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Pennsylvania High Court to Decide If Workers’ Compensation Covers CBD Oil

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A veteran Pennsylvania workers’ compensation attorney will soon have a chance to argue before the Pennsylvania Supreme Court that his own use of cannabinoid oil (CBD oil) is covered by workers’ compensation.

It’s an argument he won last November with a ruling by a Commonwealth Court in his favor but the insurer appealed the matter and the Supreme Court on April 30 agreed to hear the case.

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The attorney, Mark R. Schmidt, has been battling his employer, the Schmidt, Kirifides and Rassias law firm, and the Workers’ Compensation Board, over their rejection of his request for reimbursement of the costs for CBD oil that he uses for a work-related back injury.

In Pennsylvania, Workers’ Compensation Now Pays for CBD Oil Treatment

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After a workers’ compensation judge in the Springfield district ruled in Schmidt’s favor, the Workers’ Compensation Board reversed that judge’s ruling, prompting Schmidt to appeal to Commonwealth Court. The court sided with Schmidt, finding that CBD oil qualifies under the state’s workers’ compensation law as a “medicine” and a “supply” for reimbursement. The state Supreme Court on April 30 agreed to hear the appeal by the employer/insurer of that court ruling.

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Workers’ Comp Attorney’s Journey
Attorney Mark R. Schmidt, who has practiced in the field of workers’ compensation law for more than 30 years, began his career at PMA Insurance Co. defending employers against work injury claims. In 1994, he began his current career representing injured workers against insurance companies.
Schmidt sustained a work injury in April 2017 when he, in a squatting posture, loaded files into a trial bag for work, tipped the trial bag onto its wheels, had back pain, and fell over on his side. Specifically, he sustained an aggravation of a preexisting degenerative disc disease. In October 2018, his claim for his lower back injury was approved as work-related and he was awarded “all medical expenses incurred … that are reasonable and necessary.” His treatment has been limited to pain management, for which he is prescribed Oxycodone, OxyContin, Soma, Ativan, Zoloft, and CBD oil.
He has been taking OxyContin, once in the morning and once at night since the work injury occurred. In addition, he takes Oxycodone, as needed, approximately two to four times a day for breakthrough pain. Because extensive driving and sitting in courtroom chairs aggravated his pain, his physician suggested an increase in his medication dosages. Schmidt opposed that suggestion because it would affect his ability to think, focus, and represent clients. After seeking different alternatives, such as aqua therapy, injections, and surgery, his physician prescribed CBD oil in lieu of increasing medication dosages.
Schmidt preferred not to undergo surgery because he knew the risks and he wanted to avoid being out of work for a prolonged amount of time for recovery. Rather, he sought to exhaust all other options before resorting to surgery. He did have two injections that his doctor administered; however, each injection only provided pain relief for 7 to 10 days. Thereafter, his doctor prescribed CBD oil to avoid increasing his OxyContin and Oxycodone dosages and forestall his need to undergo surgery. The CBD oil treatment has proven to be successful.
Schmidt supplied the CBD oil prescription and receipts to his employer, who refused to reimburse his out-of-pocket CBD oil expenses on the basis that CBD oil is not a pharmaceutical drug. Schmidt alleges that his employer is violating the workers’ compensation act by failing to reimburse him for out-of-pocket costs for medical treatment.

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Medical research has been limited but some studies indicate CBD may help with insomnia, chronic pain, inflammation due to arthritis, and anxiety. It does not produce a “high” effect in users.

Schmidt’s doctor prescribed CBD along with Oxycodone and other treatments and medications for his back injury. The CBD eased his pain, obviated the need to increase his dosage of painkillers, and helped him avoid back surgery. Schmidt did not actually use his doctor’s prescription for CBD; instead he bought his oral and topical CBD over the counter at a natural therapy store.

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Claims Denied

His employer has refused to reimburse for the CBD, arguing that buying unregulated CBD oil at an unlicensed health food store did not qualify as medical treatment or “medicines and supplies” as the law requires. The firm also maintains that reimbursing for CBD oil would violate Federal Drug Administration (FDA) policy.

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The workers’ compensation judge ruled that his employer was liable to pay for Schmidt’s CBD oil because it qualified as a medical supply under the statute and was part of his reasonable and necessary medical treatment.

Workers’ Compensation Must Reimburse for Medical Marijuana Costs in Pennsylvania

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But the WC Board reversed the workers’ compensation judge, concluding that CBD oil cannot be a reasonable and necessary medical treatment because it did not come from a medical provider and an insurer or employer cannot be required to pay for it since the FDA has warned firms marketing CBD products about violating federal law.

The WC Board also theorized that adoption of CBD oil “would open the floodgates” for employees to present “personal receipts for homeopathic remedies” for reimbursement.

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Over the Counter

Schmidt appealed that WC Board decision to the court. Schmidt argued that the WC Board went beyond its authority by disregarding the judge’s findings of fact. He said the board also failed to answer whether CBD oil is a medicine or supply under the law.

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Schmidt contends that nothing in the act restricts compensable medicine and supplies to items which can only be obtained through a pharmacist, nor is there any statutory language prohibiting reimbursement for medicines and supplies obtained over the counter.

In its 5-2 opinion last November written by Judge Anne E. Covey, the Commonwealth Court quoted the workers’ compensation judge that since the workers’ compensation act is “remedial in nature and intended to benefit the worker,” it must be “liberally construed to effectuate its humanitarian objectives.” Thus it liberally construed “medicine” and “supply” to include CBD oil.

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As for the concern over the FDA warning, the court commented that FDA approval of a treatment is not a requirement under the state statute and the fact that some CBD marketing may contain unsubstantiated therapeutic claims or otherwise violate federal law does not make an employee’s use or employer’s reimbursement for CBD oil illegal.

The Pennsylvania Supreme Court said it would address several key issues on appeal: whether the terms “medical services” and “medicines and supplies” in the Workers’ Compensation Act include CBD oil, specifically, as well as dietary supplements, generally, and products that may be purchased without a prescription from a healthcare provider; whether cost containment regulations apply to CBD oil; whether the law requires employers/insurers to reimburse claimants, directly, for out-of-pocket expenses for “medical services” and “medicines and supplies,” and if so, if claimants are obligated to submit supporting documentation.

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While CBD oil’s status is in question, medical marijuana costs do fall under the state’s workers’ compensation law. In March 2023, the same Commonwealth Court ruled in an opinion penned by the same judge that the Medical Marijuana Act (MMA) does not alter the mandate under the Workers’ Compensation Act that employers reimburse workers for reasonable and necessary out-of- pocket costs of medical treatment. Medical marijuana may only be dispensed, however, to patients who receive certifications.

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