Reimbursement of Out-of-Pocket Expenses for Prescribed CBD Oil under Workers’ Compensation Act
Schmidt v. Schmidt, Kirifides & Rassias, PC, 305 A.3d 1137 (Pa. Cmwlth. 2023), allocatur granted Apr. 30, 2024, appeal docket 32 MAP 2024
The Pennsylvania Supreme Court will consider whether, under Pennsylvania’s Workers’ Compensation Act (Act), an employer can refuse to reimburse an employee for out-of-pocket expenses for prescribed CBD Oil and the requirements for a Claimant to obtain reimbursement.
Commonwealth Court summarized the relevant law and precedent as follows:
Section 306(f.1)(1)(i) of the Act specifies, in pertinent part, that “[t]he employer shall provide payment … for reasonable surgical and medical services …, including … medicines and supplies, as and when needed.” 77 P.S. § 531(1)(i). Section 306(f.1)(1)(ii) of the Act also declares, in relevant part: “In addition to the above service, the employer shall provide payment for medicines and supplies … in accordance with this section.” 77 P.S. § 531(1)(ii). Section 306(f.1)(5) of the Act, 77 P.S. § 531(5), further provides that once an employer’s liability for a work-related injury is established, “the employer must pay the claimant’s medical bills within 30 days of receiving them, unless the employer disputes the reasonableness and necessity of the treatment.” CVA, Inc., 29 A.3d at 1227 (emphasis added); see also Listino v. Workmen’s Comp. Appeal Bd. (INA Life Ins. Co.), 659 A.2d 45, 47 (Pa. Cmwlth. 1995).
Slip op. at 11-12.
In this case, Mark Schmidt (Claimant), who worked as a workers’ compensation attorney, was awarded workers’ compensation benefits after sustaining a back injury. Commonwealth Court summarized the relevant factual background as follows:
On April 14, 2017, in the course of his employment with Schmidt, Kirifides and Rassias, PC (Employer), Claimant sustained a work injury 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 at the levels of L4-5 and L5-S1 with radiculopathy. On October 17, 2018, WCJ Joseph Stokes (WCJ Stokes) granted a Petition for WC Claim (Claim Petition) for Claimant’s lower back injury and awarded Claimant “all medical expenses incurred by [ ] Claimant that are reasonable and necessary and related to [ ] Claimant’s employment injury ….” Reproduced Record (R.R.) at 59a. Claimant’s work injury treatment has been limited to pain management, for which he is prescribed Oxycodone, OxyContin, Soma, Ativan, Zoloft, and CBD oil.
Claimant has been taking OxyContin, 30 milligrams (mg.), once in the morning and once at night since the work injury occurred. In addition, Claimant takes Oxycodone, as needed, approximately two to four times a day for breakthrough pain. Because extensive driving and sitting in courtroom chairs aggravated Claimant’s pain, William Murphy, D.O., LPT (Dr. Murphy), suggested Claimant increase his medication dosages. Claimant opposed Dr. Murphy’s suggestion because it would affect his ability to think, focus, and represent clients. After seeking different alternatives, such as aqua therapy, injections, and surgery, Dr. Murphy prescribed CBD oil in lieu of increasing Claimant’s medication dosages.
Claimant preferred not to undergo surgery because he knew the risks that some of his clients had faced and he wanted to avoid being out of work for a prolonged amount of time for recovery. Rather, Claimant sought to exhaust all other options before resorting to surgery. Claimant did have two injections that Dr. Purewal administered, one on September 6, 2019, and a second on September 20, 2019; however, each injection only provided pain relief for 7 to 10 days. Thereafter, Dr. Murphy prescribed Claimant CBD oil to avoid increasing Claimant’s OxyContin and Oxycodone dosages, and forestall his need to undergo surgery. Claimant’s CBD oil treatment has proven to be successful.
