Since Vicodin’s and Percocet’s introductions in the 1970s, and notably since OxyContin’s introduction in the late 1990s, doctors have prescribed potent opioids to injury victims, including injured workers, so they could manage their chronic pain. But as we’ve seen in recent years—many of us firsthand—opioids can be highly addictive and have nasty side effects, which together impose significant costs on society and impose trauma on both the people who become addicted to them and their loved ones.
There has been a growing chorus among medical professionals that marijuana is a safer alternative to opioids for chronic pain management. In response, many states have passed laws allowing the use of marijuana for medical purposes. After Pennsylvania adopted its Medical Marijuana Act (MMA) in 2016, some doctors wanted to move patients suffering from chronic pain from opioids to marijuana.
That created an issue for injured workers whose pain management treatment costs are covered by their workers’ compensation benefits. Employers and workers’ compensation insurers, wary of marijuana’s continued illegality at the federal level, balked at reimbursing medical marijuana costs for employees. And without binding legal authority requiring them to do so, they weren’t exactly in a rush to change course.
That binding legal authority, however, recently arrived in the form of the Pennsylvania Commonwealth Court’s ruling in Fegley v. Firestone Tire & Rubber, No. 680 C.D. 2021. In Fegley, the court ruled that while the Pennsylvania Workers’ Compensation Act (WCA) does not require insurers to cover injured workers’ medical marijuana costs when insurers are billed directly from a dispensary, it does require insurers to reimburse workers’ out-of-pocket medical marijuana costs that are reasonable, necessary, and related to their work injuries.
In doing so, the Commonwealth Court opened a new world of treatment options for injured workers in the state that could also lessen or eliminate future societal costs levied by continued widespread opioid use and abuse.
A 2022 workers’ compensation case suggested reimbursement for medical marijuana was on the horizon for Pennsylvania’s injured workers
The seeds for the Fegley decision were planted by many earlier cases, including the February 2022 decision by Workers’ Compensation Judge Timothy Bulman in Pignuola v. Twelfth Street Hotel Associates LP. The claimant, Derek Pignuola, suffered a work injury that included disabling degenerative disc disease at multiple levels of the spine, failed back syndrome, and other conditions, which resulted in Mr. Pignuola being awarded Temporary Total Disability benefits. Following a second cervical spinal surgery, Mr. Pignuola received a pain pump to administer Dilaudid, which he took with other pain, nerve, allergy, and nausea medications. Mr. Pignuola claimed that the combined effects of these drugs gave him “severe brain fog,” so he transitioned his pain management to medical marijuana and sought to have his employer reimburse his out-of-pocket costs.
Judge Bulman credited Pignuola’s and his medical expert’s testimony concerning the salutary benefits Pignuola experienced switching from opioids to medical marijuana for pain management. Judge Bulman also found “tremendous potential advantages for the injured workers of the Commonwealth” to switching from opioids to marijuana for pain management care, and that such a transition would significantly reduce the costs to employers and insurers, resulting in “a very rare instance of a ‘win win’ outcome for the stakeholders in the Pennsylvania workers’ compensation system.”
However, Judge Bulman determined his hands were tied by existing law, ruling that the employer/insurer did not violate the WCA by denying Mr. Pignuola’s reimbursement request because section 2102 of the MMA states that “[n]othing in this act 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.”
In Fegley, the Commonwealth Court opens the door to medical marijuana reimbursement
Fegley was an appeal from the Workers’ Compensation Appeal Board, which affirmed the denial of claimant Paul Sheetz’s efforts to obtain coverage for medical marijuana costs. (Teresa Fegley, Executrix of the Estate of Paul Sheetz, was substituted as the petitioner after Mr. Sheetz’s death). Mr. Sheetz suffered a work injury in 1977 and underwent medical treatment, including two back surgeries. He was prescribed opioids and narcotics to help manage severe pain in his back and legs.
In 2019, Mr. Sheetz’s doctor recommended he switch from opioids to medical marijuana. Like Mr. Pignuola, Mr. Sheetz experienced significant improvement in his quality of life after replacing opioids with marijuana.
