holding that a WC insurer “would be aiding and abetting [the claimant]—in his purchase, possession, and use of marijuana—by acting with knowledge that it was subsidizing [his] purchase of marijuana”
How later courts described this case
- holding that a WC insurer “would be aiding and abetting [the claimant]—in his purchase, possession, and use of marijuana—by acting with knowledge that it was subsidizing [his] purchase of marijuana”
- suggesting that “the magnitude of the risk of criminal prosecution is immaterial . . . . Prosecuted or not, the fact remains that [an insurer] would be forced to commit a federal crime if it complied with the [reimbursement] directive of the [WC] [b]oard.”
- vocational expert’s lack of professional licensure by the Commonwealth meant that employer did not have to pay his bills, despite the fact that claimant’s physician wrote a prescription for vocational expert services
- finding no waiver where illegality was asserted “under a statute enacted in aid of significant public policies identified by the Pennsylvania legislature”
Written by the judges who cited it.
The opinion
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Edward Appel, :
Petitioner :
:
v. :
:
GWC Warranty Corporation :
(Workers’ Compensation :
Appeal Board), : No. 824 C.D. 2021
Respondent : Argued: September 14, 2022
BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE ELLEN CEISLER, Judge
HONORABLE STACY WALLACE, Judge
OPINION BY
JUDGE COVEY FILED: March 17, 2023
Edward Appel (Claimant) petitions this Court for review of the
Workers’ Compensation (WC) Appeal Board’s (Board) June 23, 2021 order
affirming the WC Judge’s (WCJ) decision that partially denied Claimant’s Petition
to Review Medical Treatment and/or Billing (Review Medical Petition). The sole
issue before this Court is whether the Board erred by concluding that “[b]ased on the
plain language of the Medical Marijuana Act [(MMA)1], . . . an insurer or employer
cannot be required to pay for medical marijuana.”2 Reproduced Record (R.R.) at
23a.
1
Act of April 17, 2016, P.L. 84, as amended, 35 P.S. §§ 10231.101-10231.2110.
2
Claimant sets forth two issues in his Statement of Questions Involved: (1) whether the
Board erred by failing to address whether the WCJ applied the incorrect burden of proof when
rendering a decision on Claimant’s Review Medical Petition; and (2) whether the Board erred by
Facts
On March 1, 2006, Claimant sustained a work-related herniated disc at
L5-S1, cervical sprain, disc herniation at L4-L5, lumbar radiculopathy, cervical
strain with cervical myofascial spasm, major depression, and aggravation of cervical
degenerative spondylosis of degenerative disc disease. Employer accepted
Claimant’s injury via a Stipulation of Facts approved in a July 9, 2015 WCJ
Decision.
Claimant received extensive treatment for his work injury, including
two lower back surgeries. See R.R. at 10a; WCJ Dec. at 5 (Finding of Fact (FOF)
No. 6). Claimant continues to experience chronic low back pain and symptoms in
his legs for which his doctor prescribed opioids. See id. Claimant gradually weaned
himself off of all the opioid medications by September 2018, but experienced a
tremendous amount of withdrawal symptoms during the stepdown process. See id.
(FOF No. 7).
In approximately April 2018, Claimant received his medical marijuana
card and used medical marijuana while he was weaning himself off of the opioids.
See id. (FOF No. 8). Claimant testified that the medical marijuana was more
effective for him than any medication he had ever taken, because the opioids became
less and less effective over time in addressing his chronic back and leg pain. See id.
On October 11, 2018, Claimant filed the Review Medical Petition
seeking a determination that his use of medical marijuana was causally related to his
work injury and an order directing Employer to reimburse him for the cost thereof.
On July 30, 2020, the WCJ partially denied the Review Medical Petition. The WCJ
concluded that Claimant met his burden of proving that his use of medical marijuana
finding that Claimant failed to meet his burden of proving that Employer is obligated to reimburse
Claimant for his out-of-pocket medical marijuana expenses. Claimant Br. at 4. Because
Claimant’s burden of proof is irrelevant to the underlying dispositive issue, this Court has
rephrased the issue for ease of discussion.
2
was related to the accepted work injury. However, the WCJ concluded that Claimant
failed to prove that Employer must reimburse him for his out-of-pocket medical
marijuana expenses pursuant to Section 2102 of the MMA,3 which does not require
an insurer or health plan to provide coverage for medical marijuana. Claimant
appealed to the Board, which affirmed the WCJ’s decision. Claimant appealed to
this Court.4
Relevant Law
Initially,
[i]n conducting [this Court’s] review, we are cognizant of
the fact that, “the Pennsylvania [WC] Act[5] is remedial
in nature and intended to benefit the worker, and,
therefore, the [WC] Act must be liberally construed to
effectuate its humanitarian objectives.” Peterson v.
