Board erred by concluding that, based on the plain language of the Medical Marijuana Act (MMA), an insurer or employer cannot be required to pay for medical marijuana?

Background:

Claimant sustained a work-related herniated disc at L5-S1, cervical sprain, disc herniation at L4-L5, lumbar radiculopathy, cervical strain with cervical myofascial spasm, major depression, and aggravation of cervical degenerative spondylosis of degenerative disc disease. Employer accepted Claimant’s injury via a Stipulation of Facts approved in a 2015 WCJ Decision. Claimant received extensive treatment for his work injury, including two lower back surgeries. Claimant continued to experience chronic low back pain and symptoms in his legs for which his doctor prescribed opioids. Claimant received a medical marijuana card and used medical marijuana while he was weaning himself off the opioids. The Claimant filed the Review Medical Petition seeking a determination that his use of medical marijuana was causally related to his work injury and an order directing Employer to reimburse him for the cost thereof. The WCJ partially denied the Review Medical Petition. The WCJ concluded that Claimant met his burden of proving that his use of medical marijuana was related to the accepted work injury, but that Claimant failed to prove that Employer must reimburse him for his out-of-pocket medical marijuana expenses pursuant to Section 2102 of the MMA, which does not require an insurer or health plan to provide coverage for medical marijuana. Claimant appealed to the Board, which affirmed the WCJ’s decision. A seven Judge panel of the Commonwealth Court heard the appeal from the Board’s decision.

Holding:

The Court’s analysis looked at the intent and the interrelationship of various Federal and State Statutes. This included the Federal Controlled Substances Act (Federal Drug Act) which provides, that it shall be unlawful for any person knowingly or intentionally to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance. The Federal Drug Act also expressly provides that no provision of the relevant subchapter shall be construed as indicating an intent on the part of the Congress to occupy the field in which that provision operates, including criminal penalties, to the exclusion of any state law on the same subject matter which would otherwise be within the authority of the state, unless there is a positive conflict between that provision of this subchapter and that state law so that the two cannot consistently stand together. The Court then examined the Medical Marijuana Act and noted that under the MMA, the use or possession of medical marijuana as set forth in the MMA is lawful within Pennsylvania. Further, the MMA contains an immunity provision protecting patients from government sanctions. The Court noted that Congress has expressly prohibited the federal Department of Justice (DOJ) from using allocated funds to prevent states, including Pennsylvania, from implementing their medical marijuana laws. The MMA provides that nothing in the MMA shall be construed to require an insurer or a health plan, whether paid for by Commonwealth funds or private funds, to provide coverage for medical marijuana. While a plain reading of the statute does not require an insurer to provide coverage, it does not prohibit an insurer from covering it either. Specifically, Section 2102 of the MMA does not prohibit an insurer or health plan from reimbursing payment for medical marijuana. The plain language of Section 2102 of the MMA is limited to not requiring insurers to provide “coverage” for medical marijuana, and “coverage” is different and distinct from “reimbursement.” Thus, 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. The General Assembly intended that covered patients have access to the latest medical treatments. Any other interpretation would lead to an unintended, absurd result. Thus, because Section 2102 of the MMA does not prohibit insurers from covering medical marijuana, the WC Act mandates employers to reimburse claimants for out-of-pocket costs of medical treatment which has been found to be reasonable and necessary for their work-related injury. The WCJ concluded that the medical marijuana use was causally related to the work injury, therefore, the Employer was required to reimburse Claimant for his out-of-pocket costs under the WC Act. Finally, since Employer is not prescribing marijuana, but only reimbursing Claimant for his lawful use thereof, Employer is not in violation of the Federal Drug Act.

Reversed.

DISSENTING OPINION BY JUDGE FIZZANO CANNON

In a dissenting opinion, Judge Cannon, joined by Judge McCullough, asserted that the MMA does not require an Insurer to pay for medical marijuana. The MMA legalized medical marijuana for the first time and in a limited manner; in doing so, it made clear that it was not to be construed to require insurance coverage of medical marijuana. This makes sense, since medical marijuana has not yet been approved by the FDA as safe and effective for use in medical treatment, and its use is not legal under federal law. The legislature, not the courts, must effect any change in the MMA’s stated policy and the balance struck regarding insurance coverage. Therefore, this Court must affirm the Board’s holding that the MMA cannot be read to mandate reimbursement for prescribed medical marijuana provided to WC claimants. The provider necessarily violates federal criminal law by distributing or dispensing medical marijuana. Where a provider cannot provide treatment legally, that treatment cannot be deemed reasonable and necessary, and the provider cannot obtain reimbursement under the WC Act. Although the MMA legalizes the use of medical marijuana in Pennsylvania, a provider still cannot legally dispense medical marijuana under federal law. 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.

©Bilotti Law Associates 2023

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