Slip op. at 2-4. Claimant provided Employer with the CBD oil prescription and receipts for reimbursement, however, Employer refused to reimburse Claimant’s out-of-pocket CBD oil expenses on the basis that CBD oil is not a pharmaceutical drug. Claimant then filed the Penalty Petition, alleging that Employer violated the Workers’ Compensation Act by failing to reimburse him for out-of-pocket costs for medical treatment. The Workers’ Compensation Judge (WCJ) awarded Claimant reimbursement and made the following relevant factual findings, as emphasized by Commonwealth Court:
12. [ ] Claimant’s testimony on November 6, 2019[,] is summarized as follows:
a.) [ ] Claimant had out[-]of[-]pocket costs for CBD or cannabinoid oil after Dr. Murphy’s recommendation of it, as opposed to an increased dose of medication. [ ] Claimant’s treatment options were aqua therapy, CBD oil, injections, and surgery.
b.) CBD oil has no [tetrahydrocannabinol, commonly referred to as] THC[,] in it and thus no harmful side effects.
c.) [ ] Claimant buys CBD oil over the counter and doesn’t go to a pharmacist for it despite Dr. Murphy’s written prescription for it since April 8, 2019. He buys it from a specialty natural remedy store and uses it on [sic] every night for sleep.
d.) [ ] Claimant received 2 injections from Dr. Purewal on September 6 and 20, 2019[,] and they provided relief for about 7 to 10 days. Dr. Purewal recommended a nerve block to [ ] Claimant.
e.) [ ] Claimant didn’t need HCFA (Healthcare Finance Administration) forms for the submission of the bills for the CBD oil to [Employer’s] [WC] insurance carrier.
13. Statements in [ ] Claimant’s affidavit on February 13, 2020[,] are summarized as follows:
a.) [ ] Claimant bought both CBD topical and oil treatments and used each type in accordance with the directions on the packaging materials, specifically with an application of the topical lotion on the skin of his lower back and with the use of the provided dropper for placement of the oil under his tongue.
b.) [ ] Claimant used the CBD topical and oil treatments at different times for measurements of [ ] Claimant’s responses and the oil was more effective than the topical lotion.
c.) [ ] Claimant only purchased the CBD oil after his initial trial.
….
14. Dr. Murphy’s records are summarized as follows:
a.) Dr. Murphy prescribed CBD oil/topical application for [ ] Claimant’s affected area on April 8, 2019. Dr. Murphy recommended the CBD oil for the attempted treatment of [ ] Claimant’s pain and the avoidance of increased doses of opioid analgesic medications and the CBD oil was reasonable, necessary, and related medical treatment for [ ] Claimant’s work injury.
….
g.) Dr. Murphy treated [ ] Claimant on October 21, 2019, when [ ] Claimant was using CBD oil as an adjunct to his pain medication and Dr. Murphy initiated Horizant 600 mg. extended release on 1 occasion per day. [ ] Claimant took the same medicines as those on April 24, 2018, in addition to the use of Lidoderm 5% topical patches with their applications in 1 to 3 sites for 12 hours and then for another 12 hours after a 12[-]hour break.
….
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- Dr. Elia’s statements are summarized as follows:
a.) Dr. Elia is a board[-]certified [ ] orthopedic surgeon, [sic] examined [ ] Claimant on October 2, 2019, and took a history about [ ] Claimant’s work injury and treatment for it and long history of low back issues. Dr. Elia reviewed medical and [WC] records about [ ] Claimant and a transcript of [ ] Claimant’s testimony.
….
k.) [ ] Claimant’s treatment to date has been reasonable and necessary and further treatment in the nature of periodic re-evaluations by Dr. Murphy and recommendations for therapy and medication are needed. [ ] Claimant can work with restrictions.
17. [ ] Claimant is credible on the basis of his demeanor during his testimony at a hearing before [WCJ DiLorenzo]. He’s particularly credible that he uses CBD … oil on [sic] every night for sleep after Dr. Murphy’s recommendation of it because Dr. Murphy substantiated his recommendation of CBD oil with a prescription for it. He’s credible about the prescription of the CBD oil because it avoided an increased dose of medication and forestalled surgery because Dr. Murphy’s records in evidence aren’t indicative of [ ] Claimant’s election for surgery at or about the time of the prescription of the CBD oil or thereafter. He’s credible that CBD oil has no harmful side effects because Dr. Murphy’s records in evidence aren’t indicative of any alleged side effects from [ ] Claimant’s use of it. He’s credible about the lack of any need for HCFA … forms for the submission of the bills for the CBD oil to [Employer’s] [WC] insurance carrier because Dr. Fruncillo established that CBD oil isn’t a drug and is a “dietary supplement.” He’s particularly credible about his submission of the receipts for the CBD oil and [Employer’s] denial of payment of CBD oil because [Employer’s] counsel’s statements substantiated [Employer’s] counsel’s receipts for the CBD oil from [ ] Claimant and [Employer’s] denial of payment for it and because the e[ ]mail from [ ] Claimant established the lack of payment.
