NWCDN Members regularly post articles and summary judgements in workers’ compensations law in your state.
Select a state from the dropdown menu below to scroll through the state specific archives for updates and opinions on various workers’ compensation laws in your state.
Contact information for NWCDN members is also located on the state specific links in the event you have additional questions or your company is seeking a workers’ compensation lawyer in your state.
Medical Marijuana:
Recent Pennsylvania Commonwealth Court Decisions.
Fegley, as Executrix of Estate of Paul Sheetz v. WCAB(Firestone Tire & Rubber), ___ A.3d ___ (Pa.Cmwlth. 2023) and Edward Appel v. WCAB (GWC Warranty Corporation), ___ A.3d ___ (Pa.Cmwlth. 2023).
In Fegley the Commonwealth Court found that Section 2102 of Pennsylvania’s Medical Marijuana Act (“MMA”) which provides that, “[n]othing in this act shall be construed to require an insurer or health plan, whether paid for by Commonwealth funds or private funds, to provide coverage for medical marijuana.” did not prohibit reimbursement of out-of-pocket payments by claimants for medical marijuana. It held that the Pennsylvania Worker’s Compensation Act mandates workers’ compensation carriers to reimburse claimants for out-of-pocket costs of medical treatments that have been found to be reasonable and necessary for work-related injuries and this included medical marijuana.
The court also addressed Section 2103 of the MMA which indicates that 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 Federal law.” In addressing Section 841(a) of the Federal Drug Act which provides that it is “unlawful for any person knowingly of intentionally … to manufacture, distribute, or dispense … a controlled substance.” 21 U.S.C. § 841(a),the court held that reimbursement of out-of-pocket expenses for medical marijuana by a workers’ compensation carrier was not a violation of federal law as reimbursement is not the manufacturing, distribution, or dispensing of medical marijuana.
Following its Opinion in Fegley, the Commonwealth Court in Appel held that while the MMA did not require an employer/carrier to provide coverage for medical marijuana, coverage is “different and distinct from reimbursement,” and there is no statutory language which prohibited the reimbursement to a Claimant for costs incurred for the lawful use of medical marijuana.
Thus, the denial of reimbursement costs incurred for lawful use of medical marijuana which has been found to be reasonable and necessary treatment of a compensable work injury can be found to constitute a violation of the Workers’ Compensation Act. Provided that medical marijuana is reasonable and necessary for a work injury and a Claimant is lawfully using the drug under the MMA, failure to make payment could now subject an employer/carrier to penalties under the Workers’ Compensation Act.
Both decisions, based the rationale applied differentiating between coverage and reimbursement given the potential significant impact upon the defense industry, will most likely be appealed to the Pennsylvania Supreme Court. It should be noted that there was a well written and reasoned dissent filed in Fegley which noted that there should not be reimbursement made by a carrier if there is no coverage for the item that is requested to be reimbursed. Further, it was posited that if the doctor is contributing to the dispensing of marijuana, which is still prohibited by Federal Law, the treatment may not be reasonable and necessary treatment.
It should be noted that there may be other arguments that could be advanced against the payment and/or reimbursement of medical marijuana. Such argument may require the initiation of litigation. Should a request be received for reimbursement for medical marijuana, it may be advisable to seek legal counsel as failure to take action or issue payment within thirty (30) days may now lead to the filing of a Petition for Penalties by the claimant’s bar as well as a request for the imposition of Lorino fees for the time expended by counsel in seeking reimbursement for such invoices.
A more or less advanced decay and feebleness of the intellectual faculties; that weakness of mind which, without depriving the person entirely of the use of his reason, leaves only the faculty of conceiving the most common and ordinary ideas and such as relate almost always to physical wants and habits.
Legal Update by Attorney Alison Stewart and Law Clerk Morgan Todd Borron
When a worker falls at work, and the fall cannot be
attributed to an acute event caused by the work (e.g., tripping over an object,
slipping on ice or water, losing balance while carrying an object, etc.), the
fall will likely fall into one of two categories: idiopathic or unexplained.
These types of falls require additional analysis into compensability. An idiopathic
fall is one that originates from a purely personal condition to the
claimant. See Koehler Elec. v. Wills, 608 N.W.2d 1, 4 (Iowa 2000)
(citing Arthur Larson, Workmen’s Compensation Law, sec. 12.11, at 3-356
(1994)); Bluml v. Dee Jay’s, Inc., 920 N.W.2d 82, 84 (Iowa 2018). An unexplained
fall is where a claimant trips, slips, or falls for no specifically
identifiable reason. Bartle v. Sidney Care, Inc., 672 N.W.2d 333, 2003
WL 22346956 at *2. (Iowa Ct. App. Oct. 15, 2003).
There are different standards that apply to these different
types of falls. In Bluml, the worker sustained an idiopathic fall.