Workmen’s Comp[.] Appeal Bd. (PRN Nursing
Agency), . . . 597 A.2d 1116, 1120 ([Pa.] 1991) (collecting
cases). Accordingly, “‘[b]orderline interpretations of [the]
[WC] Act are to be construed in [the] injured party’s
favor.’” Hannaberry [HVAC v. Workers’ Comp. Appeal
Bd. (Snyder, Jr.)], 834 A.2d [524,] 528 [(Pa. 2003)]
[(]quoting Harper & Collins v. Workmen’s Comp[.]
Appeal Bd. (Brown), . . . 672 A.2d 1319, 1321 ([Pa.] 1996)
(citation omitted)[)].
Reifsnyder v. Workers’ Comp. Appeal Bd. (Dana Corp.), 883 A.2d 537, 541-42 (Pa.
2005) (emphasis added). This Court has explained:
“It is accepted that, pursuant to [Section 301(c) of] the
[WC] [Act], an employer is only liable to pay for a
3
35 P.S. § 10231.2102.
4
“Our review is limited to determining whether the WCJ’s findings of fact were supported
by substantial evidence, whether an error of law was committed or whether constitutional rights
were violated.” DiLaqua v. City of Phila. Fire Dep’t (Workers’ Comp. Appeal Bd.), 268 A.3d 1,
4 n.5 (Pa. Cmwlth. 2020) (quoting Bristol Borough v. Workers’ Comp. Appeal Bd. (Burnett), 206
A.3d 585, 595 n.6 (Pa. Cmwlth. 2019)).
5
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2710.
3
claimant’s medical expenses that arise from and are
caused by a work-related injury. 77 P.S. § 411(1)[.]”
Kurtz v. Workers’ Comp. Appeal Bd. (Waynesburg Coll.),
794 A.2d 443, 447 (Pa. Cmwlth. 2002) (footnote omitted).
Although the burden is initially on the claimant to
establish that the injury is work-related, once the employer
acknowledges liability for the injury, “the claimant is not
required to continually establish that medical treatment of
that compensable injury is causally related because the
injury for which the claimant is treating has already been
established.” Id. Accordingly, thereafter, the employer
has the burden of proving that a medical expense is
unreasonable, unnecessary, or is not related to the
accepted work injury.
Rogele, Inc. v. Workers’ Comp. Appeal Bd. (Hall), 198 A.3d 1195, 1200 (Pa.
Cmwlth. 2018) (emphasis added).
Section 841(a) of the federal Controlled Substances Act (Federal Drug
Act)6 provides, in relevant part, 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[.]” 21 U.S.C. § 841(a).7
However, Section 903 of the Federal Drug Act expressly provides:
No provision of this 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 [s]tate law on
the same subject matter which would otherwise be within
the authority of the [s]tate, unless there is a positive
conflict between that provision of this subchapter and that
[s]tate law so that the two cannot consistently stand
together.
21 U.S.C. § 903 (emphasis added).
6
21 U.S.C. §§ 801-971. .
7
“Mari[j]uana” is classified as a “Schedule I” controlled substance. 21 U.S.C. §
812(c)(c)(10).
4
Section 102 of the MMA provides:
The General Assembly finds and declares as follows:
(1) Scientific evidence suggests that medical marijuana
is one potential therapy that may mitigate suffering in
some patients and also enhance quality of life.
(2) The Commonwealth is committed to patient safety.
Carefully regulating the program which allows access to
medical marijuana will enhance patient safety while
research into its effectiveness continues.
(3) It is the intent of the General Assembly to:
(i) Provide a program of access to medical
marijuana which balances the need of patients
to have access to the latest treatments with the
need to promote patient safety.
(ii) Provide a safe and effective method of
delivery of medical marijuana to patients.
(iii) Promote high quality research into the
effectiveness and utility of medical marijuana.
(4) It is the further intention of the General Assembly that
any Commonwealth-based program to provide access to
medical marijuana serve as a temporary measure, pending
[f]ederal approval of and access to medical marijuana
through traditional medical and pharmaceutical avenues.
35 P.S. §10231.102 (bold and italic emphasis added).
Under the [MMA], “[n]ot[]withstanding any provision
of law to the contrary, use or possession of medical
marijuana as set forth in [the] [MMA] is lawful within
this Commonwealth.” [Section 303(a) of the MMA, 35
P.S.] § 10231.303(a). Relevantly, medical marijuana may
only be dispensed, however, to patients who receive
certifications from qualified physicians and possess a valid
identification card issued by the Pennsylvania Department
of Health. See [Section 303(b)(1)(i) of the MMA, 35 P.S.]