18. Dr. Fruncillo is credible and persuasive for the most part because the *1145 statements in his curriculum vitae established his expertise and experience to formulate his opinions with respect to CBD oil. He’s credible and persuasive with respect to CBD oil’s status as a “dietary supplement,” as opposed to an “over–the–counter” drug or drug because the statements on the label substantiated that. He isn’t credible and persuasive that [ ] Claimant’s CBD use could potentially cause adverse medical consequences for [ ] Claimant on the bases of any evidence of [ ] Claimant’s experience of any adverse medical consequences, of the lack of any testimony from [ ] Claimant about adverse medical consequences with his use of CBD oil, and of the lack of any statements in Dr. Murphy’s records about any adverse medical consequences with [ ] Claimant’s use of CBD oil.
19. Dr. Elia is credible and persuasive with the exception of his examination finding about [ ] Claimant’s bending maneuver with [ ] Claimant’s hands to the floor because [ ] Claimant credibly refuted that. Dr[.] Elia is credible and persuasive about [ ] Claimant’s reasonable and necessary treatment to date because [ ] Claimant’s testimony and Dr. Murphy’s statements substantiated that, inclusive of [ ] Claimant’s testimony about the use of the CBD oil.
….
22. [WCJ DiLorenzo] takes judicial notice: “Under the [Federal Employees Compensation Act (]FECA[)], the [United States] Department of Labor[ and Industry’s] (U.S. DOL) Office of [WC] Programs (OWCP) may provide to an employee injured while in the performance of duty, the services, appliances, and supplies prescribed or recommended by a qualified physician, which OWCP considers [“]likely to cure, give relief, reduce the degree or the period of disability, or aid in lessening the amount of the monthly compensation.” See[ ] FECA … Bulletin, No. 17-03, Issue Date March 22, 2017.
23. [WCJ DiLorenzo] takes judicial notice: “In accordance with the discretion granted to [the U.S.] DOL and delegated to OWCP, OWCP’s Division of Federal Employees’ Compensation (DFEC) is instituting a new policy for authorizing herbal supplements for work–related illnesses or injuries.” See[ ] FECA … Bulletin, No. 17-03, Issue Date March 22, 2017.
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29. Based on the evidence, inclusive of the testimony of [ ] Claimant and statements of Dr. Fruncillo, [ ] Claimant’s CBD oil is a “supply” and [ ] Claimant isn’t a “health care provider.” Since the basic premise in [WC] matters is that the [Act] is remedial in nature and intended to benefit the worker, the Act must be liberally construed to effectuate its humanitarian objectives and the word “supply” in the Act is thus liberally construed to include [ ] Claimant’s CBD oil. See[ ] Hannaberry HVAC v. W[orkers’] C[omp]. A[ppeal] B[d]. (Snyder), [575 Pa. 66,] 834 A.2d [524,] 528 (2003) (quoting Peterson v. W[orkmen’s] C[omp]. A[ppeal] B[d]. (PRN Nursing Agency), [528 Pa. 279,] 597 A.2d 1116 (1991)).
30. Based on [ ] Claimant’s credible testimony, the need for the supplies of the CBD oil is a direct result of [ ] Claimant’s work injury and, in his circumstances at least, the supplies of the CBD oil directly address [ ] Claimant’s sleep problems, the amount of his medication doses, and the prolongment of life without surgery, as results of the work injury. See[ ] Griffiths v. W[orkers’] C[omp]. A[ppeal] B[d]. (7 Stars Farm, Inc.), [596 Pa. 317,] 943 A.2d 242 (2008). Based on [ ] Claimant’s credible testimony, the CBD oil is a supply that addresses and is directly responsive to [ ] Claimant’s orthopedic issue from the work injury, is critical to [ ] Claimant’s ongoing care and health for [ ] Claimant’s work injury, and helps with the remediation of problems from the work injury. See[ ] id.
