IN THE COMMONWEALTH COURT OF PENNSYLVANIA 

 

 
 
v. 
 

dward Appel, 

 
Petitioner 
 
 
 

 
 
 
 
GWC Warranty Corporation 
(Workers’ Compensation  
 
Appeal Board), 
 
Respondent 
 

 
 
 

 

 
 
 
 
 
 
 
 
 

: 
: 
: 
: 
: 
: 
: 
:  No. 824 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 

Edward  Appel  (Claimant)  petitions  this  Court  for  review  of  the 

Workers’  Compensation  (WC)  Appeal  Board’s  (Board)  June  23,  2021  order 

affirming the WC Judge’s (WCJ) decision that partially denied Claimant’s Petition 

to Review Medical Treatment and/or Billing (Review Medical Petition).  The sole 

issue before this Court is whether the Board erred by concluding that “[b]ased on the 

plain language of the Medical Marijuana Act [(MMA)1], . . . an insurer or employer 

cannot be required to pay for medical marijuana.”2  Reproduced Record (R.R.) at 

23a.   

1 Act of April 17, 2016, P.L. 84, as amended, 35 P.S. §§ 10231.101-10231.2110. 
            2 Claimant sets forth two issues in his Statement of Questions Involved: (1) whether the 
Board erred by failing to address whether the WCJ applied the incorrect burden of proof when 
rendering a decision on Claimant’s Review Medical Petition; and (2) whether the Board erred by 

 

 

 

 E

  B

 
 
 
 
 
 
 

   

 O

Facts 

On March 1, 2006, Claimant sustained a work-related herniated disc at 

L5-S1,  cervical  sprain,  disc  herniation  at  L4-L5,  lumbar  radiculopathy,  cervical 

strain with cervical myofascial spasm, major depression, and aggravation of cervical 

degenerative  spondylosis  of  degenerative  disc  disease.    Employer  accepted 

Claimant’s  injury  via  a  Stipulation  of  Facts  approved  in  a  July  9,  2015  WCJ 

Decision. 

Claimant  received  extensive  treatment  for  his work injury,  including 

two lower back surgeries.  See R.R. at 10a; WCJ Dec. at 5 (Finding of Fact (FOF) 

No. 6).  Claimant continues to experience chronic low back pain and symptoms in 

his legs for which his doctor prescribed opioids.  See id.  Claimant gradually weaned 

himself  off  of  all  the  opioid  medications  by  September  2018,  but  experienced  a 

tremendous amount of withdrawal symptoms during the stepdown process.  See id. 

(FOF No. 7).   

  

In approximately April 2018, Claimant received his medical marijuana 

card and used medical marijuana while he was weaning himself off of the opioids.  

See  id.  (FOF  No.  8).    Claimant  testified  that  the  medical  marijuana  was  more 

effective for him than any medication he had ever taken, because the opioids became 

less and less effective over time in addressing his chronic back and leg pain.  See id.   

On  October  11,  2018,  Claimant  filed  the  Review  Medical  Petition 

seeking a determination that his use of medical marijuana was causally related to his 

work injury and an order directing Employer to reimburse him for the cost thereof.  

On July 30, 2020, the WCJ partially denied the Review Medical Petition.  The WCJ 

concluded that Claimant met his burden of proving that his use of medical marijuana 

 

finding that Claimant failed to meet his burden of proving that Employer is obligated to reimburse 
Claimant  for  his  out-of-pocket  medical  marijuana  expenses.    Claimant  Br.  at  4.    Because 
Claimant’s  burden  of  proof  is  irrelevant  to  the  underlying  dispositive  issue,  this  Court  has 
rephrased the issue for ease of discussion.  

2 

 

 

 

 

was related to the accepted work injury.  However, the WCJ concluded that Claimant 

failed  to  prove  that  Employer  must  reimburse  him  for  his  out-of-pocket  medical 

marijuana expenses pursuant to Section 2102 of the MMA,3 which does not require 

an  insurer  or  health  plan  to  provide  coverage  for  medical  marijuana.    Claimant 

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

this Court.4 

 

 

 

Relevant Law 

Initially, 

 

[i]n conducting [this Court’s] review, we are cognizant of 
the fact that, “the Pennsylvania [WC] Act[5] is remedial 
in  nature  and  intended  to  benefit  the  worker,  and, 
therefore, the [WC] Act must be liberally construed to 
effectuate  its  humanitarian  objectives.”    Peterson  v. 
(PRN  Nursing 
Workmen’s  Comp[.]  Appeal  Bd. 
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)[)].  

