IN THE COMMONWEALTH COURT OF PENNSYLVANIA 

eresa L. Fegley, as Executrix  

of the Estate of Paul Sheetz, 
Petitioner 
 
 
 
 
 
 
v. 
 
 
 
 
Firestone Tire & Rubber (Workers’ 
Compensation Appeal Board), 
Respondent 
 

 
 
 

 

 
 
 
 
 
 
 
 
 

: 
: 
: 
: 
: 
: 
: 
:  No. 680 C.D. 2021 
:  Argued: September 14, 2022 

EFORE:  HONORABLE RENÉE COHN JUBELIRER, President Judge 

HONORABLE PATRICIA A. McCULLOUGH, Judge 
HONORABLE ANNE E. COVEY, Judge 
HONORABLE MICHAEL H. WOJCIK, Judge 
HONORABLE CHRISTINE FIZZANO CANNON, Judge 
HONORABLE ELLEN CEISLER, Judge 
HONORABLE STACY WALLACE, Judge  
 

PINION BY  
JUDGE COVEY 

 

 

 

 

FILED:  March 17, 2023 

Teresa L. Fegley, as Executrix of the Estate of Paul Sheetz (Claimant),1 

petitions this Court for review of the Workers’ Compensation (WC) Appeal Board’s 

(Board) June 17, 2021 order affirming the WC Judge’s (WCJ) decision that denied 

Claimant’s  Petition  for  Penalties  (Penalty  Petition)  and  granted  Firestone  Tire  & 

Rubber’s (Employer) Petition for Review of Utilization Review (UR) Determination 

(UR Petition).2  Claimant presents four issues for this Court’s review: (1) whether 

 

 

1 On June 22, 2021, Paul Sheetz (Sheetz) filed the petition for review.  By August 10, 2022 
Order,  this  Court,  upon  review  of  a  Notice  of  Death  and  Substitution  of  Successor,  Teresa  L. 
Fegley, Executrix of the Estate of Paul Sheetz (Fegley), substituted Fegley as petitioner.  Thus, 
this Court will use “Claimant” to refer to Sheetz and Fegley interchangeably, depending on the 
context. 

2 The UR determination did not involve medical marijuana, and Claimant is not appealing 

from that portion of the Board’s order. 

 

 T

  B

 
 
 
 
 
 
 

   

 O

the Board erred by making its determination because Employer did not raise Section 

2102 of the Medical Marijuana Act (MMA)3 as a defense, thereby, waiving the issue 

on appeal; (2) whether the Board erred by concluding that Section 2102 of the MMA 

applies  to  WC  carriers  and  overrides  the  requirements  of  the  WC  Act4  and  the 

Board’s  Regulations  that  mandate  insurers  pay  for/reimburse  the  cost  of  medical 

treatment that is reasonable, necessary, and related to an accepted work injury; (3) 

whether the Board erred by concluding that Section 2102 of the MMA precludes 

reimbursement for medical marijuana to a claimant using medical marijuana to treat 

an accepted work injury when it has been determined that such treatment is related 

to the work injury and is reasonable and necessary; and (4) whether the Board erred 

by  failing  to  address  and  reverse  the  WCJ’s  sole  basis  for  denying  the  Penalty 

Petition  –  that  reimbursement  of  Claimant’s  medical  marijuana  treatment  would 

cause the WC carrier to violate federal law.5   

 

 

 

Facts 

On September 19, 1977, Claimant sustained an injury during the course 

and scope of his employment with Employer.  As a result thereof, Claimant received 

medical  treatment  beginning  in  1977,  which  included  two  back  surgeries.    See 

Reproduced Record (R.R.) at 10a; WCJ Dec. at 3.  Due to the severe pain in his back 

and legs, Claimant’s doctor prescribed opiates and narcotics, including, inter alia, 

OxyContin.  See R.R. at 11a; WCJ Dec. at 4.  Decades later, at the recommendation 

of his doctor, Claimant began taking medical marijuana in January 2019, with the 

 

3  Act  of  April  17,  2016,  P.L.  84,  as  amended,  35  P.S.  §  10231.2102  (“Nothing  in  [the 
MMA]  shall  be  construed  to  require  an  insurer  or  a  health  plan,  whether  paid  for  by 
Commonwealth funds or private funds, to provide coverage for medical marijuana.”). 
4 Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2710. 
5 This Court has changed the order of Claimant’s issues for ease of discussion. 
 

2 

hope of eliminating the need for the opiates and narcotics he had been taking for 

approximately  30  years.    Medical  marijuana  afforded  Claimant  pain  relief  and 

reduced  his  need  for  the  opiates  and  narcotics.    See  id.    Further,  the  medical 

marijuana “helped Claimant greatly[,] . . . [en]abl[ing him] to be more social and 

have  more  better  [sic]  thoughts.”    R.R.  at  55a.    Relative  to  treating  his  pain,  the 

medical marijuana “work[ed] great.”  Id.  As a result of taking medical marijuana, 

Claimant weaned himself off of Diazepam and OxyContin.  See R.R. at 92a.  On 

September  18,  2019,  a  UR  determination  declared  that  Claimant’s  medical 

marijuana  use  was  reasonable  and  necessary.    See  R.R.  at  12a;  WCJ  Dec.  at  5 

(Finding of Fact No. 5); R.R. at 130a; UR Determination at 2.  

On  October  28,  2019,  Claimant  filed  the  Penalty  Petition,  therein 

alleging  that  Employer  violated  the  WC  Act  by  failing  to  pay  for  his  medical 

marijuana treatment, despite that the UR Determination declared that such treatment 

was reasonable and necessary.  On October 15, 2020, the WCJ denied Claimant’s 

Penalty Petition.  The WCJ concluded that Claimant failed to prove that Employer’s 

refusal to pay for the medical marijuana treatment violated the WC Act.  Claimant 

appealed to the Board, which affirmed the WCJ’s decision.  Claimant appealed to 

this Court.6 

Relevant Law 

 

[i]n conducting [this Court’s] review, we are cognizant of 
the fact that, “the Pennsylvania [WC] Act is remedial in 

Initially, 

 

 

6 “Our review is limited to determining whether the WCJ’s findings of fact were supported 
by substantial evidence, whether an error of law was committed[,] or whether constitutional rights 
were violated.”  DiLaqua v. City of Phila. Fire Dep’t (Workers’ Comp. Appeal Bd.), 268 A.3d 1, 
4 n.5 (Pa. Cmwlth. 2020) (quoting Bristol Borough v. Workers’ Comp. Appeal Bd. (Burnett), 206 
A.3d 585, 595 n.6 (Pa. Cmwlth. 2019)). 

 

 

3 

 

 

 

Reifsnyder v. Workers’ Comp. Appeal Bd. (Dana Corp.), 883 A.2d 537, 541-42 (Pa. 

2005) (emphasis added).   

 

This Court has explained: 

nature  and  intended  to  benefit  the  worker,  and, 
therefore, the [WC] Act must be liberally construed to 
effectuate  its  humanitarian  objectives.”    Peterson  v. 
Workmen’s  Comp[.]  Appeal  Bd. 
(PRN  Nursing 
Agency), . . . 597 A.2d 1116, 1120 ([Pa.] 1991) (collecting 
cases).  Accordingly, “‘[b]orderline interpretations of [the] 
[WC]  Act  are  to  be  construed  in  [the]  injured  party’s 
favor.’”  Hannaberry [HVAC v. Workers’ Comp. Appeal 
Bd.  (Snyder,  Jr.)],  834  A.2d  [524,]  528  [(Pa.  2003)] 
[(]quoting  Harper  &  Collins  v.  Workmen’s  Comp[.] 
Appeal Bd. (Brown), . . . 672 A.2d 1319, 1321 ([Pa.] 1996) 
(citation omitted)[)].  

“It  is  accepted  that,  pursuant  to  [Section  301(c)  of]  the 
[WC]  [Act],  an  employer  is  only  liable  to  pay  for  a 
claimant’s  medical  expenses  that  arise  from  and  are 
caused  by  a  work-related  injury.    77  P.S.  §  411(1)[.]”  
Kurtz v. Workers’ Comp. Appeal Bd. (Waynesburg Coll.), 
794 A.2d 443, 447 (Pa. Cmwlth. 2002) (footnote omitted).  
Although  the  burden  is  initially  on  the  claimant  to 
establish that the injury is work-related, once the employer 
acknowledges liability for the injury, “the claimant is not 
required to continually establish that medical treatment of 
that  compensable  injury  is  causally  related  because  the 
injury for which the claimant is treating has already been 
established.”  Id.  Accordingly, thereafter, the employer 
has  the  burden  of  proving  that  a  medical  expense  is 
unreasonable,  unnecessary,  or  is  not  related  to  the 
accepted work injury.  

