Medical Marijuana and Workers’ Compensation in Pennsylvania: Your Burning Questions, Answered
On April 17, 2016, Governor Tom Wolf signed into law Pennsylvania’s Medical Marijuana Act (Act 16). The law raises a host of questions about potential use of medical marijuana by injured workers, and whether workers’ compensation carriers have to pay for treatment with medical marijuana. Below some of the common questions about the Medical Marijuana Act and its implications are answered. Pennsylvania’s law differs from that of other states, but the experience of other states in implementing their laws provides useful guidance on how Act 16 may be implemented in Pennsylvania.
What is “Medical Marijuana?
Marijuana (or cannabis) has two primary active components that are relevant to workers’ compensation carriers. THC, the psychoactive component, which can have medical benefits but does get users “high”; and CBD, a component of marijuana that has muscle relaxant and other medicinal effects, but does not cause a user to get “high.” Pennsylvania is not a CBD only state, and medical marijuana in Pennsylvania can contain THC.
The Pennsylvania law is unique in that the marijuana provided under the Act would not be in traditional leaf form. Instead, the medical marijuana must be dispensed in a processed form, typically a pill, cream/salve, or an oil that can be vaporized. Smoking of medical marijuana is forbidden, and would not make sense given the limited forms it can be legally provided in.
What medical conditions can medical marijuana be prescribed for?
Seventeen approved medical conditions are specifically listed in the Act. Of interest to workers’ compensation carriers would be four of these: (1) post-traumatic stress disorder (PTSD); (2) damage to the nervous tissue of the spinal cord with objective neurological indication of intractable spasticity; (3) neuropathies and (4) a catch-all of sorts, severe chronic or intractable pain of neuropathic origin or severe or chronic intractable pain in which conventional therapeutic intervention or opiate therapy is contraindicated or ineffective.
Carriers can rest assured that medical marijuana would not be a first-line treatment for those with physical injuries. Indeed, the law focuses on severe nerve injuries and chronic pain.
A 2014 case out of New Mexico is instructive regarding the types of injuries envisioned. In Vialpando v. Ben’s Automotive Services (2014) a workers’ compensation carrier was required to reimburse the claimant for the cost of medical marijuana prescribed to treat intractable back pain following multiple failed back surgeries. Opioids were not effective.
When a PTSD patient would be able to obtain medical marijuana in Pennsylvania is not so clear.
Does Workers’ Compensation have to cover the cost of a medical marijuana prescription?
Section 2102 of Pennsylvania’s law makes clear that insurance companies including workers’ compensation carriers are NOT required to provide coverage for medical marijuana. BUT…
Would a workers’ compensation carrier be required to reimburse a claimant for the out-of-pocket cost of medical marijuana?
This question is not so easy to answer and is likely to be the source of litigation in the future. This question has been left unanswered in the Pennsylvania statute and in the statues of many other states that have legalized medical marijuana.
Once again, the experience of other states is instructive. Four states, including Arizona, have passed laws specifically clarifying that workers’ compensation carriers do not have to reimburse injured workers for the cost of medical marijuana prescriptions. New Mexico is currently considering such a law, in the wake of the Vialpando and subsequent decisions.
But for now, there is no such law in Pennsylvania. Therefore the Workers’ Compensation Act and Medical Cost Containment Regulations would be the only guidance. Questions that would need to be answered are:
• Is the treatment with medical marijuana for a covered medical condition?
• Is the treatment with medical marijuana reasonable, necessary and casually related to the work injury?
• Are medical marijuana dispensaries a “health care provider” as defined under the Act and Section 127.3 of the regulations?
• How is reimbursement to be made/calculated given that there is no national drug code associated with medical marijuana (Section 127.131 of the regulations makes this relevant)?
• Does a workers’ compensation carrier have to payment for treatment with a drug that is still considered illegal under Federal law (a Class I controlled substance)?
Is there a scenario where a workers’ compensation carrier would want to pay for treatment with medical marijuana?
There could be situations where the cost of medical marijuana is significantly less than the monthly cost of multiple opioids, compound creams and injections, especially in Claimants with chronic pain from failed surgeries or RSD. This is especially true in cases where the medical marijuana would replace the other prescriptions.
Furthermore, there is always the risk of overdose from opioids leading to a fatal claim. The latest science suggests that medical marijuana is not addictive, and there are no documented cases of death from medical marijuana overdose. In cases where claimants are on powerful opiate regimens including Fentanyl, Oxymorphone and the like, a detox program followed by the use of medical marijuana could feasibly make both medical and economic sense.