Slip op. at 5-9, quoting WCJ Findings (bold and italic emphasis added by Commonwealth Court). Employer appealed to the Workers’ Compensation Board. The Board reversed the WCJ and held that:
Based on the stated position and recent actions of the FDA, an insurer or employer cannot be required to pay for cannabis or cannabis-derived products, including [CBD oil]. Therefore, [Employer’s] failure to reimburse Claimant for his CBD oil expenses used to treat his work injuries is not a violation of the Act, and the Penalty Petition should have been denied. Finding a violation here is concomitant to compelling an employer to violate [f]ederal law.
Slip op. at 10, quoting Board Decision at 10. Board Commissioner James Zurick issued a Dissent, joined by Commissioner David Wilderman, opining that:
[WCJ DiLorenzo] did not err in awarding Claimant reimbursement. The Majority’s contrary determination would have an untenable impact on Claimant, specifically on him having to remain on opioid medication if he was denied reimbursement for CBD [oil], as testified to by his doctor. Instead, the Board should abide by the humanitarian objectives of the Act and affirm [WCJ DiLorenzo’s d]ecision and [o]rder.
Slip op. at 10-11, quoting Board Decision, Dissent at 1. Claimant appealed to Commonwealth Court, arguing that (1) the Board erred by expressly refusing to address whether CBD oil constitutes medical ‘supplies’ under Section 306(f.1)(1)(i) of the Act, (2) the cost containment regulations of the Workers’ Compensation Act apply to CBD oil; and (3) Section 306(f.1) of the Workers’ Compensation Act, 77 P.S. § 531, requires employers/insurers to reimburse claimants directly for out-of-pocket expenses for “medical services” and “medicines and supplies.”
Commonwealth Court found that the Board violated the standard of review by disregarding the WCJ’s findings and in failing to accept all reasonable inferences in favor of Claimant, by erroneously concluding that it would violate federal law to direct employer to reimburse claimant for CBD oil, and by improperly theorizing about the effect on insurers if they were required to pay for claimant-selected over-the-counter remedies. Commonwealth Court held that the evidence supported WCJ’s conclusion that CBD oil was both a “medicine” and a “supply” compensable under the Workers’ Compensation Act, reasoning that:
Medicine is commonly defined as “a substance or preparation used in treating disease[;] [ ] something that affects well-being; … [ ] a substance (such as a drug or potion) used to treat something other than disease.” Merriam-Webster.com. Similarly, the term “medical supplies” is defined as “[a]ny item that is essential for treating illness or injury.” Segens Medical Dictionary (emphasis added). Here, Dr. Murphy prescribed CBD oil to Claimant to treat his pain. See WCJ DiLorenzo’s FOF 14(a); R.R. at 175a-176a. The CBD oil has benefitted Claimant’s well-being by reducing his pain, eliminating his need to increase the use of highly addictive opioid medications, and forestalling expensive and risky surgery. See FOF 17, 30; R.R. at 178a-179a, 182a. Accordingly, CBD oil fits within the definitions of “medicines” and “supplies.” 77 P.S. § 531(1)(i).
Slip op. at 27-28. The court explained that the cost containment procedures under the Workers’ Compensation Act apply such that if an employer believes that treatment of a workers’ compensation claimant is not reasonable and necessary, it must submit the bills for utilization review or face the possibility of a penalty:
Employer ignores that “Section 306(f.1)(6) of the [A]ct[,] 77 P.S. § 531(6)[,] provides a UR process, intended as an impartial review of the reasonableness or necessity of medical treatment rendered to, or proposed for, work-related injuries and illnesses.” Section 127.401(a) of the Pennsylvania DOL’s Regulations, 34 Pa. Code § 127.401(a) (emphasis added). If Employer does not believe that CBD oil is a reasonable and necessary medical treatment for Claimant’s pain, it has the remedy of submitting that claim to the UR process. See W&W Contractors, Inc. v. Workers’ Comp. Appeal Bd. (Holmes), 2021 WL 2644493 (Pa. Cmwlth. No. 836 C.D. 2020, filed June 28, 2021).