Rogele,  Inc.  v.  Workers’  Comp.  Appeal  Bd.  (Hall),  198  A.3d  1195,  1200  (Pa. 

Cmwlth. 2018) (emphasis added).  

Section 841(a) of the federal Controlled Substances Act (Federal Drug 

Act)7 provides, in relevant part, that “it shall be unlawful for any person knowingly 

 

 

 
7 21 U.S.C. §§ 801-971. 

 

4 

or intentionally -- [] to manufacture, distribute, or dispense, or possess with intent to 

manufacture, distribute, or dispense, a controlled substance[.]”  21 U.S.C. § 841(a) 

(emphasis  added).8    However,  Section  903  of  the  Federal  Drug  Act  expressly 

provides: 

21 U.S.C. § 903 (emphasis added). 

No  provision  of  this  subchapter  shall  be  construed  as 
indicating an intent on the part of the Congress to occupy 
the  field  in  which  that  provision  operates,  including 
criminal penalties, to the exclusion of any [s]tate law on 
the same subject matter which would otherwise be within 
the  authority  of  the  [s]tate,  unless  there  is  a  positive 
conflict between that provision of this subchapter and that 
[s]tate  law  so  that  the  two  cannot  consistently  stand 
together.  

Section 102 of the MMA provides: 

The General Assembly finds and declares as follows: 

(1) Scientific evidence suggests that medical marijuana 
is  one  potential  therapy  that  may  mitigate  suffering  in 
some patients and also enhance quality of life. 

(2)  The  Commonwealth  is  committed  to  patient  safety.  
Carefully regulating the program which allows access to 
medical  marijuana  will  enhance  patient  safety  while 
research into its effectiveness continues. 

(3) It is the intent of the General Assembly to: 

(i)  Provide  a  program  of  access  to  medical 
marijuana which balances the need of patients 
to have access to the latest treatments with the 
need to promote patient safety. 
(ii)  Provide  a  safe  and  effective  method  of 
delivery of medical marijuana to patients. 
(iii)  Promote  high  quality  research  into  the 
effectiveness and utility of medical marijuana. 

 

8  “Mari[j]uana”  is  classified  as  a  “Schedule  I”  controlled  substance.    21  U.S.C.  § 

812(c)(c)(10).  

 

5 

(4) It is the further intention of the General Assembly that 
any  Commonwealth-based  program to provide  access to 
medical marijuana serve as a temporary measure, pending 
[f]ederal  approval  of  and  access  to  medical  marijuana 
through traditional medical and pharmaceutical avenues. 

35 P.S. § 10231.102 (bold and italic emphasis added). 

Under the [MMA], “[n]ot[]withstanding any provision 
of  law  to  the  contrary,  use  or  possession  of  medical 
marijuana as set forth in [the] [MMA] is lawful within 
this Commonwealth.”  [Section 303(a) of the MMA, 35 
P.S.] § 10231.303(a).  Relevantly, medical marijuana may 
only  be  dispensed,  however,  to  patients  who  receive 
certifications from qualified physicians and possess a valid 
identification card issued by the Pennsylvania Department 
of Health.  See [Section 303(b)(1)(i) of the MMA, 35 P.S.] 
§  10231.303(b)(1)(i).    A  “patient”  is  a  Pennsylvania 
resident  who  has  an  enumerated  serious  medical 
condition  and  has  met  specified  requirements  for 
certification.    [Section  103  of  the  MMA,  35  P.S.]  § 
10231.103.    Notably,  there  are  many  other  regulatory 
requirements  and  restrictions  imposed  throughout  the 
[MMA].   

And of particular  relevance here,  the MMA contains 
an  immunity  provision  protecting  patients  from 
government  sanctions.    See  [Section  2103(a)  of  the 
MMA,] 35 P.S. § 10231.2103(a).  Per the statute, no such 
individual  “shall  be  subject  to  arrest,  prosecution  or 
penalty in any manner, or denied any right or privilege, 
. . . solely for lawful use of medical marijuana . . . or for 
any  other  action  taken  in  accordance  with  [the  MMA].”  
Id. 

Gass v. 52nd Jud. Dist., Lebanon Cnty., 232 A.3d 706, 708 (Pa. 2020) (italic and 

bold emphasis added; citation and footnote omitted).   

Moreover, 

in 

the  relevant  rider 

to 

the  federal  Consolidated 

Appropriations  Act  (CAA),  Congress  has  expressly  prohibited  the  federal 

Department of Justice (DOJ) from using allocated funds to prevent states, including 

Pennsylvania, from implementing their medical marijuana laws.  See CAA, 2021, 

 

 

6 

Pub. L. No. 116-260, § 531, 134 Stat. 1182, 1282-83 (2020).9  Specifically, Section 

531 of the CAA provides, in relevant part: 

None of the funds made available under [the CAA] to 
the  [DOJ]  may  be  used,  with  respect  to  any  of  the 
[s]tates  of  Alabama,  Alaska,  Arizona,  Arkansas, 
California,  Colorado,  Connecticut,  Delaware,  Florida, 
Georgia,  Hawaii,  Illinois,  Indiana,  Iowa,  Kentucky, 
Louisiana,  Maine,  Maryland,  Massachusetts,  Michigan, 
Minnesota, Mississippi, Missouri, Montana, Nevada, New 
Hampshire, New Jersey, New Mexico, New York, North 
Carolina,  North  Dakota,  Ohio,  Oklahoma,  Oregon, 
Pennsylvania,  Rhode  Island,  South  Carolina,  South 
Dakota,  Tennessee,  Texas,  Utah,  Vermont,  Virginia, 
Washington, West Virginia, Wisconsin, and Wyoming, or 
with 
the 
Commonwealth  of  the  Northern  Mariana  Islands,  the 
United  States  Virgin  Islands,  Guam,  or  Puerto  Rico,  to 
prevent any of them from implementing their own laws 
that  authorize  the  use,  distribution,  possession,  or 
cultivation of medical marijuana. 

the  District  of  Columbia, 

respect 

to 

Id. (emphasis added). 

Taking  into  consideration  the  above-cited  law,  the  Court  will  now 

address the issues Claimant has presented in this appeal. 

     

7 

 

9  Similar  language  has  been  included  in  appropriations  riders  dating  back  to  the  2015 
federal budget, and the list of states and territories with medical marijuana legislation has expanded 
over the years to reflect new enactments.  See CAA, 2020, Pub. L. No. 116-93, § 531, 133 Stat. 
2317, 2431 (2019); CAA, 2019, Pub. L. No. 116-6, § 537, 133 Stat. 13, 138 (2019); CAA, 2018, 
Pub. L. No. 115-141, § 538, 132 Stat. 348, 444-45 (2018); CAA, 2017, Pub. L. No. 115-31, § 537, 
131  Stat.  135,  228  (2017);  CCA,  2016,  Pub.  L.  No.  114-113,  §  542,  129  Stat.  2242,  2332-33 
(2015); Consolidated and Further Continuing Appropriations Act, 2015, Pub. L. No. 113-235, § 
538,  128  Stat.  2130,  2217  (2014).    Congress  has  approved  the  appropriations  rider  every  year 
thereafter. 

 

 

 

Legal Analysis 

Waiver 

Section 2102 of the MMA provides: “Nothing in [the MMA] shall be 

construed to require an insurer or a health plan, whether paid for by Commonwealth 

funds  or  private  funds,  to  provide  coverage  for  medical  marijuana.”    35  P.S.  § 

10231.2102.  Claimant first argues that because Employer did not raise Section 2102 

of the MMA as a defense - under the MMA an insurer is not required to provide 

coverage for medical marijuana - it was clear error for the Board to raise the issue 

sua sponte and to use it as the sole basis for denying the requested relief.  Claimant 

cites Dobransky v. Workers’ Compensation Appeal Board (Continental Baking Co.), 

701 A.2d 597 (Pa. Cmwlth. 1997), to support his position.   

Employer  rejoins  that  in  its  brief  it  filed  with  the  WCJ,  Employer 

argued  that  the  facts  of  the  present  case  were  indistinguishable  from  the  facts  in 

Heckman v. Workers’ Compensation Appeal Board (BBU, Inc.), 2020 WL 1817378 

(Pa. Work.Comp.App.Bd. No. A19-0491, filed March 3, 2020),10 and further cited 

the Board’s reasoning therein to support its specific reliance on Sections 2102 and 

2103(b)(3) of the MMA.11  Employer further retorts that there was no development 

of the argument before the WCJ because application of Sections 2102 and 2103 of 

the  MMA  involved  a  pure  question  of  law,  and  there  was  no  additional  factual 

evidence necessary to interpret and apply these MMA sections; thus, Claimant was 

in  no  manner  prejudiced.    Finally,  Employer  proclaims  that  since  the  defense  of 

 

10 Heckman is a Board decision, wherein the Board held: “Based on the plain language of 
the  [MMA],  we  conclude  that  an  insurer  or  employer  cannot  be  required  to  pay  for  medical 
marijuana.”  2020 WL 1817378 at *3.  Based on its ruling, the Board concluded that the employer’s 
failure to reimburse the claimant’s payment for medical marijuana to treat his work-related injury 
was  not  a  violation  of  the  WC  Act,  and  affirmed  the  WCJ’s  denial  of  the  claimant’s  penalty 
petition.  

