No. 1039 C.D. 2021
OPINION BY: Judge Covey / FILED: November 14, 2023
In a Nutshell: Employer held liable to pay for the Claimant’s purchase of cannabidiol (CBD) oil. Claimant was not considered to be a healthcare provider and not required to submit periodic medical reports to receive reimbursement from Employer.
Claimant, who had sustained a work-related back injury, filed a Penalty Petition when Employer would not reimburse him monies he had paid for the prescribed cannabidiol (CBD) oil recommended by his treating physician after Claimant opposed his recommendation that his opioid medications be increased. Claimant, a lawyer, related to his physician that he feared that an increase in this medication would affect his ability to think, focus and represent clients.
Employer refused to reimburse Claimant’s out-of-pocket CBD oil expenses on the basis that it is not a pharmaceutical drug. Claimant had purchased this oil from a specialty natural remedy store.
The Court found there to be credible evidence supporting the WCJ‘s conclusion that CBD oil is a supply for purposes of section 306 (f)(1)(I) of the Act. The Court opined that “medical supplies” are defined as any item that is essential for treating illness or injury. The Court also found there was sufficient evidence to conclude that the CBD oil has benefited 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 which at one time his physician recommended for him to consider.
The Court rejected the stated position of the WCAB that CBD oil cannot be a reasonable and necessary medical treatment where the FDA has issued several warning letters to firms marketing CBD products for violating federal law pointing out that CBD is lawfully sold over the counter in Pennsylvania and all over the United States. Further, the issuance of these warning letters does not make Claimant’s use or Employer’s reimbursement for CBD oil illegal. There was no evidence that the CBD oil Claimant used is illegal under federal law.
The Court held that CBD oil is both a medicine and a supply for purposes of section 306 (F.1)(1)(i) of the Act. The Court further held that Claimant was not a healthcare provider and, accordingly, did not have to submit bills on one of the forms specified in the Pennsylvania DOL regulations. Additionally, there was no obligation on the part of Claimant to submit periodic medical reports 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 thereafter, which he did.
Accordingly, the WCJ‘s Granting of Claimant’s Petition for Penalties was affirmed by the Court. The WCJ had ruled that Employer was liable to pay for the cost of Claimant’s CBD oil because it was a medical supply under the Act and part of Claimant’s reasonable and necessary medical treatment. However, the WCJ did not assess penalties against Employer.
The Court also pointed out that, if employers do not believe that a substance such as CBD oil is a reasonable and necessary medical treatment for Claimant‘s pain, it has the remedy of submitting that claim to a UR process.
A Dissenting Opinion was filed by Judge Fizzano Cannon agreeing with the Majority that Claimant is not a health care provider, but opining his non-provider status does not excuse him from submitting proper documentation in order to trigger reimbursement requirements.
This jurist pointed out that Claimant had purchased and used the CBD oil for a purpose not approved by the FDA, namely, as a dietary supplement or for oral use to relieve pain. Neither was Claimant’s oral use of dietary CBD oil within the treatment plan created by his physician whose prescription called for topical application. Focusing on these sets of facts, the judge concluded that reimbursement under the Act for such a purchase is not proper or legally required.
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