§ 10231.303(b)(1)(i). A “patient” is a Pennsylvania
resident who has an enumerated serious medical
condition and has met specified requirements for
5
certification. [Section 103 of the MMA, 35 P.S.] §
10231.103. Notably, there are many other regulatory
requirements and restrictions imposed throughout the
[MMA].
And of particular relevance here, the MMA contains
an immunity provision protecting patients from
government sanctions. See [Section 2103(a) of the
MMA,] 35 P.S. § 10231.2103(a). Per the statute, no such
individual “shall be subject to arrest, prosecution or
penalty in any manner, or denied any right or privilege,
. . . solely for lawful use of medical marijuana . . . or for
any other action taken in accordance with [the MMA].”
Id.
Gass v. 52nd Jud. Dist., Lebanon Cnty., 232 A.3d 706, 708 (Pa. 2020) (bold and
italic emphasis added).
Moreover, in the relevant rider to the federal Consolidated
Appropriations Act (CAA), Congress prohibited the federal Department of Justice
(DOJ) from using allocated funds to prevent states, including Pennsylvania, from
implementing their medical marijuana laws. See CCA, 2021, Pub. L. No. 116-260,
§ 531, 134 Stat. 1182, 1282-83 (2020).8 Specifically, Section 531 of the CAA
provides, in relevant part:
None of the funds made available under [the CAA] to
the [DOJ] may be used, with respect to any of the
[s]tates of Alabama, Alaska, Arizona, Arkansas,
California, Colorado, Connecticut, Delaware, Florida,
Georgia, Hawaii, Illinois, Indiana, Iowa, Kentucky,
Louisiana, Maine, Maryland, Massachusetts, Michigan,
8
Similar language has been included in appropriations riders dating back to the 2015
federal budget, although the list of states and territories with medical marijuana legislation has
been expanded over the years to reflect new enactments. See CAA, 2020, Pub. L. No. 116-93, §
531, 133 Stat. 2317, 2431 (2019); CAA, 2019, Pub. L. No. 116-6, § 537, 133 Stat. 13, 138 (2019);
CAA, 2018, Pub. L. No. 115-141, § 538, 132 Stat. 348, 444-45 (2018); CAA, 2017, Pub. L. No.
115-31, § 537, 131 Stat. 135, 228 (2017); CCA, 2016, Pub. L. No. 114-113, § 542, 129 Stat. 2242,
2332-33 (2015); Consolidated and Further Continuing Appropriations Act, 2015, Pub. L. No. 113-
235, § 538, 128 Stat. 2130, 2217 (2014). Congress approved the appropriations rider every year
thereafter.
6
Minnesota, Mississippi, Missouri, Montana, Nevada, New
Hampshire, New Jersey, New Mexico, New York, North
Carolina, North Dakota, Ohio, Oklahoma, Oregon,
Pennsylvania, Rhode Island, South Carolina, South
Dakota, Tennessee, Texas, Utah, Vermont, Virginia,
Washington, West Virginia, Wisconsin, and Wyoming, or
with respect to the District of Columbia, the
Commonwealth of the Northern Mariana Islands, the
United States Virgin Islands, Guam, or Puerto Rico, to
prevent any of them from implementing their own laws
that authorize the use, distribution, possession, or
cultivation of medical marijuana.
Id. (emphasis added).
Taking into consideration the above-cited law, the Court will now
address the issues Claimant has presented in this appeal.
Discussion
Claimant first argues that the Board erred by failing to address whether
the wrong burden of proof was applied in the underlying litigation before the WCJ.
Specifically, Claimant contends that since the WCJ determined that Claimant’s
medical marijuana use is causally related to his work-related injuries, it was
Employer’s burden to prove that the medical marijuana is an unreasonable and
unnecessary treatment for the work-related injuries. Employer rejoins that whether
the burden of proof is on Claimant or Employer is irrelevant because the issue on
appeal is whether Employer can be compelled to pay for Claimant’s lawful use of
medical marijuana.
Initially, Claimant is correct that “[E]mployer has the burden of proving
that a medical expense is unreasonable, unnecessary, or is not related to the accepted
work injury.” Rogele, Inc., 198 A.3d at 1200. However, notwithstanding that the
WCJ concluded that Claimant’s lawful medical marijuana use was causally related
to Claimant’s work injury, the WCJ further concluded that an insurer or employer
7
cannot be required to pay for medical marijuana. Thus, the issue before this Court
is whether the WCJ properly concluded that Employer is precluded from
reimbursing Claimant for his medical marijuana out-of-pocket costs. Employer
maintains that Employer cannot be compelled to pay for Claimant’s lawful medical
marijuana use pursuant to Section 2102 of the MMA.