11 35 P.S. §10231.2103(b)(3) (“Nothing in [the MMA] shall require an employer to commit 
any act that would put the employer or any person acting on its behalf in violation of  [f]ederal 
law.”). 

 

 

 

8 

Section 2102 of the MMA and its conflict with federal law was discussed on the 

record at the first WCJ hearing, the MMA provisions were at issue at all times. 

 

The  Dobransky  Court  held  that  the  claimant  therein  waived  his 

geographic unavailability defense because he raised it “for the first time before the 

Board,  and  neither  raised  that  issue  in  his  answer  to  [the  e]mployer’s  petition  to 

suspend[,]  nor  in  the  record  before  the  WCJ[.]”    Id.  at  600.    In  the  instant  case, 

Employer averred in its Answer to Claimant’s Penalty Petition: “[Employer] is not 

obligated to pay for medical marijuana under federal preemption grounds.”  R.R. at 

6a.    Further,  at  the  December  4,  2019  WCJ  hearing,  the  following  exchange 

occurred: 

[Employer’s  Counsel]:  I  do  have  an  objection  to  that, 
[y]our Honor.  The basis for the objection is with respect 
to the Penalty Petition.  The payment of medical marijuana 
is  not  being  denied  on  the  basis  of  reasonableness  and 
necessity,  but  based  on  the  [f]ederal  legal  issues,  the 
conflict with the Federal [Drug] Act and [Employer’s WC 
carrier’s] position is that it can’t voluntarily pay for it or 
risk potential violation of that. 

[WCJ]:  Well,  the  parties  are  going  to  have  to  brief  that 
issue. 

I’m  receiving Exhibit  C-7  [the  UR  Determination].    It’s 
relevant.    [Medical  marijuana  has]  been  found  to  be 
reasonable and necessary by a doctor appointed by . . . the 
Department of Labor and Industry Bureau of [WC]. 

R.R. at 76a.  Because  Employer  cited to and relied upon  Heckman  to support its 

position  that  Section  2102  of  the  MMA  did  not  require  it  to  pay  for  medical 

marijuana, as well as raised the federal preemption defense in its Answer and on the 

record, Employer did not waive Section 2102 of the MMA as a defense. 

9 

 

   

 

Section 2102 of the MMA - WC Carriers 

 

Claimant next argues that Section 2102 of the MMA does not apply to 

WC carriers because under The Insurance Company Law of 1921 (Insurance Law),12 

WC  carriers  are  deemed  to  be  insurers  of  employers,  not  of  injured  workers.  

Claimant proclaims that Section 651 of the Insurance Law is the only provision to 

address WC in any detail, and it states that WC insurance policies shall contain the 

agreement of the carrier to “pay all compensation and provide all medical, surgical 

and hospital attendance for which the insured employer may become liable . . . .”  40 

P.S. § 811.  Claimant further asserts that Section 301(a) of the WC Act13 makes clear 

that  the  ultimate  responsibility  to  pay  for  WC  benefits  lies  with  the  employer, 

whether it be through the employer’s self-insurance plan or WC insurance.  Claimant 

contends that, ultimately, the reason WC carriers are not insurers under the Insurance 

Law  is  because  the Pennsylvania  WC  Fee  Schedule  governs  payment of  medical 

bills in the WC system, not the Insurance Law, and all payment disputes are handled 

through the WC fee review system.   

 

Employer rejoins that an insurer is someone who agrees, by contract, 

to  assume  the  risk  of  another’s  loss  and  to  compensate  for  that  loss.    Employer 

further retorts that the WC Act itself defines a WC carrier as an insurer, which is 

defined as follows: 

[A]n entity subject to the [Insurance Law], including the 
State  Workmen’s  Insurance  Fund,  with  which  an 
employer  has  insured  liability  under  th[e  WC  A]ct 
pursuant  to  [S]ection  305  [of  the  WC  Act14]  or  a  self-
insured employer or fund exempted by the Department of 

 

12 Act of May 17, 1921, P.L. 682, as amended, 40 P.S. §§ 341-1007.15. 
13 77 P.S. § 431 (“Every employer shall be liable for compensation for personal injury 
to . . . each employe, by an injury in the course of his employment, and such compensation shall 
be paid in all cases by the employer . . . according to the schedule contained in [S]ections [306] 
and [307] of [the WC Act,]” 77 P.S. §§ 511-513, 562.) (emphasis added). 

14 77 P.S. § 501. 

 

10 

Labor and Industry pursuant to [S]ection 305 [of the WC 
Act]. 

Section 109 of the WC Act, 77 P.S. § 29.  Employer declares that the legislature 

considered WC carriers insurers in the WC Act and there is no reason to conclude 

that in the MMA’s context, the General Assembly intended an artificially narrow 

interpretation of the word. 

 

 

At the outset, 

[w]hen  terms  are  not  defined,  we  turn  to  the  rules  of 
statutory construction, which are applicable to statutes and 
ordinances  alike,  for  guidance.    Kohl  v.  New  Sewickley 
[Twp.]  Zoning  Hearing  [Bd.],  108  A.3d  961,  968  (Pa. 
Cmwlth.  2015).    “The  interpretation  of  a  statute  or 
ordinance presents this Court with a pure question of law, 
which is generally subject to plenary review.”  Id. 

The  primary  objective  of  statutory  interpretation  is  to 
determine the intent of the enacting legislation.   Section 
1921 of the Statutory Construction Act of 1972 (Statutory 
Construction  Act),  1  Pa.  C.S.  §  1921.    A  statute’s  plain 
language  generally  provides  the  best  indication  of 
legislative  intent,  and,  therefore,  statutory  construction.  
Uniontown  Newspapers, 
[Pa.]  Dep[’t]  of 
Corr[.], . . . 243  A.3d  19,  32  ([Pa.]  2020).    “Words  and 
phrases shall be construed according to rules of grammar 
and  according  to  their  common  and  approved  usage.”  
Section 1903 of the Statutory Construction Act, 1 Pa. C.S. 
§ 1903.  “Also, where a court needs to define an undefined 
term, it may consult dictionary definitions for guidance.”  
THW [Grp.], LLC v. Zoning [Bd.] of Adjustment, 86 A.3d 
330, 336 (Pa. Cmwlth. 2014). 

Inc.  v. 

Sheppleman  v.  City  of  Chester  Aggregated  Pension  Fund,  271  A.3d  938  (Pa. 

Cmwlth. 2021).   

The MMA does not define the word insurer.  Black’s Law Dictionary 

defines  “insurer”  as  “[s]omeone  who  agrees,  by  contract,  to  assume  the  risk  of 

another’s loss and to compensate for that loss[,]” and the WC carrier in the instant 

matter has agreed by contract to assume Employer’s risks that arise under the WC 

 

 

11 

Act, and thus meets the definition of insurer.  Black’s Law Dictionary 962 (11th ed. 

2019).  Notwithstanding that payment of medical bills in the WC system is governed 

by the Pennsylvania WC Fee Schedule, see 77 P.S. § 431, and all payment disputes 

are handled through the WC fee review system, WC carriers are regulated by and 

must  adhere  to  the  Insurance  Law.    See  77  P.S.  §  29.    This  Court  agrees  with 

Employer that the General Assembly has given no indication that the word insurer 

should be read differently in the context of the MMA.  Accordingly, because WC 

carriers are insurers under the Insurance Law, this Court cannot hold that they are 

not insurers for purposes of the MMA. 

Section 2102 of the MMA - Coverage   

Claimant next argues that Section 2102 of the MMA only prohibits an 

insurer  or  health  plan  from  being  compelled  “to  provide  coverage  for  medical 

marijuana.”    35  P.S.  §  10231.2102  (emphasis  added).    Claimant  maintains  that 

coverage  refers  to  the  insurer  paying  the  provider  directly  for  a  medical  service, 

while reimbursement signifies the insurer paying the patient for the costs of medical 

treatment already incurred and paid.  Employer rejoins that the General Assembly 

included Sections 2102 and 2103 of the MMA to avoid a possible conflict between 

the MMA and the Federal Drug Act as it pertains to employers/insurers.  Employer 

asserts  that  the  MMA’s  plain  language  exempts  employers/insurers  from  being 

required to cover medical marijuana.   