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

2005) (emphasis added).  This Court has explained: 

“It  is  accepted  that,  pursuant  to  [Section  301(c)  of]  the 
[WC]  [Act],  an  employer  is  only  liable  to  pay  for  a 

 
3 35 P.S. § 10231.2102. 
4 “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)). 

5 Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2710. 

3 

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)6 provides, in relevant part, 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).7  

However, Section 903 of the Federal Drug Act expressly provides: 

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.  

21 U.S.C. § 903 (emphasis added). 

 

 

812(c)(c)(10).  
 

4 

 
6 21 U.S.C. §§ 801-971. 
7  “Mari[j]uana”  is  classified  as  a  “Schedule  I”  controlled  substance.    21  U.S.C.  § 

. 

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. 

(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 

 

5 

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) (bold and 

italic emphasis added).   

 

Moreover, 

in 

the  relevant  rider 

to 

the  federal  Consolidated 

Appropriations Act (CAA), Congress prohibited the federal Department of Justice 

(DOJ) from using allocated funds to prevent states, including Pennsylvania, from 

implementing their medical marijuana laws.  See CCA, 2021, Pub. L. No. 116-260, 

§  531,  134  Stat.  1182,  1282-83  (2020).8    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, 

 

8  Similar  language  has  been  included  in  appropriations  riders  dating  back  to  the  2015 
federal budget, although the list of states and territories with medical marijuana legislation has 
been 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 approved the appropriations rider every year 
thereafter. 

 

6 

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. 

 

Discussion 

Claimant first argues that the Board erred by failing to address whether 

the wrong burden of proof was applied in the underlying litigation before the WCJ.  

Specifically,  Claimant  contends  that  since  the  WCJ  determined  that  Claimant’s 

medical  marijuana  use  is  causally  related  to  his  work-related  injuries,  it  was 

Employer’s  burden  to  prove  that  the  medical  marijuana  is  an  unreasonable  and 

unnecessary treatment for the work-related injuries.  Employer rejoins that whether 

the burden of proof is on Claimant or Employer is irrelevant because the issue on 

appeal is whether Employer can be compelled to pay for Claimant’s lawful use of 

medical marijuana.   

Initially, Claimant is correct that “[E]mployer has the burden of proving 

that a medical expense is unreasonable, unnecessary, or is not related to the accepted 

work injury.”  Rogele, Inc., 198 A.3d at 1200.  However, notwithstanding that the 

WCJ concluded that Claimant’s lawful medical marijuana use was causally related 

to Claimant’s work injury, the WCJ further concluded that an insurer or employer 

7 

 

 

 

 

 

cannot be required to pay for medical marijuana.  Thus, the issue before this Court 

is  whether  the  WCJ  properly  concluded  that  Employer  is  precluded  from 

reimbursing  Claimant  for  his  medical  marijuana  out-of-pocket  costs.    Employer 

maintains that Employer cannot be compelled to pay for Claimant’s lawful medical 

marijuana use pursuant to Section 2102 of the MMA.  

 

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,  Inc.  v.  [Pa.]  Dept[’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). 

Sheppleman v. City of Chester Aggregated Pension Fund, 271 A.3d 938, 949 (Pa. 

Cmwlth. 2021).   

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 (emphasis added).  While a plain reading of the 

 

 

8 

statute  does  not  require  an  insurer  to  provide  coverage,  it  does  not  prohibit  an 

insurer from covering it either.  Specifically, Section 2102 of the MMA does not 

prohibit an insurer or health plan from reimbursing payment for medical marijuana.  