At the outset,
[w]hen terms are not defined, we turn to the rules of
statutory construction, which are applicable to statutes and
ordinances alike, for guidance. Kohl v. New Sewickley
[Twp.] Zoning Hearing [Bd.], 108 A.3d 961, 968 (Pa.
Cmwlth. 2015). “The interpretation of a statute or
ordinance presents this Court with a pure question of law,
which is generally subject to plenary review.” Id.
The primary objective of statutory interpretation is to
determine the intent of the enacting legislation. Section
1921 of the Statutory Construction Act of 1972 (Statutory
Construction Act), 1 Pa. C.S. § 1921. A statute’s plain
language generally provides the best indication of
legislative intent, and, therefore, statutory construction.
Uniontown Newspapers, Inc. v. [Pa.] Dept[’t] of
Corr[.], . . . 243 A.3d 19, 32 ([Pa.] 2020). “Words and
phrases shall be construed according to rules of grammar
and according to their common and approved usage.”
Section 1903 of the Statutory Construction Act, 1 Pa. C.S.
§ 1903. “Also, where a court needs to define an undefined
term, it may consult dictionary definitions for guidance.”
THW [Grp.], LLC v. Zoning [Bd.] of Adjustment, 86 A.3d
330, 336 (Pa. Cmwlth. 2014).
Sheppleman v. City of Chester Aggregated Pension Fund, 271 A.3d 938, 949 (Pa.
Cmwlth. 2021).
Section 2102 of the MMA provides: “Nothing in [the MMA] 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.” 35 P.S. § 10231.2102 (emphasis added). While a plain reading of the
8
statute does not require an insurer to provide coverage, it does not prohibit an
insurer from covering it either. Specifically, Section 2102 of the MMA does not
prohibit an insurer or health plan from reimbursing payment for medical marijuana.
Further, “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.” Fegley, as Executrix of the
Est. of Sheetz v. Firestone Tire & Rubber (Workers’ Comp. Appeal Bd.), ___ A.3d
___ (Pa. Cmwlth. No. 680 C.D. 2021, filed Mar. 17, 2023), slip op. at 17. “This
Court has consistently held that courts may not supply words omitted by the
legislature as a means of interpreting a statute. This Court’s duty to interpret statutes
does not include the right to add words or provisions that the legislature has left out.”
McCloskey v. Pa. Pub. Util. Comm’n, 219 A.3d 692, 702 n.9 (Pa. Cmwlth. 2019)
(quoting Rogele, Inc. v. Workers’ Comp. Appeal Bd. (Mattson), 969 A.2d 634, 637
(Pa. Cmwlth. 2009) (citations omitted)).
In Fegley, this Court explained:
Section 2103 of the MMA, entitled Protections for Patients
and Caregivers, provides in subsection (a) that no
individual “shall be . . . denied any right or privilege . . .
solely for lawful use of medical marijuana.” 35 P.S. §
10231.2103(a) (bold and italic emphasis added). Section
301(a) of the WC Act mandates: “Every employer shall be
liable for compensation for personal injury to, . . . each
employe, by an injury in the course of his employment,
and such compensation shall be paid in all cases by the
employer,” 77 P.S. § 431 (emphasis added), and Section
306(f.1)(1)(i) of the WC Act requires: “The employer
shall provide payment in accordance with this section for
reasonable surgical and medical services, . . . medicines
and supplies, as and when needed.” 77 P.S. § 531(1)(i)
(emphasis added). The MMA specifically mandates that
no medical marijuana patients be denied any rights for
lawful use of medical marijuana and the WC Act provides
employees a statutory right to WC medical expenses that
are reasonable and necessary to treat a work injury;
9
therefore, if this Court was to agree with Employer, it
would be removing those express protections from the
MMA and the WC Act.
The Pennsylvania Supreme Court has instructed that “[w]e
presume that when enacting legislation, the General
Assembly is aware of the existing law.” In Re Est. of
Easterday, 209 A.3d 331, 341-42 (Pa. 2019). Thus, herein
we presume, as we must, that the General Assembly was
aware of the WC Act’s mandate that employers pay for
employees’ reasonable and necessary medical treatment of
work injuries when it authorized medical marijuana as a
medical treatment. See Easterday. The MMA in no
manner alters these preexisting employment rights and
obligations. In fact, in the MMA’s policy declaration, the
General Assembly expressly declared: “Scientific
evidence suggests that medical marijuana is one
potential therapy that may mitigate suffering in some
patients and also enhance quality of life.” 35 P.S. §
10231.102 (emphasis added). Further, the MMA defines
a serious medical condition as including “[s]evere chronic
or intractable pain of neuropathic origin or severe chronic
or intractable pain.” [Section 103(16) of the MMA,] 35
P.S. § 10231.103(16). Intractable pain is defined as
“[c]hronic pain which is difficult or impossible to manage
with standard interventions.” Medical Dictionary, 2009
[https://medical-
dictionary.thefreedictionary.com/intractable+pain (last
visited Jan. 30, 2023)]; see also McGraw-Hill Concise
Dictionary of Modern Medicine, 2002 [https://medical-
dictionary.thefreedictionary.com/intractable+pain (last
visited Jan. 30, 2023)] (“[P]ain that does not respond to
appropriate doses of opioid analgesics.”). Thus, the
General Assembly explicitly intended Commonwealth
residents suffering from intractable pain to have the
benefit of this therapy, and at the same time chose not to
limit claimants from receiving their statutory rights.