Slip op. at 28-29. Commonwealth Court concluded that Claimant was not required to comply with Department of Labor regulations applicable to health care providers, reasoning that:
Section 306(f.1)(5) of the Act requires: “The employer or insurer shall make payment and providers shall submit bills and records in accordance with the provisions of this section.” 77 P.S. § 531(5) (emphasis added). Further, Section 127.201 of the Pennsylvania DOL’s Regulations mandates:
(a) Requests for payment of medical bills shall be made either on the HCFA Form 1500 or the UB92 Form (HCFA Form 1450), or any successor forms, required by HCFA for submission of Medicare claims. If HCFA accepts a form for submission of Medicare claims by a certain provider, that form shall be acceptable for billing under the [A]ct.
(b) Cost-based providers shall submit a detailed bill including the service codes consistent with the service codes submitted to the [WC] Bureau on the detailed charge master in accordance with [Section 127.155(b) of the [Pennsylvania DOL’s] Regulations, 34 Pa. Code] § 127.155(b) (relating to medical fee updates on and after January 1, 1995–outpatient acute care providers, specialty hospitals and other cost-reimbursed providers), or consistent with new service codes added under [Section 127.155(d) and (e) of the [Pennsylvania DOL’s] Regulations, 34 Pa. Code] § 127.155(d) and (e).
34 Pa. Code § 127.201 (emphasis added). Section 127.202(a) of the Pennsylvania DOL’s Regulations specifies that “[u]ntil a provider submits bills on one of the forms specified in [Section] 127.201 [of the Pennsylvania DOL’s Regulations] … insurers are not required to pay for the treatment billed.” 34 Pa. Code § 127.202(a) (emphasis added). Finally, Section 109 of the Act defines “provider” as “a health care provider.” 77 P.S. § 29. Accordingly, the clear statutory and regulatory language mandates providers, not employees, to submit bills on specified forms for a billed treatment to be paid.
Based upon this Court’s review, drawing all reasonable inferences in Claimant’s favor on the Penalty Petition, as it must, the credible record evidence supports WCJ DiLorenzo’s conclusion that Claimant is not a provider. [FN 25] Because Claimant is not a health care provider, Section 306(f.1)(5) of the Act and Section 127.201 of the Pennsylvania DOL’s Regulations do not apply to him. Consequently, Claimant was not required to submit an HCFA form and/or periodic medical reports in order to receive reimbursement from Employer. Rather, in order to obtain reimbursement, Claimant only had to submit his doctor’s prescription for CBD oil to treat the pain caused by his work injury and his receipts therefor, which he did.
[FN 25] The Dissent posits that Section 306(f.1)(2) of the WC Act requires that medical reports documenting treatment must be filed by a provider within 10 days of commencing treatment and at least once a month thereafter as long as treatment continues. Thus, the Dissent maintains the CBD oil is not eligible for reimbursement because Claimant did not submit reports documenting that CBD oil was part of his medical treatment plan. However, Claimant was not required to submit medical reports because he is not a health care provider. Section 306(f.1)(5) of the Act requires: “The employer or insurer shall make payment and providers shall submit bills and records in accordance with the provisions of this section.” 77 P.S. § 531(5) (italic and bold emphasis added). Because Claimant is not a health care provider, Section 306(f.1)(5) of the Act and Section 127.201 of the Pennsylvania DOL’s Regulations do not apply to him. Just as Claimant was not required to submit his request for payment on an HCFA form because he is not a health care provider, Claimant was not required to submit a doctor’s report for reimbursement because he is not a health care provider. Accordingly, Claimant submitted his CBD oil prescription and receipts to Employer.
Slip op. at 31-32.