It  is  axiomatic  that  we  may  not  add  statutory  language 
where we find the extant language somehow lacking: 

Under the doctrine of expressio unius est exclusio 
alterius,  the  inclusion  of  a  specific  matter  in  a 
statute  implies  the  exclusion  of  other  matters.  
Similarly, [the Pennsylvania Supreme] Court has 
long  recognized  that  as  a  matter  of  statutory 
interpretation,  although  one  is  admonished  to 

12 

 

 

 

listen attentively to what a statute says[,] one must 
also listen attentively to what it does not say. 

[Thompson v. Thompson, 223 A.3d 1272, 1277 (Pa. 2020) 
(cleaned up).]  “[T]he court may not supply omissions in 
the statute when it appears that the matter may have been 
intentionally omitted.” 

Sivick v. State Ethics Comm’n, 238 A.3d 1250, 1264 (Pa. 2020) (emphasis added; 

footnote omitted) (quoting Commonwealth v. Spotz, 716 A.2d 580, 590 (Pa. 1998)). 

 

Section 2102 of the MMA, entitled Conflict, provides: “Nothing in [the 

MMA] shall be construed to require an insurer or a health plan, whether paid for by 

Commonwealth funds or private funds, to provide coverage for medical marijuana.”  

35 P.S. § 10231.2102 (emphasis added). 

As 
Justice  Felix  Frankfurter  cogently  observed, 
“legislation  when  not  expressed  in  technical  terms  is 
addressed to the common run of men and is therefore to be 
understood  according  to  the  sense  of  the  thing,  as  the 
ordinary  man  has  a  right  to  rely  on  ordinary  words 
addressed to him.”  Addison v. Holly Hill Fruit Prod[s.], 
322 U.S. 607, 618 . . . (1944).  Here, the terms [coverage] 
and [reimbursement] are not technical terms which have 
acquired  a  peculiar  meaning  within  the  context  of  the 
[MMA],  and,  thus,  we  ascertain  their  meaning  in 
accordance  with  their  common  and  approved  usage.  
Sivick, 238 A.3d at 1259.  As [the Pennsylvania Supreme] 
Court  has  explained,  in  determining  such  usage,  it  is 
proper  to  consult  dictionaries.    Bruno  v.  Erie  Ins[.] 
Co., . . . 106 A.3d 48, 75 ([Pa.] 2014). 

Greenwood Gaming & Ent., Inc. v. Commonwealth, 263 A.3d 611, 620 (Pa. 2021). 

“Coverage”  is  defined  as:  “Inclusion  of  a  risk  under  an  insurance 

policy; [t]he risks within an insurance policy.”  Black’s Law Dictionary 451 (11th 

ed.  2019).    However,  Black’s  Law  Dictionary  defines  “[r]eimbursement”  as:  “1. 

Repayment.  2. Indemnification.”  Id. at 1539.  Here, while the MMA provides that 

an insurer is not required to include medical marijuana as a risk under its insurance 

policy, there is no language in the MMA precluding a WC carrier from repaying a 

 

 

13 

claimant for his out-of-pocket medical treatment cost which has been found to be 

reasonable and necessary for his work-related injury.15  Accordingly, because the 

plain language of Section 2102 of the MMA is limited to not requiring insurers to 

provide coverage for medical marijuana, and the WC Act mandates WC carriers to 

reimburse claimants for out-of-pocket costs of medical treatment, which has been 

found to be reasonable and necessary for their work-related injury, the MMA does 

not command otherwise.   

 

Further, Section 2103 of the MMA, entitled Protections for Patients and 

Caregivers, provides in subsection (a) that no individual “shall be . . . denied any 

right  or  privilege  .  .  .  solely  for  lawful  use  of  medical  marijuana.”    35  P.S.  § 

10231.2103(a)  (bold  and  italic  emphasis  added).    Section  301(a)  of  the  WC  Act 

mandates: “Every employer shall be liable for compensation for personal injury to, 

.  .  .  each  employe,  by  an  injury  in  the  course  of  his  employment,  and  such 

 

15  If  the  General  Assembly  intended  for  medical  marijuana  expenses  not  to  be 
reimbursable,  it  would  have  expressly  included  the  word  reimbursement,  as  other  states  have 
explicitly done, but it did not.  See Fla. Stat. § 381.986(15)(f) (“Marijuana . . . is not reimbursable 
.  .  .  .”);  410  Ill.  Comp.  Stat.  130/40(d)  (“Nothing  in  this  [a]ct  may  be  construed  to  require  a 
government medical assistance program, employer, property and casualty insurer, or private health 
insurer to reimburse a person for costs associated with the medical use of cannabis.”); Mich. Comp. 
Laws § 418.315a (“[A]n employer is not required to reimburse or cause to be reimbursed charges 
for medical mari[j]uana treatment.”); Mont. Code Ann. § 39-71-407(6)(c) (“Nothing in this chapter 
may be construed to require an insurer to reimburse any person for costs associated with the use 
of [medical] marijuana . . . .”); Okla. Stat. tit. 63 § 427.8(I) (“Nothing in this act  . . . shall . . . 
[r]equire  an  employer,  a  government  medical  assistance  program,  private  health  insurer,  [WC] 
carrier or self-insured employer providing [WC] benefits to reimburse a person for costs associated 
with  the  use  of  medical  marijuana[.]”);  R.I.  Gen.  Laws  §  21-28.6-7(b)(1)  (excepting  from  the 
requirement to reimburse medical marijuana costs a “[WC] insurer, workers’ compensation group 
self-insurer, or employer self-insured for workers’ compensation”); Utah Code Ann. § 26-61a-112 
(“Nothing in this chapter requires an insurer, a third-party administrator, or an employer to pay or 
reimburse for cannabis, a cannabis product, or a medical cannabis device.”).  With the exception 
of Oklahoma and Utah, all of the above statutes were enacted prior to Pennsylvania’s MMA. 

14 

     

 

compensation shall be paid in all cases by the employer,” 77 P.S. § 431 (emphasis 

added),  and  Section  306(f.1)(1)(i)  of  the  WC  Act  requires:  “The  employer  shall 

provide  payment  in  accordance  with  this  section  for  reasonable  surgical  and 

medical services,  . . .  medicines and supplies,  as and when needed.”  77 P.S.  § 

531(1)(i)  (emphasis  added).    The  MMA  specifically  mandates  that  no  medical 

marijuana patients be denied any rights for lawful use of medical marijuana and the 

WC  Act  provides  employees  a  statutory  right  to  WC  medical  expenses  that  are 

reasonable and necessary to treat a work injury; therefore, if this Court was to agree 

with Employer, it would be removing those express protections from the MMA and 

the WC Act.   

 

The  Pennsylvania  Supreme  Court  has  instructed  that  “[w]e  presume 

that when enacting legislation, the General Assembly is aware of the existing law.”  

In Re Est. of Easterday, 209 A.3d 331, 341-42 (Pa. 2019).  Thus, herein we presume, 

as we must, that the General Assembly was aware of the WC Act’s mandate that 

employers pay for employees’ reasonable and necessary medical treatment of work 

injuries  when  it  authorized  medical  marijuana  as  a  medical  treatment.    See 

Easterday.  The MMA in no manner alters these preexisting employment rights and 

obligations.    In  fact,  in  the  MMA’s  policy  declaration,  the  General  Assembly 

expressly  declared:  “Scientific  evidence  suggests  that  medical  marijuana  is  one 

potential therapy that may mitigate suffering in some patients and also enhance 

quality of life.”  35 P.S. § 10231.102 (emphasis added).  Further, the MMA defines 

a  serious  medical  condition  as  including  “[s]evere  chronic  or  intractable  pain  of 

neuropathic origin or severe chronic or intractable pain.”  35 P.S. § 10231.103(16).  

Intractable  pain  is  defined  as  “[c]hronic  pain  which  is  difficult  or  impossible  to 

manage  with  standard  interventions.”    Medical  Dictionary,  2009;16  see  also 

16 https://medical-dictionary.thefreedictionary.com/intractable+pain (last visited Mar. 16, 

2023). 

 

 

15 

McGraw-Hill Concise Dictionary of Modern Medicine, 200217 (“[P]ain that does not 

respond to appropriate doses of opioid analgesics.”).  Thus, the General Assembly 

explicitly intended Commonwealth residents suffering from intractable pain to have 

the benefit of this therapy, and at the same time chose not to limit claimants from 

receiving their statutory rights.         

“Moreover, we presume the General Assembly did not intend a result 

that is ‘absurd, unreasonable, or impossible to execute.’”  MERSCORP, Inc. v. Del. 

Cnty., 207 A.3d 855, 861 (Pa. 2019) (quoting In re Concord Twp. Voters, 119 A.3d 

335,  341-42  (Pa.  2015)).    Given  the  General  Assembly’s  clear  declaration  and 

intention in enacting the MMA, and the MMA’s unambiguous statutory language, it 

is free from doubt that the medical marijuana system the General Assembly created 

for the well-being and safety of patients, including claimants, was intended for them 

to have access to the latest medical treatments.  Any other interpretation would lead 

to an unintended, absurd result.18  See MERSCORP.    

