PA Supreme Court Approves OTC Supplements & CBD Oil for Workers’ Compensation

In a unanimous opinion issued today, the Pennsylvania Supreme Court has ruled that any item that is part of a health care provider’s treatment plan falls within the purview of medical services and the broad-encompassing phrase “medicines and supplies” as provided in Section 306(f.1)(1)(i) of the Workers’ Compensation Act.  Thus, Employers are required to provide payment for the expenses.

Background

In this matter, a workers’ compensation claimant’s attorney was injured on the job when he tripped over a trial bag, causing a back injury.  He requested a prescription for CBD Oil from his treating physician and personally purchased the product over-the-counter at a local health food store.  When his law firm’s insurance carrier refused to reimburse the claimant’s expenses, the attorney filed a penalty petition which was granted by the WCJ.  The  Commonwealth Court affirmed the WCJ’s decision.  However, individual judges offered differing opinions as to whether CBD oil could be deemed a medicine and/or a supply within the meaning of the Act.

Supreme Court Opinion

In its opinion, the Supreme Court concluded that trying to fit a physician recommended item, such as CBD Oil, into the medicine or supply category was neither necessary nor relevant.  Instead, the Court repeatedly interpreted the phrase “medicines and supplies” as a single term meant to include broadly anything a treating physician, “presumedly using his or her professional judgment, determines . . . is a component of a treatment plan for a work-related injury.”

Furthermore, the Court concluded that the question of whether the item at issue is FDA approved, is only relevant to determine the reasonableness and necessity of the product in conjunction with a Utilization Review Petition.  And finally, but with particular significance, the Court concluded that the cost containment provisions of the Act are not applicable to non-providers, i.e., the claimants who purchase items and personally submit receipts for reimbursement.

Consequences

This is a game changing decision requiring insurance carriers, third-party administrators and self-insured employers to pay for a broad array of non-prescription items including over-the-counter medications, dietary supplements, non-FDA approved analgesics, and CBD Oil.  It would also directly cover expensive treatments or therapies that we see more frequently, including high-cost infrared heating pads.  Thus, we would expect to see these types of items being added to many claims involving attorneys who have extended their fee agreements to include 20% of medical benefits, and physicians who may be willing to “prescribe” anything the claimant wants. The cost impacts will be significant, perhaps stimulating interest in formal Legislative review.

Moving forward, if a claimant is requesting reimbursement for personally purchased medical items, he/she must provide documentation that the physician has included the item in the treatment plan, whether by “prescription” or medical report.  Reimbursement must then be made at retail cost.  Furthermore, any medical treatment recommended remains subject to utilization review.