Further, “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.”  Fegley, as Executrix of the 

Est. of Sheetz v. Firestone Tire & Rubber (Workers’ Comp. Appeal Bd.), ___ A.3d 

___ (Pa. Cmwlth. No. 680 C.D. 2021, filed Mar. 17, 2023), slip op. at 17.  “This 

Court  has  consistently  held  that  courts  may  not  supply  words  omitted  by  the 

legislature as a means of interpreting a statute.  This Court’s duty to interpret statutes 

does not include the right to add words or provisions that the legislature has left out.”  

McCloskey v. Pa. Pub. Util. Comm’n, 219 A.3d 692, 702 n.9 (Pa. Cmwlth. 2019) 

(quoting Rogele, Inc. v. Workers’ Comp. Appeal Bd. (Mattson), 969 A.2d 634, 637 

(Pa. Cmwlth. 2009) (citations omitted)).    

 

In Fegley, this Court explained: 

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 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; 

 

9 

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.”  [Section 103(16) of the MMA,] 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 
[https://medical-
dictionary.thefreedictionary.com/intractable+pain 
(last 
visited  Jan.  30,  2023)];  see  also  McGraw-Hill  Concise 
Dictionary  of  Modern  Medicine,  2002  [https://medical-
dictionary.thefreedictionary.com/intractable+pain 
(last 
visited  Jan. 30, 2023)]  (“[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.  

Fegley, slip op. at 14-16 (footnotes omitted). 

The Fegley Court expounded:        

 

 

“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 

10 

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.[FN]16  See MERSCORP. 

[FN]16  Accepting 
[the  e]mployer’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.  

Fegley, slip op. at 16-17.  Accordingly, because Section 2102 of the MMA does not 

prohibit  insurers  from  covering  medical  marijuana,  the  WC  Act  mandates 

employers  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, 

and the WCJ concluded that the medical marijuana use was causally related to the 

work injury, Employer is required to reimburse Claimant for his out-of-pocket costs 

under the WC Act. 9   

Employer further claims that Employer cannot be compelled to pay for 

Claimant’s  medical  marijuana  use  under  Section  2103(b)(3)  of  the  MMA,  which 

provides: “Nothing in [the MMA] shall require an employer to commit any act that 

 

9 The Dissent submits that because the MMA was enacted after the WC Act, and marijuana 
was illegal  under state law at  the time the  WC  Act was  enacted, the WC Act  does not  require 
employers to provide payment to claimants for reasonable and necessary medical treatment under 
the WC Act if it includes medical marijuana.  However, the WC Act requires employers to pay for 
reasonable and necessary medical treatment for a work-related injury.  The MMA provides that 
marijuana is an acceptable medical treatment in Pennsylvania.  Therefore, the WC Act requires 
employers  to  pay  for  medical  marijuana  when  it  is  determined  that  the  medical  marijuana  is 
reasonable and necessary to treat a work-related injury.   

11 

 

 

would put the employer or any person acting on its behalf in violation of [f]ederal 

law.”  35 P.S. § 10231.2103(b)(3).  Specifically, Employer contends that because it 

is illegal under the Federal Drug Act to prescribe a Schedule I drug, and marijuana 

is a Schedule I drug, employers cannot be compelled to pay for such use.  However, 

since Employer is not prescribing marijuana, but rather reimbursing Claimant for his 

lawful use thereof, Employer is not in violation of the Federal Drug Act.  See also 

Fegley, slip op. at 18-19 (“Because reimbursing [a c]laimant for his out-of-pocket 

expenses for his lawful use of medical marijuana would not require [an e]mployer’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), 

[the e]mployer’s WC carrier would not violate the Federal Drug Act, or be at risk of 

facing federal prosecution by doing so.”).  Accordingly, because Employer would 

not be in violation of the Federal Drug Act by reimbursing Claimant for his lawful 

medical marijuana use, and the WCJ concluded that the medical marijuana use was 

causally related to the work injury, Employer is required to reimburse Claimant for 

his out-of-pocket costs under the WC Act.10  

 

10 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. 
 