Concurring, Judge Wallace wrote separately to express her opinion that CBD oil is a “medicine” rather than a “supply” under the Workers’ Compensation Act, reasoning that:
I agree with the Majority’s recitation of our obligations when engaging in statutory construction. In applying dictionary definitions to determine common and approved usage of undefined words, however, I would begin by considering the context in which those words appear. Then I would select a dictionary definition that fits in the context of each word’s use.
Section 306(f.1) of the Act uses the words “medicines” and “supplies.” 77 P.S. § 531(1)(i), (ii). The word “medicines” appears three times in Section 306(f.1), while the word “supplies” appears five times. Three of the times each word is used is in the phrase “medicines and supplies.” The definition the Majority attributes to “supplies” is so broad that all “medicines” are also “supplies.” See Schmidt v. Schmidt, Kirifides & Rassias, PC (Workers’ Comp. Appeal Bd.), 305 A.3d 1137, 1156 (Pa. Cmwlth., No. 1039 C.D. 2021, filed Nov. 14, 2023), (defining “supplies” as “any item that is essential for treating illness or injury”). If all “medicines” are also “supplies,” then the word “medicines” would not have any meaning in the Act. Therefore, I believe the Majority’s interpretation of the meaning of “supplies” under Section 306(f.1) of the Act violates our mandate in statutory construction to give effect to every word in a statute. See 1 Pa.C.S. § 1922(2). My belief that the General Assembly did not intend all “medicines” to be included within “supplies” is further supported by the General Assembly’s use of “supplies” on two occasions in Section 306(f.1) of the Act after the adjective “hospital” and without the word “medicines.”
Accordingly, when I consult a dictionary to ascertain the meaning of “medicines” and “supplies” in accordance with common and approved usage, I would utilize only definitions that do not subsume one another. A “medicine” is defined as “any drug or remedy.” A medicine is not a drug under Section 306(f.1) of the Act, because Section 306(f.1) separately uses the term “drug” on numerous occasions. See 77 P.S. § 531. A “remedy” is defined as “an agent that cures disease or alleviates its symptoms.” As the Majority correctly notes, Dr. Murphy prescribed CBD oil to Claimant for the purposes of alleviating his pain and avoiding the need to increase the dosage of opioid pain medications. Thus, Dr. Murphy prescribed CBD oil as an agent to alleviate Claimant’s pain symptoms, and I would conclude that, under the facts presented in this case, CBD oil qualifies as “medicines” under Section 306(f.1) of the Act.
While the Majority correctly notes that Segen’s Medical Dictionary defines “medical supplies” as “[a]ny item that is essential for treating illness or injury,” I begin by considering what constitutes an “item.” An “item” is defined as “an individual article or unit, especially one that is part of a list, collection, or set.” https://languages.oup.com/google-dictionary-en/ (last visited November 13, 2023). Returning to Segen’s Medical Dictionary, a comment immediately following the definition of “medical supplies” explains:
In the working parlance, medical supplies are usually understood to mean articles which are low-cost, disposable, and used in high enough volume that the purchasing department has standing orders in place to ensure that the items of interest (e.g., gloves, gauze, needles and syringes) are never out of stock.
See https://medical-dictionary.thefreedictionary.com/Medical+Supplies (last visited November 13, 2023). “[W]orking parlance” and “usually understood to mean” are synonymous with common and approved usage. As a result, I would consider the common definition of an “item” together with the comment following the Segen’s Medical Dictionary’s definition of “medical supplies” to mean that CBD oil does not qualify as “supplies” under Section 306(f.1) of the Act.
Slip op. at SW-4 – SW-6.
In dissent, Judge Fizzano Cannon, joined by Judge Dumas, opined that the use of hemp products like CBD oil “raises important policy and regulatory questions that must be answered by the Legislature, not by this Court.” Slip op. at CFC-2. Although agreeing with the majority that Claimant is not a health care provider, the dissent would find that his non-provider status did not excuse Claimant from submitting documentation in order to trigger reimbursement requirements. Additionally, the dissent disagreed that CBD oil ingested orally, whether or not prescribed as part of a medical treatment plan, is subject to reimbursement by an employer under the Act or that an employer can be subject to a penalty for refusing to reimburse for CBD oil use. The dissent reasoned:
I acknowledge the WCJ’s credibility findings concerning the benefits Claimant maintains he has received from his use of CBD oil. However, I reiterate that the pertinent legal issue is not whether Claimant obtains pain relief from ingesting CBD oil, but rather, whether such a use, which is both off-label and not approved by the FDA, and which was not included in his doctor’s treatment plan, is subject to reimbursement by Employer under the WC Act. The Board did not err in denying reimbursement for Claimant’s oral use of CBD oil.