Interpreting the MMA as Employer suggests - to prohibit WC carriers 

from reimbursing claimants who lawfully use medical marijuana to treat their work-

related injuries - would also undermine the General Assembly’s  express intent to 

provide  Commonwealth  citizens  who  are  patients  “access  to  medical  marijuana 

which balances the need of patients to have access to the latest treatments with the 

need to promote patient safety[,]” 35 P.S. §10231.102(3)(i) (all emphasis added).  

Employer’s  interpretation  is  clearly  contrary  to  the  Statutory  Construction  Act’s 

declaration that “[t]he object of all interpretation and construction of statutes is to 

17 https://medical-dictionary.thefreedictionary.com/intractable+pain (last visited Mar. 16, 

 

18 Accepting Employer’s argument presumes the General Assembly intentionally carved 
out  a  special  class  of  employees  who  are  prescribed  medical  marijuana  for  their  work-related 
injuries,  but  unlike  other  injured  employees  are  not  paid  for  treatment  of  their  work-related 
injuries.    

2023). 

 

 

 

 

16 

ascertain and effectuate the intention of the General Assembly.”  1 Pa.C.S. § 1921(a).  

Accordingly,  this  Court  rules  that  coverage  is  different  and  distinct  from 

reimbursement and while the plain language of Section 2102 of the MMA states that 

insurers cannot be required to provide coverage for medical marijuana, there is no 

statutory  language  which  prohibits  insurers  from  reimbursing  claimants  who 

lawfully use medical marijuana to treat an accepted work injury when such treatment 

is medically reasonable and necessary.19 

The Board - Federal Law 

Lastly, Claimant argues that the Board erred by failing to address, and 

reverse, the WCJ’s sole basis for denying the Penalty Petition - that reimbursement 

would cause the WC carrier to violate federal law.  Employer rejoins that the WC 

Act  is  silent  on  the  issue  of  an  employer/insurer’s  obligation  to  pay  for  medical 

marijuana or reimburse for its expense.  Employer maintains that the issue is one of 

first impression in Pennsylvania, and beyond the Board’s jurisdiction. 

The Board opined: 

[D]espite  Claimant’s  medical  marijuana  being  found 
reasonable  and  necessary  through  the  UR  process,  that 
does not negate the fact [that] Section 2102 of the MMA 
provides[:] “Nothing in [the MMA] shall be construed to 

 

19 The Dissent submits that coverage and reimbursement are two sides of the same coin 
and  because  Section  2102  of  the  MMA  states  that  nothing  in  the  MMA  shall  be  construed  to 
require an insurer or a health plan to provide coverage for medical marijuana, the MMA cannot 
be read to mandate reimbursement for prescribed medical marijuana provided to WC claimants 
for the medically reasonable and necessary treatment of a work-related injury.  However, the MMA 
does not prohibit coverage for medical marijuana, and the WC Act requires employers to pay for 
the medically reasonable and necessary treatment of a work-related injury.  Thus, even if coverage 
is interpreted to include reimbursement, there is no language in the MMA which prohibits insurers 
from  providing  coverage  for  prescribed  medical  marijuana  provided  to  WC  claimants  for  the 
treatment  of  their  work-related  injury.    See  Appel  v.  GWC  Warranty  Corp.  (Workers’  Comp. 
Appeal Bd.), ___ A.3d ___ (Pa. Cmwlth. No. 824 C.D. 2021, filed Mar. 17, 2023).       

 

17 

 

 

 

 

require  an  insurer  or  a  health  plan,  whether  paid  for  by 
Commonwealth  funds  or  private  funds,  to  provide 
coverage for medical marijuana.”  35 P.S. § 10231.2102.  
A  finding  that  the  medical  marijuana  is  reasonable  or 
necessary, or even causally related to the work injury, does 
not supersede the plain language of the MMA.[FN]2 

the  marijuana. 

[FN]2  [The  Board]  note[s]  the  WCJ  reasoned  that 
marijuana is an illegal substance under federal law, 
and thus, [Employer] was not obligated to commit 
an illegal federal offense by reimbursing Claimant 
because 
for 
Pennsylvania law already precludes insurers from 
being obligated to pay for medical marijuana, [the 
Board]  need  not  base  [its]  decision  on  any 
interpretation of federal law, of which [it is] not 
in  a  position  to  interpret  as  a  Pennsylvania 
administrative board. 

  However, 

Board Dec. at 4 (emphasis added).  Because the Board was able to resolve the issue 

based on Pennsylvania law, albeit erroneously, it is of no moment that the Board did 

not decide the federal law issue.   

 

Notwithstanding, Section 2103 of the MMA mandates: “Nothing in [the 

MMA] shall require an employer to commit any act that would put the employer or 

any person acting on its behalf[, i.e., WC carriers,] in violation of [f]ederal law.”  35 

P.S. §10231.2103.  Section 841(a) of the Federal Drug Act provides that “it shall be 

unlawful for any person knowingly or intentionally -- [] to manufacture, distribute, 

or  dispense,  or  possess  with  intent  to  manufacture,  distribute,  or  dispense,  a 

controlled substance[.]”  21 U.S.C. § 841(a).  Because reimbursing Claimant for his 

out-of-pocket expenses for his lawful use of medical marijuana as a reasonable and 

necessary treatment for his work injury would not require Employer’s WC carrier 

“to  manufacture,  distribute,  or  dispense,  or  possess  with  intent  to  manufacture, 

distribute, or dispense, a controlled substance,” 21 U.S.C. § 841(a), Employer’s WC 

carrier  would  not  violate  the  Federal  Drug  Act,  or  be  at  risk  of  facing  federal 

prosecution by doing so.  See also Appel v. GWC Warranty Corp. (Workers’ Comp. 

 

18 

Appeal Bd.), ___ A.3d ___, ___ (Pa. Cmwlth. No. 824 C.D. 2021, filed Mar. 17, 

2023), slip op. at 11 (“[S]ince [the e]mployer is not prescribing marijuana, but rather 

reimbursing  [the  c]laimant  for  his  lawful  use  thereof,  [the  e]mployer  is  not  in 

violation of the Federal Drug Act.”).20  

 

 

 

 

Conclusion 

Employer  preserved  the  defense  that  Section  2102  of  the  MMA 

prevented the Board from compelling Employer to reimburse Claimant for his lawful 

use of medical marijuana.  Further, notwithstanding that Section 2102 of the MMA 

applies to WC carriers, because the plain language of Section 2102 of the MMA is 

limited  to  not  requiring  insurers  to  provide  coverage  for  medical  marijuana,  and 

coverage is different and distinct from reimbursement, there is no statutory language 

which  prohibits  insurers  from  reimbursing  claimants  who  lawfully  use  medical 

marijuana  to  treat  an  accepted  work  injury  when  such  treatment  is  medically 

reasonable and necessary.   

Given the WC Act’s “humanitarian objectives,” Reifsnyder, 883 A.2d 

at 542 (quoting Peterson, 597 A.2d at 1120), the Federal Drug Act’s provision that 

“it shall be unlawful for any person knowingly or intentionally -- [] to manufacture, 

distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, 

a  controlled  substance[,]”  21  U.S.C.  §  841(a)  (emphasis  added),  the  General 

Assembly’s  express  intent  to  provide  Commonwealth  citizens  who  are  patients 

 

20 The Dissent posits  that although the MMA legalizes the use of medical  marijuana in 
Pennsylvania,  a  provider  still  cannot  legally  dispense  marijuana  under  federal  law;  therefore, 
because it is illegal, such treatment cannot be reasonable under the WC Act.  However, Section 
306(f.1)(1)(i) of the WC Act requires: “The employer shall provide payment in accordance with 
this section for reasonable surgical and medical services, . . . medicines and supplies, as and when 
needed.”  77 P.S. § 531(1)(i).  The fact that dispensing marijuana is illegal under federal law does 
not transform a medically reasonable and necessary treatment under the WC Act for a work injury 
to a medically unreasonable and unnecessary treatment.  Such a determination would eviscerate 
the entire MMA. 

19 

“access to medical marijuana,” 35 P.S. § 10231.102(3)(i) (emphasis added), “the 

MMA[’s]  contain[ment  of]  an  immunity  provision  protecting  patients  from 

government sanctions[,]” Gass, 232 A.3d at 708, and that “no [] individual ‘shall be 

. . . denied any right or privilege, . . . solely for lawful use of medical marijuana . . . 

