Jenifer Dana Kaufman, Kaufman Workers' Compensation Law

Medical marijuana has come to Pennsylvania and by extension to the commonwealth's injured workers. What image comes to mind? Do you see an injured construction worker, homebound due to multiple failed back surgeries, breaking free of opioids and performing daily activities that have eluded him for years? Or do you see a stoner employee blissfully smoking the best pot of his life at his desk, on your dime, because a doctor “recommended” it for minor low-back strain? These scenarios capture the promise and the fear of the introduction of medical marijuana into Pennsylvania's workers' compensation system.

By the end of this article, I hope to clear the haze and provide guidance on two burning questions: How will it be determined if the use of medical cannabis is reasonable for an injured worker? And, will workers' compensation carriers be required to pay for or reimburse workers for medical marijuana?

In April 2016, The Pennsylvania Medical Marijuana Act (MMA) (Act 16) was signed into law, and earlier this year, dispensaries began to open their doors. The MMA provides in Section 2102: Nothing in this act shall be construed to require an insurer or health plan, whether paid for by commonwealth funds or private funds, to provide coverage for medical marijuana.

This section means that workers' compensation carriers would never have to directly pay medical marijuana dispensaries. However, reimbursing workers for their out-of-pocket costs is not precluded. Let's take a glance at the process of obtaining medical marijuana. This begins with an injured worker registering with the state as a medical marijuana patient. The patient then schedules an appointment with a physician on the state's list of approved doctors. At the visit the doctor decides whether the individual suffers from one of the enumerated conditions in the MMA and whether treatment with cannabis will be of benefit. If the doctor believes it would be, a generic “recommendation” (not a prescription) is provided. It is left up to the medical team at the dispensary to determine which strain and formulation of cannabis will be the most beneficial for the patient. The individual pays cash for the medical marijuana provided, which is limited to a one-month supply under the MMA. The patient, in this case an injured worker, will then seek reimbursement for the cost of the cannabis.

The first step in the reimbursement process will be determining if the use of medical marijuana is reasonable and necessary. Seasoned workers' compensation practitioners are well-versed in the concept of reasonable and necessary medical treatment from the utilization review (UR) litigation that is part of the practice. The MMA (as amended and effective May 12) lists the qualifying medical conditions for which medical cannabis can be recommended. There are four that are pertinent:

  • Neuropathies;
  • Post-traumatic stress disorder;
  • Severe chronic or intractable pain; (as of May 12, the qualifier “of neuropathic origin” or “in which conventional therapeutic intervention and opiate therapy is contraindicated or ineffective” is removed);
  • Addiction substitute therapy and opioid reduction.

A novel could be written listing the questions a workers' compensation practitioner or Judge has about this list. Do neuropathies include any nerve injury, even carpal tunnel, or just radiculopathies of the neck and back? How does a workers' compensation judge (WCJ) determine if someone suffers from chronic or intractable pain? Pain is a symptom not a diagnosis, yet our system focuses on body parts and specific medical diagnoses. What constitutes chronic? Three months? A year? If someone has chronic pain is “Chronic OG” automatically the right cannabis strain for them? Can we look to the 6th Edition of the AMA Guides for help? Chapter Three of the guides provides a detailed framework for evaluating chronic pain based upon the impairment caused as a result thereof. Or does the decision in Protz v. Workers' Compensation Appeal Board, 161 A.3d 827 Pa. 2017 regarding their now unconstitutional use relative to impairment rating evaluations (IREs) make use of the AMA Guides problematic?

The newly added “addiction substitute therapy and opioid reduction” condition also poses more questions than answers. The plain language says “opioid reduction” not elimination. This feeds into the fear of carriers that medical cannabis will not reduce costs but instead be just another item added to the standard menu of treatment for which they are billed. To be blunt, how can the use of medical cannabis possibly be reasonable if the worker is still using several medications including opiates, going to therapy three times a week, and getting monthly injections? Shouldn't the goal of medical marijuana be elimination of use of opioids and other costly treatment such as chiropractic care?