Fegley, slip op. at 14-16 (footnotes omitted).
The Fegley Court expounded:
“Moreover, we presume the General Assembly did not
intend a result that is ‘absurd, unreasonable, or impossible
to execute.’” MERSCORP, Inc. v. Del. Cnty., 207 A.3d
10
855, 861 (Pa. 2019) (quoting In re Concord Twp. Voters,
119 A.3d 335, 341-42 (Pa. 2015)). Given the General
Assembly’s clear declaration and intention in enacting the
MMA, and the MMA’s unambiguous statutory language,
it is free from doubt that the medical marijuana system the
General Assembly created for the well-being and safety of
patients, including claimants, was intended for them to
have access to the latest medical treatments. Any other
interpretation would lead to an unintended, absurd
result.[FN]16 See MERSCORP.
[FN]16
Accepting [the e]mployer’s argument
presumes the General Assembly intentionally
carved out a special class of employees who are
prescribed medical marijuana for their work-
related injuries, but unlike other injured employees
are not paid for treatment of their work-related
injuries.
Fegley, slip op. at 16-17. Accordingly, because Section 2102 of the MMA does not
prohibit insurers from covering medical marijuana, the WC Act mandates
employers to reimburse claimants for out-of-pocket costs of medical treatment
which has been found to be reasonable and necessary for their work-related injury,
and the WCJ concluded that the medical marijuana use was causally related to the
work injury, Employer is required to reimburse Claimant for his out-of-pocket costs
under the WC Act. 9
Employer further claims that Employer cannot be compelled to pay for
Claimant’s medical marijuana use under Section 2103(b)(3) of the MMA, which
provides: “Nothing in [the MMA] shall require an employer to commit any act that
9
The Dissent submits that because the MMA was enacted after the WC Act, and marijuana
was illegal under state law at the time the WC Act was enacted, the WC Act does not require
employers to provide payment to claimants for reasonable and necessary medical treatment under
the WC Act if it includes medical marijuana. However, the WC Act requires employers to pay for
reasonable and necessary medical treatment for a work-related injury. The MMA provides that
marijuana is an acceptable medical treatment in Pennsylvania. Therefore, the WC Act requires
employers to pay for medical marijuana when it is determined that the medical marijuana is
reasonable and necessary to treat a work-related injury.
11
would put the employer or any person acting on its behalf in violation of [f]ederal
law.” 35 P.S. § 10231.2103(b)(3). Specifically, Employer contends that because it
is illegal under the Federal Drug Act to prescribe a Schedule I drug, and marijuana
is a Schedule I drug, employers cannot be compelled to pay for such use. However,
since Employer is not prescribing marijuana, but rather reimbursing Claimant for his
lawful use thereof, Employer is not in violation of the Federal Drug Act. See also
Fegley, slip op. at 18-19 (“Because reimbursing [a c]laimant for his out-of-pocket
expenses for his lawful use of medical marijuana would not require [an e]mployer’s
WC carrier ‘to manufacture, distribute, or dispense, or possess with intent to
manufacture, distribute, or dispense, a controlled substance,’ 21 U.S.C. § 841(a),
[the e]mployer’s WC carrier would not violate the Federal Drug Act, or be at risk of
facing federal prosecution by doing so.”). Accordingly, because Employer would
not be in violation of the Federal Drug Act by reimbursing Claimant for his lawful
medical marijuana use, and the WCJ concluded that the medical marijuana use was
causally related to the work injury, Employer is required to reimburse Claimant for
his out-of-pocket costs under the WC Act.10
10
The Dissent posits that although the MMA legalizes the use of medical marijuana in
Pennsylvania, a provider still cannot legally dispense marijuana under federal law; therefore,
because it is illegal, such treatment cannot be reasonable under the WC Act. However, Section
306(f.1)(1)(i) of the WC Act requires: “The employer shall provide payment in accordance with
this section for reasonable surgical and medical services, . . . medicines and supplies, as and when
needed.” 77 P.S. § 531(1)(i). The fact that dispensing marijuana is illegal under federal law does
not transform a medically reasonable and necessary treatment under the WC Act for a work injury
to a medically unreasonable and unnecessary treatment. Such a determination would eviscerate
the entire MMA.
