In a landmark Opinion rendered on March 17, 2023, the Commonwealth Court of Pennsylvania, in T.L. Fegley vs. WCAB, held that a claimant can seek reimbursement for out-of-pocket expenses relating to medical marijuana that were reasonable, necessary, and related to the work injury.
The Case: Reimbursement for Medical Marijuana Expenses for Work Injuries
The claimant suffered a serious work injury in 1977. He was prescribed opiates and narcotics for pain relief and used them for decades.
In 2019, his doctor prescribed medical marijuana to reduce the need for opiates and narcotics. Medical marijuana helped him tremendously. In September 2019, a Utilization Review found medical marijuana to be reasonable and necessary.
In October 2019, the Claimant filed a Petition for Penalties alleging that the Employer violated the Act by failing to pay for his medical marijuana. The Workers’ Compensation Judge denied the Penalty Petition. The WCAB affirmed, and an appeal was taken to the Commonwealth Court of Pennsylvania.
The Question: Is Medical Marijuana Legal For Medical Conditions?
The Court first reminded us that the Act Pennsylvania Workers’ Compensation Act is remedial in nature and has a humanitarian objective. The Court then turned its attention to the Federal Controlled Substance Act, noting that it’s unlawful to knowingly distribute, dispense, or manufacture a controlled substance. However, the Court noted that the FCSA leaves room for a state to enact its own law where the two can stand together consistently.
The Court then stated the Medical Marijuana Act contains language from the General Assembly, in part:
- Scientific evidence suggests that medical marijuana is one potential therapy that may mitigate suffering in some patients and also enhance the quality of life.
- 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.
- It is the intent of the General Assembly to:
- 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.
- Provide a safe and effective method of delivery of medical marijuana to patients.
Essentially, the Court, here, was reminding us that medical marijuana is legal in Pennsylvania for serious medical conditions.
The Verdict: Insurers Must Reimburse The Claimant For Medical Marijuana Expenses Incurred
Having summarized the relevant statutes at play, the Court turned to analyze who an “insurer” is under the Medical Marijuana Act. It concluded because Work Comp carriers are insurers under the Insurance Law, “this Court cannot hold that they are not insurers for purposes of the MMA.”
Then it addressed the Claimant’s argument that the MMA only prohibits insurers be compelled to provide coverage for medical marijuana, not reimbursement for out-of-pocket expenses already incurred.
This is really the key point in this case: the claimant was not asking for coverage, but instead, reimbursement.
This was a clever argument that the Court agreed with. If the General Assembly wished that insurers be prohibited from reimbursing medical marijuana costs, it would have said so in the statute. It didn’t.
Indeed, as the Court said, “Under the doctrine of expressio unius est exclusio alterius, the inclusion of a specific matter in a statute implies the exclusion of other matters. Similarly, [the Pennsylvania Supreme] Court has long recognized that as a matter of statutory interpretation, although one is admonished to listen attentively to what a statute says[,] one must also listen attentively to what it does not say.”
Finally, the Employer argued that reimbursement of medical marijuana would cause them to violate Federal Law. The Court disagreed here, citing the fact that the Employer would not be “knowingly or intentionally–[] to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance[.]” under the Federal Drug Act.
This Case Has Paved The Way for More Doctors To Prescribe Medical Marijuana
This well-written, well-reasoned, precedential Opinion has now paved the way for more injured workers to pursue medical marijuana for their chronic, intractable pain. If you have any questions, please let us know!,
Here is a link to the written Opinion in Teresa L. Fegley, as Executrix of the Estate of Paul Sheetz vs. Firestone Tire and Rubber (WCAB).
Contact a Workers’ Compensation Lawyer Experienced with Medical Marijuana
We are here to help you, 7 days a week. Contact Cardamone Law, LLC for a free consult and analysis of your case at (215) 206-9068 or email Michael@CardamoneLaw.com We have offices in Eastern and Central PA or will come visit you, or we’re happy to do a Zoom call of course. Call the Pennsylvania Work Comp Medical Marijuana Lawyers at (215) 206-9068
Philadelphia Attorney Cardamone has been selected to appear in the Top 50 Attorneys of 2019 Magazine. Previously, he was featured in the Top 100, and now the publication is producing a Top 50 List.
