On April 17, 2016, the Pennsylvania Medical Marijuana Act (MMA) was signed into law. However, even at the outset, it was anticipated that it would take between 18 and 24 months to implement the program. Thus, we are only now beginning to address issues arising from the Act.
Employers and Workers’ Compensation carriers are concerned with whether they will be required to pay for medical marijuana prescribed for a work injury. Pursuant to the Pennsylvania Workers’ Compensation Act, employers are required to pay for reasonable and necessary medical treatment causally related to a work injury. Where medical marijuana is now legal in Pennsylvania, it appears likely that it may be found to be reasonable by either Utilization Review or a Workers’ Compensation Judge.
However, the MMA in Pennsylvania is limited in its scope. A worker cannot legally use medical marijuana for any work injury. Instead, the MMA applies to only serious medical conditions. This is defined as any of 17 enumerated medical conditions. These include very serious and often fatal conditions of cancer, HIV, and MS. For Workers’ Compensation purposes, the conditions that will most likely be relevant are (6) “damage to the nervous tissue of the spinal cord with objective neurological indication of intractable spasticity”; (9) neuropathy; (12) post-traumatic stress disorder; and (16) “severe chronic or intractable pain of neuropathic origin” OR “severe chronic or intractable pain in which conventional therapeutic intervention and opiate therapy is contraindicated or ineffective.” Pursuant to this definition, it is not anticipated that every Workers’ Compensation Claimant will legally receive medical marijuana.
Moreover, even if a worker has a serious medical condition, a worker must comply with the stringent requirements of the Act before their marijuana use can be considered legal. In this regard, a physician must be registered and certified by the Department of Health. Likewise, a patient must obtain a certification from their medical provider as well as an identification card from the Department of Health. Then, the worker must purchase the medical marijuana from a registered dispensary. Significantly, medical marijuana has only been approved in certain forms such as pill, oil, and topical forms as well as forms approved for vaporization and nebulization but not dry leaf or plant form until such forms become acceptable under regulations adopted under Section 1202 of the MMA.
Given this bureaucracy, we have not yet received a case where a Claimant was legally using medical marijuana in Pennsylvania. Instead, our early litigation has involved Claimants who have obtained medical marijuana in other states. Thus, we have argued that it is not reasonable medical treatment in Pennsylvania. However, it is only a matter of time before we see a Claimant obtain medical marijuana legally in this state. Pennsylvania Governor Wolf announced in January that the first dispensary was open for business.
The issue is further complicated by the fact that cannabis remains illegal under federal law. In this regard, U.S. Attorney General Jeff Sessions recently rescinded Obama era policy that discouraged Federal prosecutors from bringing charges where the drug use was legal under state law. Certainly, this could be the basis of an argument that medical marijuana is not reasonable treatment.
The other issue to consider is whether medical marijuana provides a more cost effective alternative to expensive narcotics and/or compound creams. Certainly, we are all cognizant of the opioid epidemic. Accordingly, many in Pennsylvania are optimistic that medical marijuana may provide a safer and more cost effective treatment alternative to opioids.
For a confidential analysis of your workers’ compensation issues, or questions about TRC’s workers’ compensation practice area, please contact Harry W. Rosensteel, Esquire at (412) 316-8686 or [email protected].
Important Notice: This information is intended for general guidance only, and should not be used as a substitute for specific legal advice. For specific legal advice applicable to your situation, you should consult an attorney of your choice. Although believed to be accurate when written, no guarantee of completeness or accuracy to your particular circumstances should be implied. Laws, regulations, and court decisions in this area change frequently, and you should consult the attorney of your choice for up-to-date information.