[,]”  id.,  this  Court  concludes  that  the  Board  erred,  and  this  Court  rules  that 

Employer’s  failure  to  reimburse  Claimant’s  out-of-pocket  costs  for  medical 

marijuana to treat his work-related injury is a violation of the WC Act.   

For all of the above reasons, the portion of the Board’s order denying 

Claimant’s Penalty Petition is reversed, and the matter is remanded to the Board to 

remand to the WCJ to determine whether a penalty should be imposed.21 

 
  

 
 

_________________________________ 
ANNE E. COVEY, Judge 

 
 

 

 

   

 

 

21 “[T]he assessment of penalties[] and the amount of penalties imposed are matters within 
the WCJ’s discretion.”  Baumann v. Workers’ Comp. Appeal Bd. (Kellogg Co.), 147 A.3d 1283, 
1293  (Pa.  Cmwlth.  2016)  (emphasis  omitted)  (quoting  Gumm  v.  Workers’  Comp.  Appeal  Bd. 
(Steel), 942 A.2d 222, 232 (Pa. Cmwlth. 2008)).  However, “the imposition of a penalty is not 
required even if[, as here,] a violation of the Act is apparent on the record.”  Farance v. Workers’ 
Comp. Appeal Bd. (Marino Brothers, Inc.), 774 A.2d 785, 789 (Pa. Cmwlth. 2001).    

20 

IN THE COMMONWEALTH COURT OF PENNSYLVANIA 

eresa L. Fegley, as Executrix  

of the Estate of Paul Sheetz, 
Petitioner 
 
 
 
 
 
 
v. 
 
 
 
 
Firestone Tire & Rubber (Workers’ 
Compensation Appeal Board), 
Respondent 
 
 

 
 
 

 

 
 
 
 
 
 
 
 
 

: 
: 
: 
: 
: 
: 
: 
:  No. 680 C.D. 2021 
: 

 

O R D E R 
 

AND NOW, this 17th day of March, 2023, the portion of the Workers’ 

Compensation  (WC)  Appeal  Board’s  (Board)  June  17,  2021  order  denying 

Claimant’s Petition for Penalties is REVERSED.  The matter is REMANDED to the 

Board  to  remand  to  the  WC  Judge  to  determine  what,  if  any,  penalty  should  be 

imposed. 

Jurisdiction is relinquished. 

 
  

 
 

 
 

_________________________________ 
ANNE E. COVEY, Judge 

  T

 

 

     

 

IN THE COMMONWEALTH COURT OF PENNSYLVANIA 

eresa L. Fegley, as Executrix 

 

of the Estate of Paul Sheetz, 
 
 
Petitioner 
 
 
 
v. 
 
Firestone Tire & Rubber (Workers’ 
Compensation Appeal Board), 
Respondent 
 

 

 

: 
: 
: 
: 
: 
: 
: 
:  No. 680 C.D. 2021   
:  Argued:  September 14, 2022 

  
  

EFORE:  HONORABLE RENÉE COHN JUBELIRER, President Judge 

HONORABLE PATRICIA A. McCULLOUGH, Judge 
HONORABLE ANNE E. COVEY, Judge 
HONORABLE MICHAEL H. WOJCIK, Judge 
HONORABLE CHRISTINE FIZZANO CANNON, Judge 
HONORABLE ELLEN CEISLER, Judge 
HONORABLE STACY WALLACE, Judge 

ONCURRING AND DISSENTING OPINION  

BY JUDGE FIZZANO CANNON 
 

 

 

 

FILED: March 17, 2023  

Like most other states, Pennsylvania has enacted legislation legalizing 

and regulating the production, sale, and use of medical marijuana.  In Pennsylvania, 

that legislation is the Medical Marijuana Act (MMA).1  Although its sale remains 

illegal under federal law and its use has not yet been approved by the United States 

Food  and  Drug  Administration  (FDA),  medical  marijuana  is  widely  approved  in 

individual states for a variety of medical purposes, including alleviation of chronic 

pain as an alternative to the use of opioids. 

1 Act of April 17, 2017, P.L. 84, as amended, 35 P.S. §§ 10231.101-10231.2110. 

 

 

   T

  B

 
 
 

  C

 

 

The interplay of federal and state laws relating to medical marijuana 

has created a legal morass that cries out for clarification at the federal level.  The 

Massachusetts Supreme Court has observed that  

the current legal landscape of medical marijuana law may, 
at best, be described as a hazy thicket.  Marijuana is illegal 
at the [f]ederal level and has been deemed under [f]ederal 
law to have no medicinal purposes, but . . . a majority of 
. . . [s]tates, have legalized medical marijuana and created 
regulatory  schemes  for  its  administration  and  usage.  
Complicating and confusing matters further, Congress has 
placed budgetary restrictions on the ability of the United 
States Department of Justice to prosecute individuals for 
marijuana  usage  in  compliance  with  a  [s]tate  medical 
marijuana  scheme,  and  the  Department  of  Justice  has 
issued,  revised,  and  revoked  memoranda  explaining  its 
marijuana enforcement practices and priorities, leaving in 
place no clear guidance. 

Wright’s  Case,  156  N.E.3d  161,  165  (Mass.  2020).    Nonetheless,  state  courts, 

including this Court, must address this interplay when necessary, as here, despite its 

current unsettled status. 

Medical  research  concerning  the  efficacy  and  safety  of  medical 

marijuana is evolving, and this writing expresses no opinion concerning those issues.  

However, in the workers’ compensation (WC) context, and under the current state 

and federal laws, I cannot conclude that the MMA requires a WC insurance carrier 

to pay a claimant’s costs incurred in purchasing medical marijuana.  Therefore, for 

the  following  reasons,  I  respectfully  disagree  with  the  majority’s  conclusion  that 

Firestone Tire & Rubber or its insurer (Employer) must reimburse Teresa L. Fegley, 

as  Executrix  of  the  Estate  of  Paul  Sheetz  (Claimant),  for  medical  marijuana 

prescribed for pain resulting from a work-related injury. 

 

CFC - 2 
 

I. The MMA Does Not Require an Insurer to Pay for Medical Marijuana 

Under the MMA’s declaration of policy, “[t]he General Assembly finds 

and declares as follows”: 

(1) Scientific evidence suggests that medical marijuana is 
one potential therapy that may mitigate suffering in some 
patients and also enhance quality of life. 

(2)  The  Commonwealth  is  committed  to  patient  safety. 
Carefully regulating the program which allows access to 
medical  marijuana  will  enhance  patient  safety  while 
research into its effectiveness continues. 

(3) It is the intent of the General Assembly to: 

(i)  Provide  a  program  of  access  to  medical 
marijuana  which  balances  the  need  of  patients  to 
have access to the latest treatments with the need to 
promote patient safety. 

(ii) Provide a safe and effective method of delivery 
of medical marijuana to patients. 

into 
(iii)  Promote  high  quality  research 
effectiveness and utility of medical marijuana. 

the 

(4) It is the further intention of the General Assembly that 
any  Commonwealth-based  program to provide  access to 
medical marijuana serve as a temporary measure, pending 
Federal  approval  of  and  access  to  medical  marijuana 
through traditional medical and pharmaceutical avenues. 

Section 102 of the MMA,  35 P.S. § 10231.102.  Thus, while  seeking to advance 

medical  research  and  enhance  quality  of  life,  the  MMA  also  reflects  caution  in 

enacting “a temporary measure” regarding access to medical marijuana, as well as 

in “balanc[ing] the need of patients to have access to the latest treatments with the 

need to promote patient safety.”  Id. 

Section 2102 of the MMA, relating to insurers, provides:  “Nothing in 

this act shall be construed to require an insurer or a health plan, whether paid for by 

CFC - 3 
 

Commonwealth funds or private funds, to provide coverage for medical marijuana.”  

35 P.S. § 10231.2102.  The WC Appeal Board (Board) correctly concluded in this 

case  that  the  plain  language  of  Section  2102  does  not  require  reimbursement  for 

medical marijuana prescribed to a claimant to treat a work injury.   

Section 2102 does not expressly address “reimbursement” of medical 

marijuana costs, but rather, provides that the MMA cannot be construed to require 

an insurer2 to provide “coverage” of such costs.  35 P.S. § 10231.2102.  However, 

“coverage” is not defined in the MMA.  Further, the Board did not address whether 

“coverage” and “reimbursement” are synonymous under the MMA. 

In  determining  the  meanings  of  statutory  terms,  Section  1903  of  the 

Statutory  Construction  Act  of  1972  (Statutory  Construction  Act)3  provides,  in 

pertinent  part,  that  “[w]ords  and  phrases  shall  be  construed  according to  rules  of 

grammar and according to their common and approved usage . . . .”  1 Pa.C.S. § 1903.  