Here is information from the Top 100 Magazine website as to how the process works:
Top 100 Magazine selections do not pay to win or to be considered for the magazine. Individuals appearing in four, two, full, or half page editorials, however, may have paid a fee for additional exposure. Top 100 selects candidates utilizing proprietary software, which employs an algorithm to search a variety of online resources for industry-specific terms and key words. These resources include social media, blog posts, peer reviews, and Google indices. Once the software has compiled a preliminary list of qualified candidates, our R&D department manually analyzes the results in order to make their final selections.
For those selections who are financial advisors or wealth managers, certain additional criteria must be met. They include: 1. Registered with the SEC as a registered investment adviser or a registered investment adviser representative; 2. Not more than 1 filed complaint and never been convicted of a felony. Those selected for the magazine may purchase additional profile ad space or promotional products. Their selection is not indicative of the wealth manager’s future performance or an endorsement by this publication. Working with a Top 100 Magazine advisor or wealth manager is no guarantee as to future investment success, nor is there any guarantee that the selected wealth managers will be awarded this accomplishment in the future.
We also receive nominations through our site and other channels, such as LinkedIn. We utilize the same criteria and research methods to thoroughly evaluate the proposed candidate before we determine if the nominee qualifies.
HOW MANY PEOPLE WILL SEE ME IN THE MAGAZINE?
Our member and subscriber base currently exceeds five hundred thousand individuals/enterprises, based on combined digital, print, and social media platforms. Recipients of the magazine include industry leaders, academic institutions, Fortune 500 companies, private and public businesses, and social media influencers, among others.
WILL I BE RANKED ON GOOGLE AND OTHER SEARCH ENGINES?
Yes. Search engines find and list social media posts and content from our website. Everyone who is published is announced on all of our social media platforms, which includes LinkedIn, Facebook, and Instagram. When possible, we tag you in the posts so that your followers can share and comment. This leads to more interaction, which generally improves your ranking.
Your online exposure can be further increased through premium services such as professionally written press releases, a personalized page on our website, or a customized social media campaign. Our efforts often result in a first page ranking, showing our endorsement of you as a leader in your industry.
We are thankful for the recognition and remind injured workers that we are very unique- our sole practice area is Pennsylvania Workers’ Compensation for injured workers. If you may need our PA workers’ compensation attorneys, for a quick consultation 24/7/, call (215) 206-9068 or email at: michael@cardamonelaw.com
The Top 100 profile can be seen here.
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Many Pennsylvania Workers’ Compensation cases will come down to credibility determinations regarding the medical experts. The Workers’ Compensation Judge, when issuing his or her Decision, must credit one physician over the other by concluding that one (or more) is more credible than the other. For example, in a typical case, an injured worker presents the testimony or report of his/her treating doctor, and the insurer/employer presents the testimony or report (if under 52 weeks of disability) of the IME doctor, or a panel physician. The WCJ will conclude that one is more credible than the other- and that is often the deciding factor in a Decision.
What are the keys to presenting credible medical evidence on behalf of an injured worker?
First, you want to make sure that your expert is Board Certified! Most physicians will be Board Certified- but you want to ask for the CV of the expert, ahead of a deposition or issuance of a report, to be sure.
Second, if you have a choice, try to use the expert with the most expertise on the subject matter at hand. If you are dealing with a head injury case, and have the option of using a Neurologist vs a Primary Care Physician, that can be a real boost to your cause. You can rest assured that the insurer is likely to have an expert with excellent credentials.
