Marijuana was once fodder for stoner comedies and standup routines. But today, medical marijuana is a serious matter in Workers’ Compensation. Fair compensation, and proper medical treatment, is not always as clear as it should be. Laws evolve by the day, state by state.
Guest Jenifer Dana Kaufman is a Pennsylvania Workers’ Comp attorney who has developed a wealth of experience where marijuana law collides with fair compensation and treatment. In this episode of Workers’ Comp Matters, hear how Kaufman unraveled a complicated case and how competing state and federal laws tangle the issue of appropriate care when marijuana is involved, even when prescribed in a state where medical marijuana is legal.
Intent and medical recommendations matter, but can insurers be required to pay for a drug that is technically illegal under federal law? What’s the difference between an insurer paying directly for marijuana vs. reimbursing a patient? Take a deep dive into how marijuana therapy as a Workers’ Comp issue continues to develop.
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Intro: Workers Comp Matters, the podcast dedicated to the laws, the landmark cases and the people that make up the diverse world of workers’ compensation. Here are your hosts, Judd and Alan Pierce.
Alan Pierce: Well hello everybody, this is Alan Pierce here along with Judson Pierce for another edition of Workers Comp Matters here on the Legal Talk Network. It’s a matter of just coincidence we are recording this program on April 20, and that date 4/20 may cause a couple of chuckles who want to avoid making too much light of the subject matter today, but it is the responsibility of workers’ comp insurance companies to either pay or reimburse injured workers for the utilization of medical marijuana as a treatment modality for pain as a result of work injuries.
And we are pleased to have a guest who recently successfully argued a case involving this precise issue before the Commonwealth Court in Pennsylvania, Jenifer Dana Kaufman is our guest, and Judd tell us a little bit about Jenifer.
Judson Pierce: Absolutely, Jenifer graduated from the University of Pittsburgh School of Law in 1997. Received her BA from the George Washington University in 1994 and she has been licensed to practice law in the Commonwealth of Pennsylvania since 1997, is also licensed in New Jersey. She’s an active member of the Philadelphia Montgomery County Bar Associations and Workers’ Comp Sections and has been a member of the Philadelphia Bar Association’s Marijuana and Hemp Law Committee since its inception. She’s also been accredited by the US Department of Veteran Affairs as a Veterans Benefits Attorney. And I had the pleasure of meeting you, I think it was a week or so ago at a conference, a National Conference and you spoke and it was just remarkable hearing you because you and I are basically the same age. I graduated college in 94, graduated law school in 97. And boy, I just I am looking up to your career and marveling at especially the recent success you had. So congratulations, and it’s a pleasure to welcome you on this program, Jen.
Jenifer Dana Kaufman: Thank you. It’s a pleasure to be here and it’s a pleasure to see you again.
Alan Pierce: Okay Jenifer, and again to give you a little bit more of a plug, you practice out of the Kaufman Workers’ Compensation Law firm in Abington Pennsylvania.
Jenifer Dana Kaufman: Yes, it’s my own firm. I’ve been on my own about five years.
Alan Pierce: Okay. You just recently were successful in a case at the Appellate level in Pennsylvania, why don’t you just give us a quick overview of what that issue is before we delve into the substance behind the controversy that is evolving in all 50 states regarding the use of medical marijuana in the workers’ comp setting.
Jenifer Dana Kaufman: Certainly. So my client was injured back, way back to the 1970s. He’d had three failed back surgeries. He was left with very chronic low back pain into his legs. There were times he would have tremors as a result of his injuries. And for years, he had been maintained on various narcotics, Vicodin Percocet and eventually OxyContin. He became addicted to OxyContin. It had a pretty deleterious effect on him, mentally and socially, and then at the request of his treating doctor he was suggested for medical marijuana shortly after it was legalized here in Pennsylvania. And with the help of his doctor, and probably took him about a year and a half, he was able to completely wean himself off of the OxyContin and the diazepam after being on these medications for several decades. He had equal or better pain relief and it actually returns some quality of life to him in terms of his mental state, his ability to go out.
As I’m sure you’re all aware when people are on things like OxyContin, it has a very negative effect on people’s personalities, their interpersonal and their family and of course set on mushrooms and it’s a pretty bad negative feedback loop. So I had requested the workers’ comp carrier and his case is an old case where the medical is still open. Even though he had settled the indemnity years ago and I had requested the carrier, major carrier to reimburse and they would not and hence litigation commenced to get him reimbursed. He was using about $300 a month of medical marijuana versus a very considerable amount they were paying for OxyContin, diazepam. At least here in Pennsylvania if you’re on those things, I believe we have to get drug tested two or three times a year so that cost money. And he wasn’t really gaining anything in terms of his quality of life while taking those medications, and it was interesting in his case because it was the carrier who actually prompted the switch to OxyContin because it was cheaper and it was, hey, it’s the time-release pill, you just have to take it so many times a day.
