The vexing issue of whether insurance carriers, third-party administrators and self-insured employers will be required to pay for a broad array of non-prescription items (for example, over-the-counter medications, dietary supplements, non-FDA approved analgesics, CBD oils, etc.) will now be considered by Pennsylvania’s Supreme Court. This week, the Court agreed to take the case of Schmidt v. Schmidt, Kirifides & Rassias. The Commonwealth Court, in a split decision, determined that an employer violated the Pennsylvania Workers’ Compensation Act by failing to reimburse its employee for CBD oil purchased by the claimant to treat a work injury.  Please note from the case’s caption that this matter involves a claimant attorney suing his employer law firm, the lead name of which firm references the same claimant attorney who experienced the workplace injury in question, and the same attorney who purchased the CBD oil.

The central question is whether the Act’s use of the terms “medical services” and “medicines and supplies” includes a broad array of over-the-counter items that can be purchased without a medical provider’s prescription. If the Supreme Court decides that these two sets of terms must be broadly construed to include nonprescribed items, it will become necessary for there to be a legislative solution by way of an amendment to the Act.

We recommend that clients follow this case closely, that clients consider filing friend-of-the-court briefs with the Supreme Court, and that clients begin a process of legislative outreach, should that approach become necessary once the decision is released. Pennsylvania lacks a case-law history that would require – on the broad basis contemplated by this case – payment for nonprescribed items. If Pennsylvania’s Supreme Court moves in this direction, there will be strong financial consequences for case exposure across an array of matters.

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