12
Conclusion
Because Section 2102 of the MMA does not prohibit insurers from
covering medical marijuana, and the WCJ concluded that Claimant’s lawful medical
marijuana use was causally related to the work injury, the WC Act mandates
employers to reimburse claimants for out-of-pocket costs of medical treatment
which has been found to be reasonable and necessary for their work-related injuries,
Employer is required to reimburse Claimant for his out-of-pocket costs under the
WC Act. Further, since Employer is not prescribing marijuana, but rather
reimbursing Claimant for his lawful use thereof, Employer is not in violation of the
Federal Drug Act.
Given the WC Act’s “humanitarian objectives,” Reifsnyder, 883 A.2d
at 542 (quoting Peterson, 597 A.2d at 1120), the Federal Drug 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[,]” 21 U.S.C. § 841(a) (emphasis added), the General
Assembly’s express intent to provide Commonwealth citizens who are patients
“access to medical marijuana,” 35 P.S. §10231.102(3)(i) (emphasis added), “the
MMA[’s] contain[ment of] an immunity provision protecting patients from
government sanctions[,]” Gass, 232 A.3d at 708, and that “no [] individual ‘shall be
. . . denied any right or privilege, . . . solely for lawful use of medical marijuana . . .
[,]’” id., this Court concludes that the Board erred by concluding an insurer or
employer cannot be required to pay for medical marijuana.
For all of the above reasons, the portion of the Board’s order that
partially denied the Review Medical Petition is reversed.
_________________________________
ANNE E. COVEY, Judge
13
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Edward Appel, :
Petitioner :
:
v. :
:
GWC Warranty Corporation :
(Workers’ Compensation :
Appeal Board), : No. 824 C.D. 2021
Respondent :
ORDER
AND NOW, this 17th day of March, 2023, the portion of the Workers’
Compensation Appeal Board’s June 23, 2021 order that partially denied the Petition
to Review Medical Treatment and/or Billing is reversed.
_________________________________
ANNE E. COVEY, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Edward Appel, :
Petitioner :
:
v. :
:
GWC Warranty Corporation (Workers’ :
Compensation Appeal Board), : No. 824 C.D. 2021
Respondent : Argued: September 14, 2022
BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE ELLEN CEISLER, Judge
HONORABLE STACY WALLACE, Judge
DISSENTING OPINION
BY JUDGE FIZZANO CANNON FILED: March 17, 2023
Like most other states, Pennsylvania has enacted legislation legalizing
and regulating the production, sale, and use of medical marijuana. In Pennsylvania,
that legislation is the Medical Marijuana Act (MMA).1 Although its sale remains
illegal under federal law and its use has not yet been approved by the United States
Food and Drug Administration (FDA), medical marijuana is widely approved in
individual states for a variety of medical purposes, including alleviation of chronic
pain as an alternative to the use of opioids.
1
Act of April 17, 2017, P.L. 84, as amended, 35 P.S. §§ 10231.101-10231.2110.
The interplay of federal and state laws relating to medical marijuana
has created a legal morass that cries out for clarification at the federal level. The
Massachusetts Supreme Court has observed that
the current legal landscape of medical marijuana law may,
at best, be described as a hazy thicket. Marijuana is illegal
at the [f]ederal level and has been deemed under [f]ederal
law to have no medicinal purposes, but . . . a majority of
. . . [s]tates, have legalized medical marijuana and created
regulatory schemes for its administration and usage.
Complicating and confusing matters further, Congress has
placed budgetary restrictions on the ability of the United
States Department of Justice to prosecute individuals for
marijuana usage in compliance with a [s]tate medical
marijuana scheme, and the Department of Justice has
issued, revised, and revoked memoranda explaining its
marijuana enforcement practices and priorities, leaving in
place no clear guidance.
Wright’s Case, 156 N.E.3d 161, 165 (Mass. 2020). Nonetheless, state courts,
including this Court, must address this interplay when necessary, as here, despite its
current unsettled status.
Medical research concerning the efficacy and safety of medical
marijuana is evolving, and this writing expresses no opinion concerning those issues.
However, in the workers’ compensation (WC) context, and under the current state
and federal laws, I cannot conclude that the MMA requires a WC insurance carrier
to pay a claimant’s costs incurred in purchasing medical marijuana. Therefore, for
the following reasons, I respectfully disagree with the majority’s conclusion that
GWC Warranty Corporation or its insurer (Employer) must reimburse Edward
Appel (Claimant) for medical marijuana prescribed for pain resulting from a work-
related injury.