12 

       

 

 

Conclusion 

Because  Section  2102  of  the  MMA  does  not  prohibit  insurers  from 

covering medical marijuana, and the WCJ concluded that Claimant’s lawful medical 

marijuana  use  was  causally  related  to  the  work  injury,  the  WC  Act  mandates 

employers  to  reimburse  claimants  for  out-of-pocket  costs  of  medical  treatment 

which has been found to be reasonable and necessary for their work-related injuries, 

Employer is required to reimburse Claimant  for his out-of-pocket costs under the 

WC  Act.    Further,  since  Employer  is  not  prescribing  marijuana,  but  rather 

reimbursing Claimant for his lawful use thereof, Employer is not in violation of the 

Federal Drug Act.   

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 

“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  by  concluding  an  insurer  or 

employer cannot be required to pay for medical marijuana. 

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

partially denied the Review Medical Petition is reversed.   

 

 
  

 
 

 
 

_________________________________ 
ANNE E. COVEY, Judge 

13 

 

 

 

 
 

 

IN THE COMMONWEALTH COURT OF PENNSYLVANIA 

 

 
 
v. 
 

dward Appel, 

 
Petitioner 
 
 
 

 
 
 
 
GWC Warranty Corporation 
(Workers’ Compensation  
 
Appeal Board), 
 
Respondent 
 
 

 
 
 

 

 
 
 
 
 
 
 
 
 

: 
: 
: 
: 
: 
: 
: 
:  No. 824 C.D. 2021 
: 

 

O R D E R 
 

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

Compensation Appeal Board’s June 23, 2021 order that partially denied the Petition 

to Review Medical Treatment and/or Billing is reversed. 

 
  

 
 

 
 

_________________________________ 
ANNE E. COVEY, Judge 

  E

 

     

 

IN THE COMMONWEALTH COURT OF PENNSYLVANIA 

 

 
 
v. 

Petitioner 

dward Appel, 

: 
: 
 
: 
 
: 
 
 
: 
GWC Warranty Corporation (Workers’  : 
Compensation Appeal Board), 
Respondent 
 

 

 

  
  

:  No. 824 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 

ike 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. 

  L

ISSENTING OPINION  

BY JUDGE FIZZANO CANNON 

 

 

FILED: March 17, 2023   

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

 

 

   E

   B

 
 
 

  D

 

 

 

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 

GWC  Warranty  Corporation  or  its  insurer  (Employer)  must  reimburse  Edward 

Appel (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 coverage for medical 

marijuana prescribed to a claimant to treat a work injury.   

The majority reasons that although the MMA does not itself mandate 

insurance reimbursement for the costs of medical marijuana, it does not preclude 

reimbursement that is otherwise required by the WC Act.2  However, 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  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.3  In any event, 

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

 

3 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 

 

CFC - 4 
 

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. 

 

II. Current State of Federal Law on Marijuana 

Section  2103  of  the  MMA  specifically  provides  that  nothing  in  the 

MMA requires an employer to commit any act that would violate federal law.  See 

35  P.S.  §  10231.2103.    The  majority  reasons  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).4 

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, I believe the majority’s reasoning is in error. 

It is true that the 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 

 

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.”). 

4 21 U.S.C. §§ 801-904. 

CFC - 5 
 

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, and 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,  the  majority’s  analysis  fails  to  recognize  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 

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 

CFC - 6 
 

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.5  See Boleratz; Taylor. 

 

III. 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 

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 

 

5  To  the  extent  that  illegality  of  requiring  reimbursement  was  not  asserted  by  way  of  a 
utilization review, I note that a defense of illegality is not waived by delay in asserting it.  See Am. 
Ass’n of  Meat  Processors  v. Cas. Reciprocal Exch., 588 A.2d 491, 495  (Pa. 1991) (finding no 
waiver where illegality was asserted “under a statute enacted in aid of significant public policies 
identified by the Pennsylvania legislature”). 

CFC - 7 
 

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.6 

 
__________________________________ 
CHRISTINE FIZZANO CANNON, Judge 

 
 
 

   

 
 

udge McCullough joins in this Dissenting Opinion. 

 
 
 

 

 

 
 

  J

              

6 I note that my analysis here is similar to that in my concurring and dissenting opinion in 
Fegley v. Firestone Tire & Rubber (Workers’ Compensation Appeal Board) (Pa. Cmwlth., No. 
680 C.D. 2021, filed March 17, 2023). 

CFC - 8