In addition, Section 1921 of the Statutory Construction Act provides, in pertinent 

part: 

(a)  Object  and scope  of  construction of statutes.  —  The 
object of all interpretation and construction of statutes is 
to  ascertain  and  effectuate  the  intention  of  the  General 
Assembly.  Every statute shall be construed, if possible, to 
give effect to all its provisions. 

(b)  Unambiguous  words  control  construction.  —  When 
the words of a statute are clear and free from all ambiguity, 
the letter of it is not to be disregarded under the pretext of 
pursuing its spirit. 

2 I agree with the majority that WC insurance carriers are insurers under the MMA.  Accord 
Wright’s Case, 156 N.E.3d 161, 176 (Mass. 2020) (explaining that “[WC] is a form of insurance”). 

. . . . 

 

3 1 Pa.C.S. §§ 1501-1991. 

CFC - 4 
 

1 Pa.C.S. § 1921(a) & (b).    With limited exceptions not  implicated here,  Section 

1928 of the Statutory Construction Act provides that “all . . . provisions of a statute 

shall be liberally construed to effect their objects and to promote justice.”  1 Pa.C.S. 

§ 1928.   

As the MMA does not define “coverage” and that term does not have a 

specialized  meaning,  it  should  be  given  its  ordinary  meaning.    The  Merriam-

Webster.com  Dictionary  defines  “coverage”  as,  in  pertinent  part,  “inclusion 

within  the  scope  of  an  insurance  policy  or  protective  plan”  or  “all  the  risks 

covered  by  the  terms  of  an  insurance  contract  .  .  .  .”    https://www.merriam-

webster.com/dictionary/coverage (last visited Mar. 16, 2023).   

The  majority  echoes  Claimant’s  argument  that  “coverage”  is  not  the 

same as “reimbursement,” such that the MMA’s statement that it does not require 

“coverage” for medical marijuana expenses does not preclude requiring Employer 

to reimburse Claimant for those expenses.  I respectfully disagree. 

Insurance  reimbursement  is  when  one  is  reimbursed  in 
accordance  with  an  insurance  policy  for  expenses  that 
have been incurred and are covered under the policy . . . .  
Some  types  of  insurance  reimbursement  are  paid  to  the 
insured person under the insurance policy.  Other types of 
reimbursements  are  paid  directly  to  the  provider  of  a 
certain good or service after the provider has submitted an 
assignment  of  benefits  document 
the  insurance 
company. 

to 

. . . . 

Each  insurance  policy  has  specific  items  for  which 
expenses are covered, not covered or covered in part.  It is 
the insured or the assignee’s responsibility to provide the 
insurance  company  with  the  appropriate  information  so 
that the insurance company can determine what is or is not 
covered  under  the  particular  policy.  The  insurance 
company  will  provide  an  explanation  of  benefits  that 

CFC - 5 
 

documents  how  reimbursed  expenses  were  calculated. 
This  explanation  of  benefits  document  is  the  insurance 
company’s response to the insured or its assignee’s request 
for reimbursement. 

R. Kimball, “What is Insurance Reimbursement?” (Aug. 6, 2022) (emphasis added).4  

In other words, “coverage” is the extent of the insurer’s potential liability under an 

insurance  policy;  “reimbursement”  is  repayment  of  claims  for  which  there  is 

“coverage”  under  the  policy.    Accord  Babcock  &  Wilcox  Co.  v.  Am.  Nuclear 

Insurers, 131 A.3d 445, 449 (Pa. 2015) (citing a trial court order  “providing that 

Insurer shall reimburse Insureds if the Insureds establish that the settlement was ‘fair 

and  reasonable’  unless  Insurer  establishes  that  ‘there  is  no  coverage’  under  the 

policies . . . ”).  “Coverage” and “reimbursement” are two sides of the same coin:  if 

there  is  coverage  for  a  claim,  the  insurer  must  provide  reimbursement.    Thus,  it 

makes no sense for Claimant to argue that reimbursement may be required where 

coverage may not. 

Nonetheless,  Claimant  argues  that  because  the  WC  Act5  is  to  be 

liberally construed, the MMA should not be interpreted to preclude reimbursement 

that is otherwise required by the WC Act.  The most obvious flaw in this argument 

is that prior to the enactment of the MMA, there was no legal medical marijuana in 

Pennsylvania, and therefore, no reimbursement was required for it under the WC 

Act.  Cf. Wright’s Case, 156 N.E.3d at 171 (explaining that before Massachusetts 

enacted its medical marijuana law, “marijuana was illegal under both Massachusetts 

and [f]ederal law and was not a reasonable medical expense reimbursable” under a 

WC statute requiring an employer to pay for a claimant’s reasonable and necessary 

 

(last visited Mar. 16, 2023). 

4  Available  at  https://www.smartcapitalmind.com/what-is-insurance-reimbursement.htm 

5 Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2701-2710. 

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medical expenses).  The MMA legalized medical marijuana for the first time and in 

a limited manner; in doing so, it made clear that it was not to be construed to require 

insurance coverage of medical marijuana.  35 P.S. § 10231.2102.  This makes sense, 

inasmuch as medical marijuana has not yet been approved by the FDA as safe and 

effective for use in medical treatment, and its use is not legal under federal law.6  In 

any event, the legislature, not the courts, must effect any change in the MMA’s stated 

policy and the balance struck regarding insurance coverage.  Therefore, I believe 

this Court is constrained to agree with the Board that the MMA cannot be read to 

mandate  reimbursement  for  prescribed  medical  marijuana  provided  to  WC 

claimants. 

 

 

6 In Wright’s Case, the Massachusetts Supreme Court concluded that a provision in that 
state’s medical marijuana law providing that insurers could not be required to reimburse for the 
costs of medical marijuana was “controlling and not overridden by the general language in the 
[WC] laws requiring [WC] insurers to reimburse for reasonable medical expenses.”  156 N.E.3d 
at 165.  That court observed:  

It is one thing for a [s]tate statute to authorize those who want to use 
medical marijuana, or provide a patient with a written certification 
for  medical  marijuana,  to  do  so  and  assume  the  potential  risk  of 
[f]ederal prosecution; it is quite another for it to require unwilling 
third  parties  to  pay  for  such  use  and  risk  such  prosecution.    The 
drafters of the medical marijuana law recognized and respected this 
distinction. 

Id. at 166.  See also id. at 173 (stating that “[i]t is one thing to voluntarily assume a risk of [f]ederal 
prosecution; it is another to involuntarily have such a risk imposed upon you”); Bourgoin v. Twin 
Rivers Paper Co., 187 A.3d 10, 21-22 (Me. 2018) (suggesting that “the magnitude of the risk of 
criminal prosecution is immaterial . . . .  Prosecuted or not, the fact remains that [an insurer] would 
be forced to commit a federal crime if it complied with the [reimbursement] directive of the  [WC] 
[b]oard.”). 

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II. Alleged Waiver of Employer’s MMA Defense 

I concur in the majority’s conclusion that Employer did not waive its 

ability to assert a defense of illegality.  In addition, I believe the defense is not subject 

to waiver as a matter of law. 

An employer that unilaterally stops paying a claimant’s medical bills is 

subject to penalties under the WC Act, at the discretion of a WC judge (WCJ), if the 

WCJ finds that the medical bills are causally related to the employee’s work injury.  

Delarosa  v.  Workers’  Comp.  Appeal  Bd.  (Masonic  Homes),  934  A.2d  165  (Pa. 

Cmwlth.  2007).    Section 435(d)(i)  of  the  WC  Act provides  for  the  imposition  of 

penalties  for  a  violation  of  the  WC  Act  or  its  regulations.    Added  by  the  Act  of 

February  8,  1972,  P.L.  25,  77  P.S.  §  991(d)(i).    A  claimant  who  files  a  penalty 

petition must first meet his initial burden of proving a violation of the WC Act or the 

attendant regulations occurred.  The burden then shifts to the employer to prove the 

violation did not occur.  City of Phila. v. Workers’ Comp. Appeal Bd. (Andrews), 

948 A.2d 221 (Pa. Cmwlth. 2008).   

Here, the Utilization Review (UR) Determination found that medical 

marijuana was reasonable and necessary to treat Claimant’s pain, and Employer did 

not appeal that determination.  Thus, without more, it might be argued that Claimant 

met his burden of showing a violation of the WC Act in Employer’s refusal to pay 

for Claimant’s medical marijuana. 

However, the WCJ found that requiring Employer to pay for Claimant’s 

medical  marijuana  would  improperly  force  Employer  to  commit  a  crime  under 

federal law, which still classes marijuana as an illegal controlled substance.  The 

issue, therefore, is whether Employer could waive its illegality defense, and thereby 

be  forced  to  engage  in  criminal  activity,  because  it  failed  to  appeal  the  UR 

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Determination.    Although  Pennsylvania  appellate  courts  have  not  addressed  this 

issue  in  the  WC  context,  both  this  Court and  our  Supreme  Court have  found the 

defense of illegality cannot be deemed waived in other contexts, such as employment 

and contract actions.   