The Iowa Supreme Court determined that “the claimant should have both the
burden and the opportunity to meet the increased-risk test[,]” and “may recover
if he or she proves that ‘a condition of his [or her] employment increased the
risk of injury.’” Bluml, 920 N.W.2d at 91 (quoting Koehler Elec.,
608 N.W.2d at 5). The Court noted that for unexplained falls, the
actual-risk rule is the appropriate standard. Bluml, 920 N.W.2d at fn.1.
Under the actual-risk doctrine, an injury is compensable “as long as the employment subjected [the] claimant to the actual risk that caused the injury.” Lakeside Casino v. Blue, 743 N.W.2d 169, 176 (Iowa 2007) (quoting Arthur Larson & Lex K. Larson, Larson’s Workers’ Compensation Law, sec. 3.04, at 3-5 (2007)). “[U]nder the actual-risk doctrine, the injury must result from a condition, risk, or hazard of employment.” Murray as Conservator of Meyers v. Lazer Spot, Inc., No. 21004833.01, 2022 WL 16826433 at *11 (Iowa Workers’ Comp. Comm’n Arb. Dec. July 28, 2022) (citing Lakeside Casino, 743 N.W.2d at 178; Hanson v. Reichelt, 452 N.W.2d 164, 168 (Iowa 1990)).
In Lakeside Casino, the worker was injured after she
stumbled while walking down stairs at work. The Iowa Supreme Court stated, “it
is a matter of common knowledge that stairs pose an actual risk of stumbling or
falling when traversing them, similar to the risk posed by going up and down
ladders. Although Blue did not stumble due to any particular defect in or
condition of the stairs, it is not necessary under Iowa case law that that the
stairs in Blue’s workplace be more dangerous than a typical set of steps. In
addition, it matters not that she stumbled through her own inattention. Blue’s
misstep was causally related to the fact that she was walking on stairs, and
therefore, the Commissioner rationally concluded her injury arose out of her
employment.” 743 N.W.2d at 177. The Court found that “Blue stumbled on the
stairs, the Commissioner finding that ‘the injury occurred from the
hazard of traversing stairs.’ It is this causal relationship between a
condition of Blue’s employment—the stairs—and her injury that distinguishes the
present case from those in which we have determined the employee’s injury was
not compensable” (referring to earlier discussion distinguishing McIlravy,
where EE injured knee walking across level floor; Gilbert, where EE
arguably injured neck straightening up from signing a document; Miedema,
where EE injured back turning to flush toilet; and Musselman, where EE
injured back leaning against wall for balance). Lakeside Casino, 743
N.W.2d at 177-178.
In Lapcheske v. Polk Cty., No. 5055505, 2019 WL 7559785 (Iowa Workers’ Comp. Comm’n App. Dec. Nov. 6, 2019), the worker suffered an unexplained fall on a hard floor (described as concrete, marble, or terrazzo throughout the record) resulting in an arm injury. The treating physician opined that claimant’s landing on a hard surface resulted in a “higher-energy fracture than if she would have fallen on carpet” and “elevated the severity” of the fracture; Dr. Bansal opined similarly. Lapcheske, at *3. The Commissioner stated, “Simply put, claimant’s arm was not fractured until it struck defendant’s floor. This factor distinguishes the injury from one that coincidentally occurs at work.” Id. at *4. The Commissioner held that “the hard floor in this case did present an actual risk of injury; in fact, the hard floor even went so far as to increase the risk of injury. Thus, applying the actual-risk doctrine to this case, I find the hard floor was a condition and ultimately a hazard of claimant’s employment.” Id.
In McClain v. Lennox, No. 1664566.01, 2021 WL 2624684
(Iowa Workers’ Comp. Arb. Dec. Apr. 22, 2021), affirmed 2021 WL 4447174
(Iowa Workers’ Comp. App. Dec. Sept. 22, 2021), the worker tripped and fell
landing on his right side. He thought he caught his toe on an uneven portion of
the cement floor or a corner of a pallet but was not sure. Defendants argued
that claimant’s fall was idiopathic or unexplained. The evidence presented at
hearing showed that claimant had caught his toe on some kind of crack or
obstruction, causing the fall and subsequent injury. McClain, 2021 WL
2624684 at *6. This was affirmed on appeal, with the Commissioner noting “I
therefore affirm the deputy commissioner’s finding that claimant’s fall was
explained, meaning the resulting injury arose out of and in the course of
claimant’s employment.” McClain, 2021 WL 4447174 at *1.
In 2019, there was amendment to Iowa Code section 85.61, adding that “Personal injuries due to idiopathic or unexplained falls from a level surface onto the same level surface do not arise out of or in the course of employment and are not compensable under this chapter.” Iowa Code 85.61(7)(c). In light of the subsequent case law, however, we think application of this amendment is limited to cases where the worker does not hit another object (like a wall, or a desk or shelf) on the way to the ground.
Peddicord Wharton will continue to monitor this evolving area of the law and provide relevant updates.
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