Further, even had Claimant’s doctor recommended Claimant’s oral use of CBD oil, a doctor’s prescription or recommendation for use of a product that is not subject to reimbursement under the WC Act cannot alter the product’s non-reimbursable status so as to force the employer to pay for it. See, e.g., Boleratz v. Workers’ Comp. Appeal Bd. (Airgas, Inc.), 932 A.2d 1014 (Pa. Cmwlth. 2007) (employer was not required to reimburse the claimant for therapeutic massage provided by unlicensed massage therapist, even though the massage therapy was prescribed by the claimant’s doctor). Thus, even if the Board’s decision were incorrect in stating that the CBD was not prescribed as Claimant used it, Claimant still would not be entitled to reimbursement.
Slip op. at CFC-19 – CFC-20. The dissent would further find that the Board did not need to address the issue of whether CBD oil is a “medicine” or “supply” under the Act, concluding that:
Section 306(f.1)(1)(i) of the WC Act requires, in pertinent part, that “[t]he employer shall provide payment in accordance with this section for reasonable surgical and medical services, services rendered by physicians or other health care providers, including an additional opinion when invasive surgery may be necessary, medicines and supplies ….” 77 P.S. § 531(1)(i). Claimant contends that CBD oil can be either a “medicine” or a “supply” within the meaning of the WC Act. The WCJ found as a fact that CBD oil is not a drug, but a dietary supplement. See Maj. Op., 305 A.3d at 1144 (quoting WCJ’s credibility findings accepting testimony that CBD oil is a dietary supplement as opposed to a drug, based on the product label).
The Majority posits, in agreement with Claimant, that CBD oil constitutes a “supply.” However, neither the definition of “medicine” or “supply” comes into play here because, as explained in the previous section, orally ingested CBD oil was not part of any treatment plan by Claimant’s doctor, nor could it properly have been, as it is not approved by the FDA for oral use, even as a dietary supplement, much less for pain relief. Therefore, it does not matter whether CBD oil does or does not fall within the statutory definition of “supplies” that would otherwise be subject to reimbursement. Accordingly, the Board did not need to address that issue.
Moreover, if the Board had considered the issue, I believe the correct conclusion would have been that CBD oil is not a “supply” subject to reimbursement by a WC insurer. CBD is arguably unique in its present status, because of its widespread popular reputation as a pain reliever. However, I must emphasize again that its pain-relieving properties are currently anecdotal, in that they are not supported by any science currently accepted by the FDA. Federal and state authorities may be frustratingly slow in responding to what appears to be a growing body of information supporting the medicinal value of CBD, particularly in the midst of the current opioid crisis. Nevertheless, I reiterate that it is the function of the Legislature, not this Court, to decide whether WC claimants should be entitled to reimbursement for CBD in its present circumstances.
Slip op. at CFC-21 – CFC-22.
The Pennsylvania Supreme Court granted allocatur to consider the following issues:
(1) Do the terms “medical services” and “medicines and supplies” as used in Section 306(f.1), 77 P.S. § 531, of the Workers’ Compensation Act, include cannabinoid oil (CBD oil), specifically, as well as dietary supplements, generally, and products that may be purchased without a prescription from a healthcare provider?
(2) Do the cost containment regulations of the Workers’ Compensation Act apply to CBD oil?
(3) Does Section 306(f.1) of the Workers’ Compensation Act, 77 P.S. § 531, require employers/insurers to reimburse claimants, directly, for out-of-pocket expenses for “medical services” and “medicines and supplies,” and if so, are claimants obligated to submit supporting documentation, such as medical records or prescriptions, or specified forms, such as HCFA forms, before they may receive such reimbursement?
For more information, contact Kevin McKeon or Dennis Whitaker.