But they absolutely would not pay to reimburse him, given the fear, primarily the fear of Federal Law. I’ve had other cases where the Pennsylvania statute came into play, in this case it really didn’t until much later down the road.
Alan Pierce: So what did the workers’ comp judge do with your claimant and how did it get to the court where you just recently had some success?
Jenifer Dana Kaufman: So what actually happened was when I made the request, I filed a petition to have him reimbursed and the carrier also submitted the case to what we call Utilization Review, this is where an outside medical reviewer decides the treatment is reasonable and necessary, and it came back reasonable and necessary, and they did not appeal it. I am not sure why it was not appealed. So I had a final un-appealed Utilization Review finding this treatment reasonable and necessary and Pennsylvania Law says you shall pay, it’s not discretionary, and then that’s where we really got into the arguments before the judge as far as whether your Federal preemption and the like.
So my client testified twice. It did actually go through two judges because one retired and the Judge ultimately concluded that it was — he couldn’t really rule on the reasonable and necessity nature, but he concluded it would violate Federal Law if he were to allow this, and that they would not put the carrier in a position where they could be prosecuted, it’s a pretty standard refrain in these types of cases.
I took that to the Pennsylvania Appeal Board who essentially said, they didn’t feel they were smart enough or well-versed enough in Federal Law to make the determination that they are a Pennsylvania Administrative Agency and therefore they are not qualified to weigh in on Federal Law. I believe the case is out of Minnesota, that went to the US Supreme Court. There was a similar reasoning by their equivalent of the Appeal Board.
Then I took that to the PA Commonwealth Court where it was argued en banc. So before I believe five or seven of the nine justices, it was heard with another case that was not mine, sort of same issues and took about a year and a half and then on St. Patrick’s Day, we got the favorable decision from Commonwealth Court.
Alan Pierce: Okay, and just for our listeners who might be interested, could you give us a caption of the case so they could find it?
Jenifer Dana Kaufman: It’s a Fegley, F-E-G-L-E-Y, it’s 680 Pennsylvania C.D. 2021. My client’s name was Sheetz, S-H-E-E-T-Z, but because he passed away during the pendency of the litigation that changed to Fegley v. Firestone Tire & Rubber (WCAB). There’s not an a third site yet but I presume there will be.
Judson Pierce: Just back to the basics for us if you wouldn’t mind, what is medical marijuana? Specifically, there’s a lot of talk about CBD, there are some stores that sell CBD Oil or whatnot, and then there’s the cannabis. Can you break it down for our listeners generally?
Jenifer Dana Kaufman: Sure. So there’s nothing magical about medical marijuana. It’s marijuana as we think of it and it’s also been processed into other forms. The main thing that makes marijuana medical is that a state has licensed the sale of it through a dispensary system. So if you buy an eighth of flower in a Pennsylvania dispensary or any dispensary, that’s the same type of flower you would buy in a recreational state or if you’re old-fashioned and off the street or whatever, there’s nothing magical about that.
The other part of medical marijuana is the formulations. They have been able to extract the THC, which is the component that gets you high, and also has medicinal properties. And at times the CBD as well, because marijuana has both, they’re both naturally occurring and formulate that into tinctures, salves, concentrates, and concentrates are like anywhere from the consistency of butter to something really hard that they call shatter, because it will shatter, and that can be inhaled.
There’s also prefilled cartridges that are sold here in Pennsylvania with the liquids. A popular one is something called RSO Rick Simpson Oil, which is a very pure, highly processed strain where you either put it under your tongue a couple of drops or take a capsule.
So medical marijuana is a pretty broad thing. We don’t do edibles in Pennsylvania, some states do. But ultimately it’s what you think of as marijuana plus some additional extracts and formulations. And what makes it medical is the intent that you got a card legally through your state and you are following the state’s procedures, and a doctor has properly recommended you for it. And as long as you jump through those hoops, it’s medical marijuana and it is legal I think in 38 or 39 States at this point.
Alan Pierce: Now, from reading some of your materials that you presented at this seminar last week, you broke down the categories of CBD and THC. THC is what I think most of us are familiar with is the part of the cannabis, marijuana or a hemp plant that gets you high, whatever that means to you or has some psychotropic properties. CBD, which we can see even in non-marijuana states being sold legally is, is somewhat different, and is it the CBD that is the analgesic or pain relieving substance?
