The legalization of marijuana for both medical use and recreational use is a hot topic in legal circles these days. There are many ramifications to both types of legalization, involving many different stakeholders. In terms of the legalization of medical marijuana, stakeholders could include workers’ compensation claimants, carriers, and providers. The problem we are faced with currently is that there are unfortunately more questions than answers in this field, largely because the law with regard to this issue, both in PA and federally, is in a great state of flux at the moment.

Recently, the PA legislature began the process of addressing the issue of legalizing marijuana for medical purposes by passing the PA Medical Marijuana Act on April 17, 2016. As of August 1, 2018, it became legal under this Act to sell marijuana in flower form for medical use. The law does not legalize the smoking of marijuana. Initially, the use of medical marijuana was limited to treatment of neuropathies, PTSD, and severe chronic or intractable pain (as of 5/12/2018, the qualifiers “of neuropathic origin” and “in which conventional therapeutic intervention and opiate therapy is contraindicated or ineffective” were removed). Recently, the Act has been expanded to apply to “addiction substitute therapy and opioid reduction.”

In order to avail oneself of the provisions of the Act, a patient has to register with the state and make an appointment with a doctor approved by the state to recommend medical marijuana. In order to become approved, the doctors must attend a four hour course. The patient must pay cash for this visit. The doctor determines whether or not the patient has a “qualifying medical condition” (as listed above) and then determines if medical marijuana would be helpful in treating the condition.

If the doctor finds that medical marijuana may be helpful in treating the patient’s condition, he or she does not write a prescription. He makes a “recommendation.” The patient must then obtain and pay for a medical marijuana card through the state. Once the patient has the card, he or she must take the recommendation to a state-approved dispensary. After a consultation with a pharmacist and a technician, the patient will be given the medical marijuana. The amount that the patient will be given is limited to a one month supply. The patient must again pay cash for the substance.

It should be noted that PA law does not allow patients to grow their own marijuana.

In terms of workers’ compensation coverage, the Medical Marijuana Act states in Section 2102 that “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 sounds fairly straightforward, and one could be led to believe that this is the end of the analysis. This language, however, is in direct contradiction to the language of the PA Workers’ Compensation Act which requires payment for all reasonable, necessary and causally-related medical treatment. In addition, the Medical Marijuana Act does not address whether the carrier can be forced to reimburse a claimant for the expenses. So far, there is no case law on the issue (although it is anticipated that there certainly will be). A carrier can agree to pay for medical marijuana. This is not prohibited in the PAMMA.

The analysis does not end with the conflict between the PAMMA and the WC Act. There are a plethora of federal law issues involved, as well. Despite various states legalizing marijuana for both medical and recreational purposes, the use of marijuana is still illegal under federal law.

What recourse does a carrier who does not wish to pay for medical marijuana do? There are several potential defenses. First, the carrier can raise the aforementioned federal law ban on marijuana. Second, the carrier can argue that claimant’s condition does not meet the requirement of being a “qualified condition.” (Likely a medical opinion is going to be needed for this defense). Third, the carrier can allege that the treatment was not related to the accepted injury. (Again, a medical opinion is likely necessary here). Several potential issues arise under this defense—for example, how does one define chronic intractable pain? (Pain is considered a symptom, not a diagnosis); does the chronic intractable pain have to be the result of a neuropathy or qualifying medical condition, or is the listing of the body part and diagnoses that causes the chronic pain sufficient?; with regard to opioid addiction therapy, how does one measure the effectiveness, and does the addiction need to be listed on the NCP in order to be covered? (Expect a lot of petitions to review). Fourth, the carrier can challenge the reasonableness or necessity of the treatment via the IRE process, but there are issues, here, too—for example, does the carrier waive the relatedness defense by obtaining an IRE? How does one prove reasonableness of this type of treatment? What evidence needs to be submitted in order to make this determination?

As mentioned above, there are currently more questions than answers about how to handle this issue. Other states have addressed it in diverse ways. In fact, thirty-two states plus the District of Columbia, Guam and Puerto Rico have medical marijuana laws. For example: Florida, Arizona and Illinois have decided that medical marijuana is not reimbursable under their workers’ compensation acts. Other states, such as Maine, New Hampshire, Vermont and New York have decided that medical marijuana is not reimbursable due to the federal illegality. Still other states have directed that medical marijuana be reimbursed despite the federal law (New Jersey, Connecticut and New Mexico).

Problems may also arise with the fee schedule for payment and cost–containment regulations. The PA cost-containment regulations require that the services be provided by a “health care provider” (although see massage therapy). It also requires payment for “prescription drugs and pharmaceuticals.” Medical marijuana is not prescribed, it is merely “recommended.” Some states have come up with creative ways to address these issues, such as creating a separate schedule for medical marijuana, and defining the amount and price (one unit = 1 gram dry weight equivalent, and each unit is worth $12.02).

Many other issues can arise under the scenario of medical marijuana use, including:
1. Does payment through the mail amount to mail fraud or money laundering?
2. Is the use of medical marijuana a reasonable accommodation under the ADA?
3. Medicare does not cover medical marijuana—how will this affect MSAs?
4. Is it good faith to offer a Claimant a job or find a job in a labor market survey that he cannot do because of his use of medical marijuana?
5. What if the patient overdoses on marijuana? Does that create liability for the death claim if the carrier has been reimbursing Claimant for the treatment?

These are issues that our clients and we will no doubt be dealing with and litigating in the next several years, unless the legislature and Congress act to change the laws, which is unlikely to happen very quickly. Perhaps we will be on the forefront of making new law in this area.