Third, make sure you send all transcripts and medical records (indeed, any relevant evidence) to the expert, ahead of time, so that he/she can review the record prior to your pre- meet, which is often only 15 to 30 minutes. If you do not make it clear that you need the records reviewed ahead of time, many physicians will try to do a “cram session” in the pre meet during which you can only cover so much material.
Fourth, make it easy for your expert to review key parts of the case- use tabs or a highlighter to underscore the mechanism of injury, any previous injuries, etc.
Fifth, make sure your expert understands the complete, relevant pre- injury treatment. One way to lose a case is to have your expert not understand the underlying facts or previous injury history- which can lead a WCJ to find their testimony to be “incompetent”.
Sixth, make sure your expert can testify within reasonable medical certainty. If the expert is equivocal, you will lose. The standard isn’t 100% certainty- just reasonable medical certainty. But they want to avoid terms such as “may be related” or “could be related”. The WCJ will review the testimony as a whole, not just snippets, but this is a critical element.
Seventh, recommend to your expert to concede things that need to be conceded. If a prior MRI shows a herniation, don’t try to argue that it wasn’t. No case will have every single element line up favorably. It’s the totality that matters.
Finally, try to emphasize positive, objective findings- such as MRI or EMG findings that correlate with clinical findings. Insurance company doctors love to paint things as “subjective”- they will repeat that pain is subjective sometimes until they are blue in the face. But if you can show objective findings- i.e., spasm, on the exams, you want to highlight these things. Or, if the complaints are indeed subjective, but very consistent, then stress the consistency.
This is just a summary of some important points when presenting credible medical evidence in a PA Work Comp case. It’s not an exhaustive list.
For more information, call or email a PA Workers’ Comp Lawyer 7 days a week.
Comp? Cardamone!
Cardamone Law, LLC is one of the leading Workers Compensation Law Firm in PA. Our skilled attorneys specialize in PA Workers Compensation Law and offer legal advice and consultation to injured workers. Over the years, we have received several recognitions, including:
- Recognized as one of The Best Attorneys in America
- Awarded Super Lawyers Top 100 in PA status
- Rated Superb by Avvo in the PA Work Comp laws category, rated 10/10
- Granted America’s Top 100 Attorneys award
- Listed as Top American Lawyer in Workers compensation cases
Here’s a short video outlining the key achievements and services of Cardamone Law, LLC:
Our experienced workers’ comp attorneys understand the ins and outs of Pennsylvania workers compensation law and help injured workers’ in Pennsylvania through advice, legal consultation, vocational assessment prep, and more. Visit our Cardamone Law website or feel free to reach out to us with your work comp-related questions.
I discussed what Notice of Ability To Return To Work means in a PA Work Comp case in a previous post in January 2013. I re-post it below as I am getting more and more questions from clients and prospective clients about a Notice of Ability To Return To Work.
The Notice of Ability To Return To Work According To Pennsylvania Workers’ Compensation Act
I get many phone calls from clients and prospective clients about the peculiar document, called a Notice of Ability To Return To Work. This is a form, LIBC 757, sent to an injured worker pursuant to Section 306(b) (3) of the Pennsylvania Workers’ Compensation Act.
Image Source: Pexels/Andrea Piacquadio
The Contents of Notice of Ability To Return To Work
That provision states, “If the insurer receives medical evidence that the claimant is able to return to work in any capacity, then the insurer must provide prompt written notice, on a form prescribed by the department, to the claimant, which states all of the following:
1) The nature of the employee’s physical condition or change of condition.
2) That the employee has an obligation to look for available employment.
3) That proof of available employment opportunities may jeopardize the employee’s right to receipt of ongoing benefits.
4) That the employee has the right to consult with an attorney in order to obtain evidence to challenge the insurer’s contentions. (emphasis added)
The Notice of Ability To Return To Work Form is often misinterpreted as an actual offer by the time of injury Employer for the Claimant to return to work. This is not true- unless the form is actually accompanied by a job offer letter. The Notice of Ability To Return To Work in a PA work comp case is simply what is says- it’s a notice. Be careful to make sure a job offer isn’t enclosed with the Notice.