Jenifer Dana Kaufman: Not necessarily. There’s a bunch of cannabinoids that are contained in the cannabis plant. The cannabis plant runs the gamut from hemp to medical marijuana. And I think the example I like to use is with peppers, if you think of the range between a bell pepper and a superhot ghost pepper, they’re still peppers and the same thing with cannabis, hemp and marijuana are still cannabis. Hemp is grown for the CBD and for industrial purposes and CBD has a variety of different uses, both pain relief, any inflammatory and the like. And then THC is less than 0.3%, it’s generally negligible trace amounts in something that’s called hemp.
But when it’s called marijuana, the THC is above that limit and usually there is some level of CBD still in there. There’s a bunch of cannabinoids beyond just CBD, CBG, CBH, CBC, and all these are believed to have specific properties. As far — and CBD is sold over-the-counter as long as it meets those requirements of under 0.3% THC. That’s not sold in dispensaries however, the products in the dispensaries may have a certain amount of CBD for the properties it has. A lot of people believe in what’s called the Entourage Effect. That is the combination of the different cannabinoids that will produce the desired effect, or a full spectrum of different substances.
And for some people it’s actually the THC not the CBD, I think CBD is generally beneficial to most people and primates and even animals. But for certain conditions like PTSD, it’s actually the THC for whatever medical reason that provides the relief more so than the CBD component. And obviously dispensaries, it runs the gamut the THC products how much CBD they also place in it. But you’re not going to generally find a pure CBD product at a dispensary because you don’t need to go to the trouble of getting a card and going to a dispensary to obtain that it’s pretty readily available at various locations.
Judson Pierce: Why don’t we take a short break for a word from one of our sponsors and we’ll be right back with Attorney Jen Kaufman. Be back soon.
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Judson Pierce: And we’re back. Jenifer, could you tell us whether or not a direct pay scenario exists in any of our states or if most of the states that have allowed it are just following the reimbursement rule?
Jenifer Dana Kaufman: There are five states that do allow for reimbursement and I believe for all of them, it is reimbursement, not direct pay. And that’s because of the Federal Law. There’s one state New Mexico, which has made marijuana part of their fee schedule. However, I do believe it’s still a reimbursement model. As long as it’s still a scheduled one, I think that would be hold true just to not run afoul of the Controlled Substances Act at this time.
Alan Pierce: Jenifer, about how many states now allow for the use or licensing of dispensaries for medical marijuana?
Jenifer Dana Kaufman: I think it’s 39 plus Puerto Rico plus Guam plus Washington D.C., so it’s very — now some have different, some are CBD only where they don’t get into the THC products, but it’s the great majority that permitted. Now some of the states, even though they technically are medical marijuana states they may not have an active program running yet due to some Court challenges and other issues that have arisen. So like I’m not positive, like, for example, Mississippi ever got their medical marijuana program up and running after they voted for it, and even in New Jersey there’s a lot of pushback from different counties. New Jersey’s Medical Marijuana Program was running, there were literally five dispensaries for the whole state which I probably have five within five miles of my house.
So different states had different levels of how robust their programs are and what conditions are covered. Some states are very narrow, they only want to deal with catastrophic diseases or illnesses, like certainly people dying of cancer or AIDS or things. I don’t think there’s a lot of dispute. But for example, Pennsylvania, we did not start as a state that covered anxiety, now we do and that’s a pretty vague diagnosis to say the least and it’s obviously a pretty subjective one, most of the time.
So all medical marijuana states are not the same in terms of how robust and how accessible their programs are.
Judson Pierce: You talk about a lot of action, legal action happening in the northeast corner of this country, what — do you make any sense of that, or why this area of the country do we have all this case law coming down; New Hampshire, Connecticut?
Alan Pierce: New Jersey, Pennsylvania, Maine.
Jenifer Dana Kaufman: It’s interesting and I think these are other than the far West Coast, these were some of the first states to permit medical marijuana and the majority of those states have moved on to adult use as well. I think it’s partly just the legal history. We don’t do things by vote, in other states they will put things to a proposition and they let the people decide that’s not really how the Eastern United States works very much. Our legislators just had to get the support they needed, they didn’t need to get the populace’s support to run these programs. And I think it’s just a matter of evolution that we’re a little further along in terms of having medical marijuana. I mean, Pennsylvania was sort of middle of the pack, we were far from the first, we are a follower state, but we’re usually an early follower state. And I think it’s also just the general, I guess more liberal ideologies that tend to as a whole, the states tend to be a little more progressive and liberal on these issues, and even the more conservative parts like I would not consider a Pennsylvania Republican the same as all other Republicans.