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I. The MMA Does Not Require an Insurer to Pay for Medical Marijuana
Under the MMA’s declaration of policy, “[t]he General Assembly finds
and declares as follows”:
(1) Scientific evidence suggests that medical marijuana is
one potential therapy that may mitigate suffering in some
patients and also enhance quality of life.
(2) The Commonwealth is committed to patient safety.
Carefully regulating the program which allows access to
medical marijuana will enhance patient safety while
research into its effectiveness continues.
(3) It is the intent of the General Assembly to:
(i) Provide a program of access to medical
marijuana which balances the need of patients to
have access to the latest treatments with the need to
promote patient safety.
(ii) Provide a safe and effective method of delivery
of medical marijuana to patients.
(iii) Promote high quality research into the
effectiveness and utility of medical marijuana.
(4) It is the further intention of the General Assembly that
any Commonwealth-based program to provide access to
medical marijuana serve as a temporary measure, pending
Federal approval of and access to medical marijuana
through traditional medical and pharmaceutical avenues.
Section 102 of the MMA, 35 P.S. § 10231.102. Thus, while seeking to advance
medical research and enhance quality of life, the MMA also reflects caution in
enacting “a temporary measure” regarding access to medical marijuana, as well as
in “balanc[ing] the need of patients to have access to the latest treatments with the
need to promote patient safety.” Id.
Section 2102 of the MMA, relating to insurers, provides: “Nothing in
this act shall be construed to require an insurer or a health plan, whether paid for by
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Commonwealth funds or private funds, to provide coverage for medical marijuana.”
35 P.S. § 10231.2102. The WC Appeal Board (Board) correctly concluded in this
case that the plain language of Section 2102 does not require coverage for medical
marijuana prescribed to a claimant to treat a work injury.
The majority reasons that although the MMA does not itself mandate
insurance reimbursement for the costs of medical marijuana, it does not preclude
reimbursement that is otherwise required by the WC Act.2 However, prior to the
enactment of the MMA, there was no legal medical marijuana in Pennsylvania, and
therefore, no reimbursement was required for it under the WC Act. Cf. Wright’s
Case, 156 N.E.3d at 171 (explaining that before Massachusetts enacted its medical
marijuana law, “marijuana was illegal under both Massachusetts and [f]ederal law
and was not a reasonable medical expense reimbursable” under a WC statute
requiring an employer to pay for a claimant’s reasonable and necessary medical
expenses). The MMA legalized medical marijuana for the first time and in a limited
manner; in doing so, it made clear that it was not to be construed to require insurance
coverage of medical marijuana. 35 P.S. § 10231.2102. This makes sense, inasmuch
as medical marijuana has not yet been approved by the FDA as safe and effective
for use in medical treatment, and its use is not legal under federal law.3 In any event,
2
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2701-2710.
3
In Wright’s Case, the Massachusetts Supreme Court concluded that a provision in that
state’s medical marijuana law providing that insurers could not be required to reimburse for the
costs of medical marijuana was “controlling and not overridden by the general language in the
[WC] laws requiring [WC] insurers to reimburse for reasonable medical expenses.” 156 N.E.3d
at 165. That court observed:
It is one thing for a [s]tate statute to authorize those who want to use
medical marijuana, or provide a patient with a written certification
for medical marijuana, to do so and assume the potential risk of
[f]ederal prosecution; it is quite another for it to require unwilling
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the legislature, not the courts, must effect any change in the MMA’s stated policy
and the balance struck regarding insurance coverage. Therefore, I believe this Court
is constrained to agree with the Board that the MMA cannot be read to mandate
reimbursement for prescribed medical marijuana provided to WC claimants.
II. Current State of Federal Law on Marijuana
Section 2103 of the MMA specifically provides that nothing in the
MMA requires an employer to commit any act that would violate federal law. See
35 P.S. § 10231.2103. The majority reasons that reimbursement of medical
marijuana costs does not violate federal law, as reimbursing for medical marijuana
does not require the carrier to participate in any activity deemed illegal under the
federal Controlled Substances Act (CSA).4
This Court need not reach this issue because, as discussed above, the
MMA expressly does not require insurance reimbursement of medical marijuana
costs. In any event, however, I believe the majority’s reasoning is in error.
It is true that the Controlled Substances Act does not expressly forbid
reimbursement for prescribed medical marijuana. The statute provides, in pertinent
part, that “ it shall be unlawful for any person knowingly or intentionally — (1) to
third parties to pay for such use and risk such prosecution. The
drafters of the medical marijuana law recognized and respected this
distinction.