After his utilization review found that Mr. Sheetz’s medical marijuana use was reasonable and necessary, he filed a penalty petition alleging his employer violated the WCA by failing to pay for his medical marijuana despite the utilization review determination. A workers’ compensation judge and the WCAB ruled that the employer’s refusal to pay did not violate the WCA.
On appeal to the Commonwealth Court, a split panel reversed the WCAB’s ruling. After noting that the WCA “is remedial in nature and intended to benefit the worker, and, therefore, must be liberally construed to effectuate its humanitarian objectives,” and dismissing two of Ms. Fegley’s technical arguments, the majority opinion, penned by Judge Anne Covey, got to the crux of the issue: the interplay between the WCA and the MMA.
The majority noted that while Section 2012 of the MMA does not require an insurer to include medical marijuana as part of its coverage under its insurance policy, there is no language in the MMA that allows an insurer to not reimburse a claimant for an out-of-pocket medical marijuana treatment that is reasonable and necessary for their work-related injury. The WCA, on the other hand, requires insurers to do exactly that: reimburse claimants for their out-of-pocket payments for reasonable and necessary treatment.
Additionally, the court cited Section 2013 of the MMA, which states that no person “shall be . . . denied any right or privilege . . . solely for lawful use of medical marijuana.” The majority said that if it were to agree with the employer that it need not reimburse Ms. Fegley for out-of-pocket medical marijuana expenses, the court would be removing these express protections from the MMA and the WCA.
Looking to the Pennsylvania General Assembly’s intention in enacting the MMA, the majority held 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.” To interpret the MMA to prohibit out-of-pocket reimbursement of medical marijuana treatment, the court said, “would also undermine the General Assembly’s express intent to provide Commonwealth citizens access to medical marijuana which balances the need of patients to have access to the latest treatments with the need to promote patient safety.”
Holding that insurance coverage is “different and distinct from reimbursement,” the majority ruled that “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.”
In a concurring/dissenting opinion, Judge Christine Fizzano Cannon, joined by Judge Patricia McCullough, noted the legal ambiguity of medical marijuana caused by conflicting state and federal laws but disagreed with the majority that “coverage,” as used in the MMA, was not the same as “reimbursement.” Judge Fizzano Cannon noted that “reimbursement” was merely the repayment of claims for which an insurer provided “coverage.” Thus, the MMA did not require reimbursement to injured workers for their medical marijuana costs. Judge Fizzano Cannon also reasoned that because a state medical marijuana dispensary violates federal criminal law, the use of medical marijuana could not be deemed reasonable and necessary treatment under the WCA.
A decision that could change the lives of millions of Pennsylvanians
Fegley gives injured workers in Pennsylvania a realistic alternative to long-term opioid use to manage chronic pain from their work-related injuries. Knowing they can be reimbursed for their out-of-pocket purchases of medical marijuana, more injured workers may be willing to switch to medical marijuana based on their physicians’ recommendation without fear that the switch will cause them to incur additional expenses that they or their family cannot cover.
(Importantly, those injured workers who choose to pursue medical marijuana as a course of treatment for their pain must still comply with the MMA’s requirements, including having one or more qualifying medical conditions under the statute, obtaining physician approval, and securing a medical marijuana card.)
Though many appellate decisions are deemed watershed decisions by the attorneys writing about them in blogs and articles, few outside of U.S. Supreme Court decisions actually are. But given the havoc that opioids have wreaked on individuals, families, our institutions, and society, Fegley could live up to that billing.
If medical marijuana can provide an addiction-free and harmful-side-effect-free pain management treatment for Pennsylvania’s injured workers that insurers must reimburse workers for, countless addictions could be avoided, countless broken families could remain intact, countless millions in funding to fight opioid addiction could be redeployed, and countless lives could be saved.
Should Fegley lead to an opioid-free future for Pennsylvania and its injured workers, it could go down as one of the truly watershed Commonwealth Court decisions in recent memory.
Ashleigh Q. Gallagher is a workers’ compensation attorney at Pond Lehocky Giordano LLP, the largest workers’ compensation and disability law firm in Pennsylvania, and one of the largest in the United States. She can be reached at agallagher@pondlehocky.com.
Reprinted with permission from the May 23, 2023 edition of The Legal Intelligencer © 2023 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-257-3382 or reprints@alm.com.