So I think it’s partly just the culture and the history of the East Coast and sort of some of the colonial roots in terms of some of the independence and the freedom. So I do think some of that does come into play without a doubt.
Alan Pierce: So Jenifer, before we take another short break, help me out here. Let’s say I am practicing law in one of the states which allows the insurer to reimburse my client for the purchase of marijuana for analgesic purposes. What do I need to do? What is my client need to do? What are the conditions for which this is reimbursable and what are the steps that need to be taken? For example, can my client just go into a dispensary for adult use and pick it up or tell us the rules that we have to play by.
Jenifer Dana Kaufman: So, I think in most states that are medical you need to get a recommendation from a doctor who is licensed by that state to recommend marijuana, because of the Federal Law it’s not a prescription, it’s a recommendation. So first and foremost, your client needs to get properly certified in the state where their workers’ comp claim is and hopefully where they live as well for a recognized condition under your state.
Alan Pierce: By certified, you mean get a Card?
Jenifer Dana Kaufman: Yes. So you go to a doctor, you have to go to a doctor, they meet with you, they look at medical records. They make sure that the condition you’re suffering from is an approved condition in that state, and that you appear that you would benefit from it. It’s not a real high bar but there is a bar. And then once that happens and you are approved, your certification, at least in Pennsylvania will say what condition you were certified for, which is potentially important because if my client gets certified because they’re anxious and then they’re using marijuana now say to treat a foot injury, I think there becomes a causal question.
So from the claimant’s perspective, I want my client to be sure they’re certified for the correct diagnosis, to keep receipts and it’s actually easy to get receipts if you don’t keep them. And then I as a practitioner want to make sure that everything lines up on the workers’ comp side. I mean these are going to be cases that are already accepted by, and I could see an exception, but generally speaking there’s an acceptance document and you want to make sure the acceptance document lists what the marijuana was prescribed or recommended for.
So if my client say for example, my say has a neuropathy, say they have low back radiculopathy, and that’s what they’re certified for. I want to make sure that my NCP or my acceptance document says, radiculopathy or something other than lumbar strain. Here in Pennsylvania, there’s a habit to call an injury the least significant thing you can call an injury and it even for people who’ve had back surgeries, they call it a strain and they could be on comp for 10 years and no one’s ever dealt with the description of injury, because it was never an issue. Everything’s just been paid for they are legitimately injured.
Well, I need to make sure that my documents legally matchup, because I would think strain would not necessarily be a convincing enough injury to justify medical marijuana, at least at this point in the game. So I want to make sure that matches up and get it corrected if necessary which in many cases I can’t really contest it. There’s an IME out there that gives you the injuries you want, but you want to make sure your ducks are in a row before Hannes do not prolong the process and make sure also that your client has a doctor, that they are checking in with periodically, doesn’t even have to be the doctor who recommended medical marijuana, who can document the benefit.
And what I personally do is I get the receipts together, I get a brief narrative from the treating doctor and I send it to the carrier requesting reimbursement. Now in Pennsylvania there — because of the case that came down, the court said that it must be reimbursed if it is reasonable and necessary, which gives two options for me. As a practitioner I can force the employer to file a Utilization Review, and if they don’t within a certain time, they’ve waived the right and then it is presumptively reasonable and necessary or I can file my own, I have the right, it’s a little more difficult. But I want to be able to make sure no matter what I can do is showing a reasonable and necessary. And that can be shown based on overall improvement in condition that’s documented. It could be shown they’re taking less other medications or treatments. It can also — in Pennsylvania, one of the accepted reasons for writing medical marijuana is opiate reduction and elimination. So, I could also in a case show that they are using less opiates and this is sort of a rehab of sorts, but I — yeah, I want to make sure that is all presented is clearly and simply.
And the other thing I would like is for my client to be consistent in wanting to keep using it, because there is a cost and $300 is a lot of money if you’re on a fixed income and it’s not always there and that they have some predictability that I can say to the adjuster. You’re looking at $200.00 a month, $250 a month, they’re using flower, they’re using shatter whatever it may be. But just like anything else — if you’re saying this is helping and this works, it helps if you can show that there’s a consistent treatment program. I understand dispensaries don’t always have the same exact strain every time you go, but at the same token they are all rather similar.
But the other thing to keep in mind is that there’s a trial and error period in the middle, I mean in the beginning. So somebody finds the right dosage and the right strain, your most qualified pharmacists start on the lowest micro dose. Basically, that being the lowest effective dose. So it may take someone a couple months till you can show that predictability to the carrier. While they decide, you know what I don’t like flower, I’d rather use RSO Oil or I found this is different product that really is what makes a difference and that’s fairly normal.