It is easy to see a dank and dreary future where carriers routinely deny claims for reimbursement as unrelated. This leaves the worker potentially unable to afford pain-reducing treatment. At the same time, the worker is forced to file a review medical treatment petition and wait months for a judicial ruling on the reasonableness of treatment. A top-shelf  claimant's attorney would file a prospective UR at the same time as a review medical treatment petition to expedite the final judicial determination on the reimbursement request.

A final adjudication finding medical marijuana to be related and reasonable and necessary treatment does not mean that the worker should automatically expect a check in the mail. After reimbursement is awarded the parties will need to take a look at the fee review provisions of the Pennsylvania Workers' Compensation Medical Cost Containment Regulations (WCMCCR). I can literally see your eyes glazing over as you read those dreaded words. Inhale slowly and exhale.

In order for the cost of medical cannabis treatment to be potentially reimbursable, it must be provided by a “health care provider” which is defined in Section 127.3 of the WCMCCR as a facility licensed or authorized by the commonwealth to provide health care services. This includes treatment provided by doctors, nurses and pharmacists. Given the requirement of the MMA that dispensaries have various licensed medical professionals on-site during operating hours, it should be easy to demonstrate that dispensaries are health care providers as defined in Section 127.3.

Payment for prescription drugs and pharmaceuticals is discussed in Sections 127.131 through 127.135 of the WCMCCR. What constitutes a prescription drug or pharmaceutical is not defined. A compelling argument can be made that medical marijuana is not a prescription drug. First, a doctor writes a “recommendation” not a prescription for it. Second, medical marijuana is physically no different than marijuana which remains illegal under federal and Pennsylvania law. The only difference is the intent of the use, not the plant or extract itself. Finally, Section 127.131 states that prescriptions are to be paid by workers' compensation carriers at a rate no higher than 110 percent of the average wholesale price (AWP) of the product. This is determined by looking at national drug schedules. However, there is no price schedule for medical cannabis as there is no national drug code for it, given its federal status.

A stronger argument can be made that medical marijuana is a pharmaceutical, defined as “related to medicinal drugs.” A judicial determination that medical marijuana is a pharmaceutical would allow for 100 perent reimbursement of out-of-pocket expenses as is customary when denied claims are later accepted.

There is another section of the WCMCCR, Section 127.109, titled Supplies and Services Not Covered by Fee Schedule. Supplies is not defined by the WCMCCR and certainly could encompass a product with medical benefits that is not a prescription. This section provides for payment at 80 percent of the provider's usual and customary charge. If this section were to be relied upon by a WCJ in ordering reimbursement, there would be a legitimate issue as to whether reimbursement would be capped at 80 percent or if the customary 100 percent would be awarded as the payment would be made to a claimant, not a provider.

Workers' compensation tribunals in other states have directed carriers to reimburse workers' out-of-pocket medical marijuana costs. A New Jersey ALJ in 2016 found the use of medical cannabis for a claimant's intractable low-back pain to be reasonable and directed the workers' compensation carrier to reimburse the worker for the cost of medical evaluations for and purchases through the New Jersey medical marijuana program in Watson v. 84 Lumber, claim petition 2009-15740.

Courts in New Mexico, Connecticut, Minnesota and Maine have also directed workers' compensation carriers to reimburse injured workers for their reasonable and necessary out-of-pocket medical marijuana costs. Other states, including Florida and North Dakota, have passed laws specifically stating that medical marijuana treatment is not reimbursable under their workers' compensation laws.

Absent the passage of such a law, it is reasonable to anticipate that Pennsylvania WCJs will direct reimbursement of medical marijuana costs in certain cases. An injured worker would be required to prove that use is for a covered condition and that it is a reasonable and necessary treatment. Medical evidence will also need to establish quantifiable pain reduction, increase in physical capabilities, and reduction or elimination of other medications and treatments.

Jenifer Dana Kaufman, is the principal of Kaufman Workers' Compensation Law. She has a special interest in ensuring access to medical marijuana by injured workers. Kaufman is certified as a Pennsylvania workers' compensation specialist.  Further, she serves as the chair of the workers' compensation sub-committee of the hemp and medical marijuana committee of the Philadelphia Bar Association. Contact her at [email protected].