ANTHONY J. BILOTTI & ASSOCIATES, LLC

Teresa L. Fegley, as Exec. of the Est. of Paul Sheetz v. Firestone Tire & Rubber (WCAB)
Commonwealth Court of Pennsylvania – Published En Banc Opinion
Decided: March 17, 2023

Issues:

(1) Whether Section 2102 of the MMA applies to WC carriers and overrides the requirements of the WC Act and the Board’s Regulations that mandate insurers pay for/reimburse the cost of medical treatment that is reasonable, necessary, and related to an accepted work injury? (2) Whether the Board erred by concluding that Section 2102 of the MMA precludes reimbursement for medical marijuana to a claimant using medical marijuana to treat an accepted work injury when it has been determined that such treatment is related to the work injury and is reasonable and necessary? (3) Whether reimbursement of Claimant’s medical marijuana treatment would cause the WC carrier to violate federal law?

Background:

Claimant sustained an injury during the course and scope of his employment with Employer. As a result, thereof, Claimant received medical treatment which included two back surgeries. Due to the severe pain in his back and legs, Claimant’s doctor prescribed opiates and narcotics, including OxyContin. Decades later, at the recommendation of his doctor, Claimant began taking medical marijuana in 2019, with the hope of eliminating the need for the opiates and narcotics he had been taking. Medical marijuana afforded Claimant pain relief and reduced his need for the opiates and narcotics. As a result of taking medical marijuana, Claimant weaned himself off Diazepam and OxyContin. In 2019, a UR determination declared that Claimant’s medical marijuana use was reasonable and necessary. Subsequently, Claimant filed a Penalty Petition, alleging that Employer violated the WC Act by failing to pay for his medical marijuana treatment, despite that the UR Determination declared that such treatment was reasonable and necessary. The WCJ denied the Penalty Petition, concluding that Claimant failed to prove that Employer’s refusal to pay for the medical marijuana treatment violated the WC Act. 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 also 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 this Commonwealth. Further, the MMA contains an immunity provision protecting patients from government sanctions. Moreover, 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. As a preliminary matter, the Court held that the Employer did not waive Section 2102 of the MMA as a defense because Employers had raised such matters as a defense below. The Court also noted that, consistent with the rules of statutory interpretation, given that Worker’s Compensation carriers are insurers under the Insurance Law, they must also be held to be insurers for purposes of the MMA, and that the provisions of the MMA apply to W.C. carriers. Further, 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.” While the MMA mandates 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 in violation of federal law, “reimbursement” would not cause the W.C. carrier to violate federal law, or be at risk of facing federal prosecution, because, section 841(a) of the Federal Drug Act only 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. Reimbursing Claimant for his out-of-pocket expenses for his lawful use of medical marijuana as a reasonable and necessary treatment for his work injury would not require Employer’s W.C. carrier to do any of the above prohibited acts. Therefore, 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. In support of this holding, the Court also noted that the MMA specifically mandates that no medical marijuana patients shall be denied any rights for lawful use of medical marijuana and that the WC Act provides employees a statutory right to WC medical expenses that are reasonable and necessary to treat a work injury.

Reversed and Remanded.

CONCURRING AND DISSENTING OPINION BY JUDGE FIZZANO CANNON

In a dissenting opinion, Judge Cannon, joined by Judge McCullough, concurred in the majority’s conclusion that Employer did not waive its ability to assert a defense of illegality. However, the dissent asserted that the MMA does not require an Insurer to pay for medical marijuana. The MMA, relating to insurers, provides that nothing in the act 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. Therefore, the plain language of the MMA does not require reimbursement for medical marijuana prescribed to a claimant to treat a work injury. The MMA does not expressly address “reimbursement” of medical marijuana costs, but rather, provides that the MMA cannot be construed to require an insurer to provide “coverage” of such costs. “Coverage” and “reimbursement” are two sides of the same coin and it makes no sense for Claimant to argue that reimbursement may be required where coverage may not. As for the federal Controlled Substances Act’s provision 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, an insurer reimbursing for medical marijuana costs under state law could be subject to federal prosecution, as either an aider/abettor or an accessory after the fact. The provider distributes and/or dispenses medical marijuana and necessarily violates federal criminal law by doing so. Further, the Court has previously held that, 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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