IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Edward Appel, :

Petitioner :

:

v. :

:

GWC Warranty Corporation :

(Workers’ Compensation :

Appeal Board), : No. 824 C.D. 2021

Respondent : Argued: September 14, 2022

BEFORE: 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 

OPINION 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 
2

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. 
3

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. 

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)[)].

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.
4

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).

6

21 U.S.C. §§ 801-971. .

7

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

812(c)(c)(10).
5

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 
6

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.
7

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 respect to the District of Columbia, 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.

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 
8

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 
9

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; 
10

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://medicaldictionary.thefreedictionary.com/intractable+pain (last 

visited Jan. 30, 2023)]; see also McGraw-Hill Concise 

Dictionary of Modern Medicine, 2002 [https://medicaldictionary.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 
11

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 workrelated 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. 
12

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.
13

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
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Edward Appel, :

Petitioner :

:

v. :

:

GWC Warranty Corporation :

(Workers’ Compensation :

Appeal Board), : No. 824 C.D. 2021

Respondent :

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
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Edward Appel, :

Petitioner :

:

v. :

:

GWC Warranty Corporation (Workers’ :

Compensation Appeal Board), : No. 824 C.D. 2021

Respondent : Argued: September 14, 2022

BEFORE: 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

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.
CFC - 2

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 workrelated injury.
CFC - 3

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.

(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 

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 - 4

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 - 5

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 - 6

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 
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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 - 8

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

Judge McCullough joins in this Dissenting Opinion.

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).