So surely working together with your client and also doing the legal stuff that’s necessary behind the scenes so that as soon as they’re ready to go, you’re ready to go.
Judson Pierce: That’s great. Why don’t we take our last break for this podcast? And we’ll be right back with Attorney Jen Kaufman.
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Alan Pierce: All right, we are back. And Jenifer, I want to maybe focus a little more on what we’ve continually hear about Federal issues that preclude the ability of insurers to pay for or even reimburse. Tell us what it is about medical marijuana as a substance or a drug that is classified and what this means to the states?
Jenifer Dana Kaufman: So marijuana is still a Schedule I drug and is still technically federally illegal. Even though it is legal at a state level, the reason it’s allowed to be legal at a state level is it’s gone through several different names, but the Rohrabacher Amendment to the Farm Bill, and that’s, I believe it’s Section 537. And this rider has been in it for over a decade and every time an Appropriations Bill is passed, it is there, and essentially that says that the Federal Department of Justice will not use any funds to go after states with Legitimate Medical Marijuana Programs. They will not prosecute. If you’re complying with your State’s Law, they’re not going to go after you.
Now just because you have a Federal-State dispensary, obviously, if there’s a legal activity that’s outside of the dispensary, they will pursue that and that protection, I don’t believe actually extends to adult use. So that is what has allowed these programs to exist. And previously, there have been some every DA sort of — not DA, Attorney General weighs in on that issue from time to time. But that’s what allows it, but even with that, that does not override the Controlled Substances Act and marijuana is still a controlled substance Schedule I illegal, no benefit, you are going to die if you take it sort of thing.
So as long as the Controlled Substances Act is in its present form, that’s not going to change. Now, you can argue whether it’s a meaningless law at this point, it can two laws like you can’t ride your bike on Wednesdays in the state of Colorado unless you’re wearing a polka dot tie, you know that kind of Law. And debatably we are going that direction, but until that, till the marijuana is either reclassified or declassified, technically this is still out there and it’s sort of been the best defense employers and carriers had to reimbursing is the fear of the Federal Government.
Judson Pierce: Looking towards the future, I know that I’ve been reading about psychotropic medications such as like you get for mushrooms. Do you see that as the sort of next frontier that we might be dealing with?
Jenifer Dana Kaufman: I think it’s certainly possible, it’s starting in the same types of states in terms of places like Oregon and Colorado. I’m not sure I’ll see you that in my lifetime, but I think at this point, the amount of study that’s been done on that is even less than the limited study on marijuana, but there are people who swear by it. I’m aware of that as being a frontier, and perhaps for certain, especially psychological conditions, it could be beneficial.
I think most people’s view of psychedelic mushrooms is very similar to your grandparents’ view of marijuana. Rightfully or wrongfully, I can’t answer that. I don’t know enough about it, but I do find it potentially a very interesting area, but I don’t think in my lifetime, especially in a worker’s comp setting I’m going to have to worry about that.
Judson Pierce: Interesting.
Alan Pierce: And I think, I think we could all agree if this particular substance that is providing the beneficial medical effects, such as CBD, were not associated with this long history of Reefer Madness and smoking weed and getting high. If we were really looking at the chemical as it acts on the central nervous system of the brain and provides relief. And it were in a pill form or a topical form we probably wouldn’t be having this issue, but because it is contained in a naturally occurring plant that just happens to produce something that also gets somebody high or alters their consciousness, or is an intoxicant, we have an issue. We could get into much more of the intoxication defense and the use of medical marijuana in the workplace and drug tests and mandatory drug tests and denial of benefits because of THC in your system, that would be another show or a couple of shows. In fact, we’ve done a show on intoxication and marijuana.
If somebody wants to learn more about your particular case or the research that you’ve done, how could they contact you?
Jenifer Dana Kaufman: They can reach me there at my website, which is kaufmanworkers.com or my email Jenifer, [email protected] or call. I’m in the office every day, we are open (267) 626-2973.
Alan Pierce: And that’s Jenifer with one n.
Jenifer Dana Kaufman: One n.
Alan Pierce: So you really need to buy a consonant. If I could —
Judson Pierce: If I could play, ran away a Scrabble, Scrabble whatever, I don’t know.
Well Jenifer, again, it was a pleasure having you on today. Your information is topical to say the least, given today is April 20th.
Jenifer Dana Kaufman: Thank you both Alan and Jud for having me today. Greatly appreciate it.
Judson Pierce: 420, we circle back to that three-digit code where we don’t really know the origins of, but it’s there. For Alan, this is Jud Pierce. Thank you again, Jenifer. And remember, making a day that matters.