Id. at 166. See also id. at 173 (stating that “[i]t is one thing to voluntarily assume a risk of [f]ederal
prosecution; it is another to involuntarily have such a risk imposed upon you”); Bourgoin v. Twin
Rivers Paper Co., 187 A.3d 10, 21-22 (Me. 2018) (suggesting that “the magnitude of the risk of
criminal prosecution is immaterial . . . . Prosecuted or not, the fact remains that [an insurer] would
be forced to commit a federal crime if it complied with the [reimbursement] directive of the [WC]
[b]oard.”).
4
21 U.S.C. §§ 801-904.
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manufacture, distribute, or dispense, or possess with intent to manufacture,
distribute, or dispense, a controlled substance . . . .” 21 U.S.C. § 841(a)(1).
Therefore, it appears an insurer reimbursing for medical marijuana costs under state
law could be subject to federal prosecution only on a secondary basis as either an
aider/abettor or an accessory after the fact, and the feasibility of such prosecution is
questionable. Compare Appeal of Panaggio (N.H. Comp. Appeals Bd.), 260 A.3d
825, 835 (N.H. 2021) (holding that a WC insurer, “if ordered to reimburse [a
claimant’s] purchase of medical marijuana, would not be guilty of aiding and
abetting [the claimant’s] violation of the CSA because the insurer would not be an
active participant with the mens rea required”), with Bourgoin v. Twin Rivers Paper
Co., 187 A.3d 10, 19 (Me. 2018) (holding that a WC insurer “would be aiding and
abetting [the claimant]—in his purchase, possession, and use of marijuana—by
acting with knowledge that it was subsidizing [his] purchase of marijuana”).
However, the majority’s analysis fails to recognize that, unlike the
insurer, the provider necessarily distributes or dispenses medical marijuana. Thus,
the provider necessarily violates federal criminal law by doing so. See id.
Case law is sparse on this issue, but in other contexts, this Court has
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. For example, in Boleratz v. Workers’ Compensation Appeal
Board (Airgas, Inc.), 932 A.2d 1014, 1019 (Pa. Cmwlth. 2007), this Court concluded
that a massage therapist could not obtain reimbursement for treatment provided
pursuant to a prescription by the claimant’s doctor, because the massage therapist
was not licensed by the Commonwealth to provide therapeutic massage. Notably,
this was true even though the massage therapist was nationally certified and
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Pennsylvania at that time had no licensure provision for therapeutic massage. See
also Taylor v. Workers’ Comp. Appeal Bd. (Bethlehem Area Sch. Dist.), 898 A.2d
51 (Pa. Cmwlth. 2006) (vocational expert’s lack of professional licensure by the
Commonwealth meant that employer did not have to pay his bills, despite the fact
that claimant’s physician wrote a prescription for vocational expert services).
Here, by analogy, I believe that, even when medical marijuana is
approved by a claimant’s treating doctor, it is not subject to reimbursement. As
discussed above, 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.5 See Boleratz; Taylor.
III. Conclusion
Based on the foregoing discussion, I do not believe the MMA can be
read as requiring a WC insurer to pay the costs of medical marijuana. Although it
does not expressly forbid requiring such reimbursement under a separate statute such
as the WC Act, the MMA effects no change in the preexisting reimbursement
requirements, because it expressly cannot be read to create a reimbursement
requirement where, as here, one did not exist before.
Further, although federal law does not directly preclude requiring a WC
insurance carrier to pay for prescribed medical marijuana, dispensing medical
5
To the extent that illegality of requiring reimbursement was not asserted by way of a
utilization review, I note that a defense of illegality is not waived by delay in asserting it. See Am.
Ass’n of Meat Processors v. Cas. Reciprocal Exch., 588 A.2d 491, 495 (Pa. 1991) (finding no
waiver where illegality was asserted “under a statute enacted in aid of significant public policies
identified by the Pennsylvania legislature”).
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marijuana remains illegal under federal law. Because a provider dispensing medical
marijuana is violating federal criminal law, such treatment cannot be deemed
reasonable and necessary under the WC Act as a matter of law. Therefore, unless
and until Congress amends the CSA to decriminalize medical marijuana at the
federal level, I believe this Court is constrained to concluded that a provider may not
obtain reimbursement from a WC insurer for medical marijuana dispensed to a
workers’ compensation claimant.
For these reasons, I respectfully dissent.6
__________________________________
CHRISTINE FIZZANO CANNON, Judge
Judge McCullough joins in this Dissenting Opinion.
6
I note that my analysis here is similar to that in my concurring and dissenting opinion in
Fegley v. Firestone Tire & Rubber (Workers’ Compensation Appeal Board) (Pa. Cmwlth., No.
680 C.D. 2021, filed March 17, 2023).
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