Pennsylvania Supreme Court will decide whether workers' compensation covers CBD oil as a drug

An experienced Pennsylvania workers' compensation attorney will soon have the opportunity to argue before the Pennsylvania Supreme Court that his own use of cannabinoid oil (CBD oil) is covered by workers' compensation.

He won that argument last November with a Commonwealth Court ruling in his favor, but the insurer appealed and the Supreme Court agreed to hear the case on April 30.

Attorney Mark R. Schmidt is battling his employer, the law firm Schmidt, Kirifides and Rassias, and the Workers' Compensation Board over the denial of his request for reimbursement for the cost of CBD oil he used for a work-related back injury.

In Pennsylvania, workers' compensation now pays for CBD oil treatment

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

The Workers' Compensation Lawyer's Journey
Attorney Mark R. Schmidt, who has practiced workers' compensation law for more than 30 years, began his career at PMA Insurance Co., where he defended employers against workplace injury claims. In 1994, he began his current career representing injured workers with insurance companies.
Schmidt suffered an accident at work in April 2017 when he was in a squatting position loading files into a sample bag for work, tipped the sample bag onto its wheels, suffered back pain and fell on his side. Specifically, he suffered an exacerbation of a pre-existing degenerative disc disease. In October 2018, his claim for his lower back injury was accepted as work-related and he was awarded “all medical expenses incurred…that are reasonable and necessary.” His treatment was limited to pain management, for which he was prescribed Oxycodone, OxyContin, Soma, Ativan, Zoloft, and CBD oil.
Since the accident at work, he has been taking OxyContin, once in the morning and once in the evening. In addition, he takes oxycodone approximately two to four times daily for breakthrough pain as needed. Because long driving and sitting in court chairs worsened his pain, his doctor recommended increasing his medication dosage. Schmidt rejected this proposal because it would interfere with his ability to think, concentrate, and represent his clients. After researching various alternatives such as water therapy, injections and surgical procedures, his doctor prescribed CBD oil instead of increasing the dosage of medication.
Schmidt chose not to undergo surgery because he knew the risks and wanted to avoid being out of work for a long period of time while recovering. Rather, he tried to exhaust all other options before resorting to surgery. He received two injections given by his doctor; However, each injection only provided pain relief for 7 to 10 days. Afterward, his doctor prescribed him CBD oil to avoid increasing his OxyContin and oxycodone dosages and to prevent surgery. CBD oil treatment has proven to be successful.
Schmidt submitted the CBD oil prescription and receipts to his employer, who refused to reimburse his expenses for CBD oil on the grounds that CBD oil was not a drug. Schmidt accuses his employer of violating workers' compensation law by not reimbursing him for medical treatment costs out of his own pocket.

Medical research is limited, but some studies suggest that CBD may help with insomnia, chronic pain, inflammation due to arthritis, and anxiety. It does not produce a “high” effect on users.

Schmidt's doctor prescribed CBD along with oxycodone and other treatments and medications for his back injury. The CBD relieved his pain, eliminated the need to increase his painkiller dosage, and helped him avoid back surgery. Schmidt didn't actually use his doctor's prescription for CBD; Instead, he purchased his oral and topical CBD over the counter from a natural health store.

Claims rejected

His employer refused to reimburse the CBD on the grounds that purchasing unregulated CBD oil from an unlicensed health food store does not qualify as medical treatment or “medicines and supplies” under the law. The company also claims that reimbursing CBD oil would violate Federal Drug Administration (FDA) guidelines.

The workers' compensation judge ruled that his employer was obligated to pay for Schmidt's CBD oil because it was considered medical care under the law and was part of his reasonable and necessary medical treatment.

Workers' compensation must reimburse the cost of medical marijuana in Pennsylvania

However, the WC Board rebuffed the workers' compensation judge and concluded that CBD oil cannot be a reasonable and necessary medical treatment because it does not come from a medical provider and an insurer or employer cannot be required to pay, as the FDA has warned companies marketing CBD products for violating federal laws.

The WC board also theorized that introducing CBD oil would “open the floodgates” to employees being able to provide “personal receipts for homeopathic remedies” for reimbursement.

Over the counter

Schmidt appealed the WC board's decision to the court. Schmidt argued that the WC board exceeded its authority by disregarding the judge's findings of fact. He said the panel also did not provide an answer as to whether CBD oil was a drug or a supply within the meaning of the law.

Schmidt contends that nothing in the law limits reimbursement-based medications and supplies to items that can only be obtained through a pharmacist, nor is there any statute that prohibits reimbursement for medications and supplies purchased over the counter.

In its 5-2 opinion written last November by Judge Anne E. Covey, the Commonwealth Court quoted the workers' compensation judge as saying that workers' compensation law must be “inherently remedial and beneficial to the worker” and therefore must be “generously construed,” to achieve its humanitarian goals.” Therefore, “medicine” and “supply” have been generously construed to include CBD oil.

Addressing concerns about the FDA warning, the court noted that FDA approval of a treatment is not required under state law and that the fact that some CBD marketing efforts may contain unsubstantiated therapeutic claims or otherwise violate federal law Use of CBD by an employee does not mean employer reimbursement for CBD oil is illegal.

The Pennsylvania Supreme Court said it will address several key questions on appeal: whether the terms “medical services” and “drugs and supplies” in the Workers' Compensation Act specifically include CBD oil, as well as dietary supplements generally and products containing them do can be purchased without a prescription from a healthcare provider; whether cost containment regulations apply to CBD oil; Whether the law requires employers/insurers to directly reimburse applicants for out-of-pocket expenses for “medical services” and “medicines and supplies,” and if so, whether applicants are required to submit relevant documentation.

While the status of CBD oil is questionable, the cost of medical marijuana is actually covered by the state's workers' compensation law. In March 2023, the same Commonwealth Court, in an opinion from the same judge, ruled that the Medical Marijuana Act (MMA) does not alter the Workers' Compensation Act's requirement that employers reimburse employees for reasonable and necessary out-of-pocket costs of medical treatment. However, medical marijuana may only be provided to patients who have a certificate.

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