Although §2102 of the Medical Marijuana Act did not require direct coverage for an injured worker’s medical marijuana, it was not prohibited; therefore, the carrier was required to reimburse the out-of-pocket costs of an injured worker’s medical cannabis.

In this case, the claimant underwent two low back surgeries following a 2006 work injury. He gradually weaned himself off of all opioid medications, but not without consequences, in the form of significant withdrawal symptoms. The claimant began using medical marijuana during the weaning process and said it was more effective than any medication he had taken for his pain. 

Litigation was initiated by the claimant, who filed a Petition to Review Medical Treatment and sought a court order for reimbursement of his medical marijuana. Although the Workers’ Compensation Judge found the medical marijuana to be related to the injury, the Judge also concluded that the claimant failed to show reimbursement was required under Section 2102 of the Medical Marijuana Act (MMA), and the Appeal Board affirmed. 

At the Commonwealth Court level, the claimant took the position that, although the MMA did not require coverage, it did not prohibit it either. He also maintained that payment for medical marijuana for treatment of a work injury would not cause the employer to violate the Federal Drug Act, or be at risk for doing so. 

The Commonwealth Court held that reimbursement of a claimant’s out-of-pocket expenses for medical marijuana usage to treat a work injury was required by the Act. As in Fegley, the court rejected the position taken by the employer, which was that federal law and Section 2102 of the MMA prevented them from paying for an injured workers’ medical marijuana. The court held that, because Section 2102 of the MMA does not prohibit insurers from covering medical marijuana, the Act mandates employers reimburse claimants for out-of-pocket costs for medical treatment found to be reasonable, necessary and related to the work injury. The court also cited Section 2103 of the MMA, which states: “Nothing in the MMA shall require an employer to commit any act that would put the employer and any person acting on its behalf in violation of Federal law.”

_{What’s Hot in Workers’ Comp, Vol. 27, No. 4, April 2023, is prepared by Marshall Dennehey to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. We would be pleased to provide such legal assistance as you require on these and other subjects when called upon. ATTORNEY ADVERTISING pursuant to New York RPC 7.1 Copyright © 2023 Marshall Dennehey, all rights reserved. No part of this publication may be reprinted without the express written permission of our firm. For reprints or inquiries, or if you wish to be removed from this mailing list, contact tamontemuro@mdwcg.com.}