We usually preserve our distance from medical hashish/marijuana.  We’re not a type of blogs.  But when authorized holdings of curiosity to us occurs to contain hashish, we are going to remark.  Thus, we convey you Schmidt v. Schmidt, Kirifides & Rassias, PC, ___ A.3d ___, 2023 WL 7502499 (Pa. Commw. Nov. 14, 2023), holding that the price of authorized, physician-prescribed medical marijuana is professional medical expense reimbursable by means of the Pennsylvania Employee’s Compensation system, however such merchandise’ full lack of FDA approval.

The claimant had switched to a kind of prescription medical marijuana (cannabinoid (“CBD”) oil) and away from the opioid medicine he had beforehand been taking for a work-related damage.  Id. at *1-2.  Nevertheless, the employer “refused to reimburse Claimant’s out-of-pocket CBD oil bills on the idea that CBD oil isn’t a pharmaceutical drug.”  Id. at *2.  The executive legislation decide discovered that this therapy with medical marijuana was medically acceptable, and the truth that it was obtainable over-the-counter didn’t exclude it from protection.  Id. at *3-4.

Nevertheless, the board that oversees Pennsylvania’s employees’ compensation program reversed, holding that FDA warning letters regarding this product precluded reimbursement:

Based mostly on the acknowledged place and up to date actions of the FDA, an insurer or employer can’t be required to pay for hashish or cannabis-derived merchandise . . . .  Subsequently, Employer’s failure to reimburse Claimant . . . isn’t a violation of the Act. . . .  Discovering a violation right here is concomitant to driving an employer to violate federal legislation.

Schmidt, 2023 WL 7502499, at *5 (quotation and citation marks omitted).

On additional attraction, the Pennsylvania Commonwealth Court docket (an intermediate appellate courtroom with jurisdiction over, inter alia, administrative appeals) reversed.  That the medicine was bought OTC didn’t matter.  Relatively,  the “Claimant want solely present that CBD oil is a medication or provide.”  Id. at *12 (quotation omitted).  These phrases weren’t restricted to prescription-only merchandise:

[T]he time period “medical provides” is outlined as “[a]ny merchandise that’s important for treating sickness or damage.”  Right here, [claimant’s physician] prescribed CBD oil to Claimant to deal with his ache.  The CBD oil has benefitted Claimant’s well-being by lowering his ache, eliminating his want to extend using extremely addictive opioid drugs, and forestalling costly and dangerous surgical procedure. Accordingly, CBD oil matches inside the definitions of “medicines” and “provides.”

Schmidt, 2023 WL 7502499, at *14 (citations and footnote omitted).  Additional, decision of points like OTC standing was inside the scope of impartial “utilization evaluate” (“UR”)  − a statutory “treatment” that the employer had failed to hunt.  Id. at *15.  Lastly, given the Employee’s Compensation Act’s “humanitarian aims,” if the act was to be construed to bar reimbursement of OTC merchandise, that will require legislative motion.  Id. at *20.

FDA non-approval of medical marijuana likewise made no distinction.  “FDA approval of a therapy isn’t a requirement below the Act.”  Id. at *21  “[W]hether a therapy is FDA authorised for a specific objective needs to be raised inside the framework of the  UR course of.”  Id. at *15.  Having legalized medical marijuana, Pennsylvania was below no obligation to observe FDA limitations on what was medically reimbursable.  “[T]hat some corporations advertising CBD merchandise might violate federal legislation . . . doesn’t make Claimant’s use or Employer’s reimbursement for CBD oil unlawful.”  Id. at *17.  Nor did marijuana’s continued illegality below federal legislation make employer reimbursement one way or the other “unlawful.”  All of the employer was required to do was pay cash for medical therapy discovered “affordable and mandatory” below Pennsylvania’s employees’ compensation scheme:

For the reason that employer isn’t prescribing marijuana, however quite reimbursing the claimant for his lawful use thereof, the employer isn’t in violation of federal legislation. . . .  As a result of the employer wouldn’t be in violation of federal legislation by reimbursing the claimant for his lawful medical marijuana use, and the [administrative judge] concluded that the medical marijuana use was causally associated to the work damage, the employer is required to reimburse the claimant for his out-of-pocket prices below the [Workers’ Compensation] Act.

Schmidt, 2023 WL 7502499, at *18 (citations and citation marks omitted).  FDA non-approval didn’t matter the place a hashish product “is lawfully bought over-the-counter in Pennsylvania and everywhere in the United States.”  Id. (quotation and citation marks omitted).

We’ve acknowledged quite a few instances that state legislation, not FDA regulatory standing, governs the legality of off-label use.  Schmidt is attention-grabbing to us as a result of it goes one step past – medical marijuana, together with CBD oil, has no FDA approval for any use.  With properly over half the states having legalized medical use of hashish, persevering with federal inaction on this concern dangers the FDA being left behind.