One  decision  providing  a  useful  analogy  is  American  Association  of 

Meat Processors v. Casualty Reciprocal Exchange, 588 A.2d 491 (Pa. 1991).  In 

Meat Processors, a WC carrier allegedly entered into an oral agreement with a trade 

association to provide annual rebates to association members who purchased their 

WC coverage from the carrier.  When the carrier failed to provide rebates for the last 

year of its contracts with members, the association sued and recovered a judgment 

for the amount of the rebates it claimed were due.  The carrier raised a defense of 

illegality for the first time in its post-trial motion.  Our Supreme Court held that the 

defense  of  illegality  was  not  waived,  notwithstanding  that  Pennsylvania  Rule  of 

Civil Procedure 1030, New Matter, requires affirmative defenses including illegality 

to  be  pleaded  in  New  Matter  and  that  Rule  1032(1)  provides  that  defenses  not 

properly pleaded are waived.  See Pa.R.Civ.P. 1030 & 1032(1).  Our Supreme Court 

explained that the controlling factor “on the question of waiver, is that the alleged 

contract  is  illegal  under  a  statute  enacted  in  aid  of  significant  public  policies 

identified  by  the  Pennsylvania  legislature.”    Meat  Processors,  588  A.2d  at  495.  

Because enforcing the alleged oral agreement would violate an insurance statute and 

contravene public policy as expressed by the legislature, the Court concluded the 

illegality defense was not waived by delay in asserting it.  Id. at 495-96. 

Although  the  context  and  procedural  posture  of  Meat  Processors 

differed from this matter, the rationale for its non-waiver holding  applies  equally 

here.  Requiring insurers to provide coverage for the costs of medical marijuana “is 

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illegal under a statute enacted in aid of significant public policies identified by the 

Pennsylvania  legislature.”    See  Meat  Processors,  588  A.2d  at  495.    That  is,  the 

MMA, enacted in aid of significant declared public policies, expressly forbids an 

interpretation  that would  require  an  insurer  to  reimburse  for  the  costs of  medical 

marijuana.  Therefore, I do not believe Employer’s illegality defense was waived by 

failure to appeal the UR Determination, and Employer could thereafter refuse to pay 

illegal  costs  and  assert  the  illegality  as  a  defense  to  a  WC  penalty  petition.  

Accordingly, while I agree with the majority that there was no waiver, I do so based 

also on this additional ground. 

 

III. Current State of Federal Law on Marijuana 

As the majority correctly observes, Section 2103 of the MMA specifies 

that nothing in the MMA requires an employer to commit any act that would violate 

federal law.  See 35 P.S. § 10231.2103.  Claimant argues that the Board erred in not 

addressing and reversing the WCJ’s sole basis for denying the Penalty Petition, that 

reimbursement  would  cause  the  WC  carrier  to  violate  federal  law.    Principally, 

Claimant  asserts  that  reimbursement  of  medical  marijuana  costs  does  not  violate 

federal  law,  as  reimbursing  for  medical  marijuana  does  not  require  the  carrier  to 

participate in any activity deemed illegal under the federal Controlled Substances 

Act (CSA)7. 

This Court need not reach this issue because, as discussed above, the 

MMA  expressly  does  not  require  insurance  reimbursement  of  medical  marijuana 

costs.  In any event, however, Claimant’s argument lacks merit. 

 
7 21 U.S.C. §§ 801-904. 

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At first blush, Claimant’s argument appears somewhat persuasive.  The 

federal  Controlled  Substances  Act  does  not  expressly  forbid  reimbursement  for 

prescribed medical marijuana.  The statute provides, in pertinent part, that “ it shall 

be  unlawful  for  any  person  knowingly  or  intentionally  —  (1)  to  manufacture, 

distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, 

a controlled substance . . . .”  21 U.S.C. § 841(a)(1).  Therefore, it appears an insurer 

reimbursing for medical marijuana costs under state law could be subject to federal 

prosecution only on a secondary basis as either an aider/abettor or an accessory after 

the  fact,  although  the  feasibility  of  such  prosecution  is  questionable.    Compare 

Appeal  of  Panaggio  (N.H.  Comp.  Appeals  Bd.),  260  A.3d  825,  835  (N.H.  2021) 

(holding  that  a  WC  insurer,  “if  ordered  to  reimburse  [a  claimant’s]  purchase  of 

medical  marijuana,  would  not  be  guilty  of  aiding  and  abetting  [the  claimant’s] 

violation of  the CSA because the insurer would not be an active participant with 

the mens rea required”), with Bourgoin v. Twin Rivers Paper Co., 187 A.3d 10, 19 

(Me.  2018)  (holding  that  a  WC  insurer  “would  be  aiding  and  abetting  [the 

claimant]—in  his  purchase,  possession,  and  use  of  marijuana—by  acting  with 

knowledge that it was subsidizing [his] purchase of marijuana”). 

  However, both parties’ arguments relate solely to the legality of a WC 

insurer’s conduct in reimbursing costs of medical marijuana.  Both parties, as well 

as  the  Board,  ignore  the  fact  that,  unlike  the  insurer,  the  provider  necessarily 

distributes or dispenses medical marijuana.  Thus, the provider necessarily violates 

federal criminal law by doing so.  See id.  

Case law is sparse on this issue, but in other contexts, this Court has 

held that where a provider cannot provide treatment legally, that treatment cannot be 

deemed  reasonable  and necessary,  and the  provider  cannot  obtain  reimbursement 

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under  the  WC  Act.    For  example,  in  Boleratz  v.  Workers’  Compensation  Appeal 

Board (Airgas, Inc.), 932 A.2d 1014, 1019 (Pa. Cmwlth. 2007), this Court concluded 

that  a  massage  therapist  could  not  obtain  reimbursement  for  treatment  provided 

pursuant to a prescription by the claimant’s doctor, because the massage therapist 

was not licensed by the Commonwealth to provide therapeutic massage.  Notably, 

this  was  true  even  though  the  massage  therapist  was  nationally  certified  and 

Pennsylvania at that time had no licensure provision for therapeutic massage.  See 

also Taylor v. Workers’ Comp. Appeal Bd. (Bethlehem Area Sch. Dist.), 898 A.2d 

51  (Pa.  Cmwlth.  2006)  (vocational  expert’s  lack  of  professional  licensure  by  the 

Commonwealth meant that employer did not have to pay his bills, despite the fact 

that claimant’s physician wrote a prescription for vocational expert services).  

Here,  by  analogy,  I  believe  that,  even  when  medical  marijuana  is 

approved  by  a  claimant’s  treating  doctor,  it  is  not  subject  to  reimbursement.    As 

discussed  above,  although  the  MMA  legalizes  the  use  of  medical  marijuana  in 

Pennsylvania,  a  provider  still  cannot  legally  dispense  medical  marijuana  under 

federal law.  Therefore, because it is illegal, such treatment cannot be reasonable and 

necessary  under 

the  WC  Act;  accordingly, 

the  dispenser  cannot  obtain 

reimbursement from a WC insurer.  See Boleratz; Taylor. 

 

IV. Conclusion 

Based on the foregoing discussion, I do not believe the MMA can be 

read as requiring a WC insurer to pay the costs of medical marijuana.  Although it 

does not expressly forbid requiring such reimbursement under a separate statute such 

as  the  WC  Act,  the  MMA  effects  no  change  in  the  preexisting  reimbursement 

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requirements,  because  it  expressly  cannot  be  read  to  create  a  reimbursement 

requirement where, as here, one did not exist before. 

Further, although federal law does not directly preclude requiring a WC 

insurance  carrier  to  pay  for  prescribed  medical  marijuana,  dispensing  medical 

marijuana remains illegal under federal law.  Because a provider dispensing medical 

marijuana  is  violating  federal  criminal  law,  such  treatment  cannot  be  deemed 

reasonable and necessary under the WC Act as a matter of law.  Therefore, unless 

and  until  Congress  amends  the  CSA  to  decriminalize  medical  marijuana  at  the 

federal level, I believe this Court is constrained to concluded that a provider may not 

obtain  reimbursement  from  a  WC  insurer  for  medical  marijuana  dispensed  to  a 

workers’ compensation claimant. 

For these reasons, I respectfully dissent in part.8 

 
 
 

 
 
 

__________________________________ 
CHRISTINE FIZZANO CANNON, Judge 

udge McCullough joins in this Concurring/Dissenting Opinion. 

   

 
 

   J

   

 
 
 

 

8 I note that my analysis here is similar to that in my dissenting opinion in Appel v. GWC 
Warranty Corporation (Workers’ Compensation Appeal Board) (Pa. Cmwlth., No. 824 C.D. 2021, 
filed March 17, 2023). 

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