Medical marijuana is in an interesting position currently in the United States. Its use is legal on a state by state basis, but at the same time, it is still considered a schedule 1 controlled substance on the federal level. A schedule 1 controlled substance is considered to have no accepted medical use and a high potential for abuse. Additionally, being charged with schedule 1 controlled substance crimes can lead to severe penalties.
However, despite this federal designation, the drug does have some potential benefits for injured workers. The most important benefit to come from medical marijuana is its ability to relieve pain without the use of addictive opioids. Some states have seen this as a positive enough benefit to begin deciding how medical marijuana fits into their workers’ compensation systems, and Pennsylvania may soon follow suit.
Medical Marijuana and the Workers’ Compensation Act
The Pennsylvania Workers’ Compensation Act states that insurers should pay for treatment that is medically “reasonable and necessary” in regards to workplace injuries. The most commonly covered treatments include hospital and doctor visits, physical therapy, and prescription medications. However, not all treatments are considered reasonable and necessary. Experimental treatments are not covered, and the employer’s insurance company retains the right to challenge any treatments that it does not consider to be reasonable and necessary.
Excessive physical therapy can be found to be unreasonable or unnecessary, and the use of medications (usually opioid medications) is often challenged as well. Currently, it is not clear whether medical marijuana is covered under the Act. There is a significant question about whether a substance that is illegal under Federal Law, but legal under State law can be considered a reasonable and necessary treatment.
Pushback to Medical Marijuana Coverage Under Workers’ Compensation
It should come as little surprise that insurers and employers alike are pushing back against the idea that they may have to pay for medical marijuana. In an attempt to avoid paying for this drug, some insurers have pointed to the fact that marijuana is a schedule 1 controlled substance. After all, how can the state expect insurers to pay for a drug that is illegal on the federal level?
However, insurers may voluntarily choose to cover the treatment, especially if they can be convinced it is cheaper and/or more effective than the alternatives.
Why the Medical Marijuana Act Makes Coverage Unlikely
Pennsylvania’s Medical Marijuana Act includes a section that could provide the immunity from payments that insurers seek. The Act states that it “shall not 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.” 2015. PA. SB 3, Section 2102.
In Pennsylvania, workers’ compensation providers fall under the broad category of “insurers.” This section could make it difficult, if not impossible, to force coverage for this treatment under the Workers’ Compensation Act.
Medical marijuana could be considered a medically reasonable and necessary treatment for some injured workers, especially those who cannot or do not want to take opioids for pain relief. However, there is no mandate for coverage at present under Pennsylvania’s Workers’ Compensation Act.
There are a few lawsuits moving through the court system right now which will hopefully result in clear guidance for how medical marijuana is treated under the Workers’ Compensation Act. But for now, it would seem that medical marijuana will remain one treatment that insurance companies are not required to pay for.
My name is Geoffrey Hillsberg, and I have been solely practicing Workers’ Compensation Law in the State of Pennsylvania since 1995. If you have suffered an injury while working, contact my law office today. I will put my decades of experience to work fighting for your right to compensation for your injuries.
The advice offered above is general in nature and may not be applicable to every case. Consultation with an attorney is highly recommended. Reliance on this advice does not represent the formation of an attorney-client relationship in the absence of a fee agreement with Mr. Hillsberg.