The Purpose of the Notice
What is the purpose of the Notice sent to injured worker? The Commonwealth Court of Pennsylvania, in Burrell v. Workers’ Compensation Appeal Board (Philadelphia Gas Works), 849 A.2d 1282, held that “the purpose of the notice requirement is to require the employer to share new medical information about a claimant’s physical capacity to work and its possible impact on existing benefits”. The Court in Burrell also noted that formal notice is not required where a claimant is actually performing the work.
Image Source: Pexels/Anna Nekrashevich
What if there is a conflict between IME Doctor and Treating Physician?
Another source of confusion regarding the Notice of Ability To Return To Work is that the Notice often comes on the heels of an independent medical exam- that is, an exam by a doctor which the work comp insurer chooses. The IME doctors frequently claim that an injured worker is either fully recovered from her work injuries or that the injured worker has the ability to work within certain restrictions. This opinion often conflicts with the injured worker’s own doctor. The treating physician may believe the injured worker cannot work at all, or that she needs more restrictions than the IME doctor imposed.
Therefore, the injured employee may be confused about what restrictions the Employer will utilize is making a possible job offer- the IME doctor’s restrictions or her own doctor’s restrictions. It is strongly recommended that the injured workers call an experienced Pennsylvania Work Injury Lawyer to discuss this situation. The next move taken by the injured worker can make or break a case.
What If The Insurer Fails To Send The Notice Of Ability To Return To Work In A Work Comp Case?
The failure of an insurer to send the Pennsylvania Work Comp Notice of Ability To Return To Work will sometimes, by itself, defeat an attempt by the employer/insurer to reduce benefits. For an employer to successfully reduce benefits, it must send out this Notice promptly. There are some exceptions, however. For example, in Smith v. Worker’s Compensation Appeal Board (Caring Companions, Inc.), No. 417 C.D. 2012, the Commonwealth Court found that the Notice of Ability To Return To Work was not required because Claimant herself had provided her employer with a copy of her doctor’s restrictions. The purpose of Section 306 (b)(3) had already been achieved.
What To Do If You Receive A Notice Of Ability To Return To Work?
If you get a Notice of Ability To Return To Work, call Pennsylvania Workers’ Compensation Certified Attorney and we will discuss with you how it affects your case. Our lawyers are available 7 days a week at 215-206-9068 (direct dial) or via email at Michael@CardamoneLaw.com
No. If you are receiving Pennsylvania Work Comp indemnity (ie, wage loss) benefits, they must continue until such time as a Judge enters an Order stopping them. If a Petition to Terminate has been filed, the attorney for the Employer/Insurer will ask for Supersedeas. Supersedeas in Pennsylvania Work Comp cases means that the Employer/Insurer is asking the Judge to immediately stop or reduce your checks based on their evidence. (ie, Independent Medical Exam) However, the Judge will give the injured worker’s attorney an opportunity to counter the request for Supersedeas. The Judge will then issue a Supersedeas Order- normally a few weeks after the first hearing. If the Judge denies Supersedeas, the wage loss checks will continue, less the attorney’s fee. If Supersedeas is granted, the checks will stop or be reduced.
It is absolutely critical to speak with an experienced Pennsylvania Workmans Comp Lawyer if a Petition has been filed to reduce or terminate your benefits. The Pennsylvania Workers’ Compensation Law is complicated and litigating a case can cost up to, or over, $5,000.00. If you do not have an attorney at the first hearing, you will likely hear the Judge strongly advise that you retain one immediately.
If your insurer stops paying your wage loss, simply based on the filing of the Petition to Terminate, but before a Judge’s Order, your lawyer should file a Penalty Petition for the improper stoppage of your checks.
For more information about a Petition to Terminate benefits under PA Work Comp Law, call Attorney Michael Cardamone toll free at 215-206-9068 or email Michael@cardamonelaw.com for a prompt, free consult.
