You will discover helpful authorized precedents in shocking locations. For instance, Schmidt v. Schmidt, 2025 Pa. LEXIS 389 (Pa. March 20, 2025), is an attention-grabbing off-label use resolution coming in a context that that the majority litigants of such circumstances will miss: a employees’ compensation case. However when you’ve got been following this weblog, Schmidt won’t be a lot of a shock, as a result of we lined the sooner ruling in that case right here. In that earlier ruling, a majority of the Pennsylvania Commonwealth Courtroom held that the place a health care provider prescribed a hashish oil (CBD) to a employees’ compensation claimant for remedy of ache from a office harm, the acquisition of the CBD is reimbursable by the employees’ compensation system. The employees’ comp board had denied protection, leaning closely on the refusal of the Meals and Drug Administration (FDA) to approve medical use of CBD. The Commonwealth Courtroom overturned the employees’ comp board. The bulk opinion reasoned that the FDA’s non approval of CBD (certainly, the FDA had even pursued off-label prosecutions in opposition to some CBD sellers), didn’t have an effect on the legality or reimbursability of the CBD on this case.
Now the Pennsylvania Supreme Courtroom has unanimously affirmed the Commonwealth Courtroom and held that an off-label use of the CBD (a use that the FDA “has concluded that it has not been confirmed secure or efficient”) doesn’t make prescription of the product unlawful. That’s proper, the employer in Schmidt made primarily the identical off-label = unlawful argument that we DDL bloggers have been opposing for the reason that Bone Screw litigation of the Nineteen Nineties. That argument failed then, within the context of product legal responsibility/medical malpractice. See Southard v. Temple Univ. Hosp., 781 A.2nd 101, 104 (Pa. 2001). In Schmidt, the identical argument failed within the context of employees’ compensation. Schmidt held {that a} compensable remedy needn’t be accredited by the FDA and even regulated by the FDA in any respect. “FDA approval of a remedy shouldn’t be a requirement below the [statute], and regardless of that the FDA has not accredited some companies’ advertising and marketing of CBD oil as a dietary complement, its use shouldn’t be in any other case unlawful.” CBD oil is lawfully offered over-the-counter in Pennsylvania. The Pennsylvania Supreme Courtroom noticed its job on this case as statutory interpretation, and browse the statute to imply that “any merchandise that’s a part of a well being care supplier’s remedy plan for a work-related harm falls inside the purview of the broad-encompassing phrase ‘medicines and provides’ within the statute.” The Supreme Courtroom additionally held that the claimant was not a “supplier,” and subsequently didn’t have to submit particular paperwork containing detailed billings and repair codes. It was a whole win for the claimant.
And now we can’t resist saying a number of phrases concerning the claimant’s story. You might need observed that that is a type of circumstances with the identical title on either side of the v. One inevitably thinks of Jaurndyce v. Jaurndyce, the lawsuit in Bleak Home that droned on for many years and visited break on all events. In Schmidt, the plaintiff was a lawyer at a regulation agency bearing that very same title. Is the plaintiff a reputation accomplice within the regulation agency? A relative? Merely somebody with the identical title? (We work at a regulation agency with quite common names above the door and on the prime of the stationery. Absolutely, some fortunately surnamed younger attorneys have joked to their family and friends that they instantly stepped in as title companions at an AmLaw 100 agency.) In any occasion, the Schmidt plaintiff was within the employees’ comp system due to a work-related – right here, authorized work-related – harm. Particularly, the claimant “was squatting to load recordsdata right into a trial bag, tipped the trial bag onto its wheels, skilled ‘a sudden sharp improve in low again and proper leg ache,’ and fell over onto his facet.” One sympathizes. A employees’ compensation choose described the work-related harm as “an aggravation of his preexisting degenerative disc illness at L4-5 and L5-S1 with radiculopathy.” It was a severe harm and the ache “progressively worsened.” The claimant desired “to exhaust all non-surgical choices earlier than present process surgical procedure as a result of inherent dangers related therewith and the probability of a protracted restoration time.” He took opioids a number of occasions per day. Nonetheless, the “intensive driving and sitting in courtroom chairs related to Claimant’s employment continued to worsen his ache.” Once more, one sympathizes. At this level, the claimant’s physician prescribed the CBD oil. The hope was that it could alleviate the ache and keep away from the necessity to up the opioid doses. The excellent news was that the CBD oil appeared to work. The dangerous information was that the employer didn’t want to pay for it. After which the claimant received the adversarial ruling from the employees’; comp board, adopted by the favorable rulings from the Commonwealth and Supreme Courts. And we DDL hacks received a good ruling we would have the ability to use when plaintiffs search to demonize alleged off-label use.
However the Schmidt resolution additionally received us to desirous about authorized work-related accidents. We at the moment are at a sophisticated age after we can tweak our again with none trace of trauma. Merely sitting down or reaching for our cellphone can invite again spasms. One time in our workplace we have been beset by such excruciating again ache that we felt completely immobilized. We contemplated the prospect of planting ourselves at our desk for hours or days, studying advance sheets till some candy launch ended the ache. However it’s not as if we will pinpoint any ache to a sure occasion, such because the Schmidt claimant’s battle with a recalcitrant trial bag. Pondering again, we will dimly recall moments in court docket after we might need torn a meniscus by leaping to a conclusion, or sprained a ligament by stretching an argument. Furthermore, the occasional judicial slap-down has, at a minimal, harm our emotions. However we doubt that even the magnanimous Pennsylvania Supreme Courtroom would deem any of that compensable by employees’ comp or any system. If any of you already know of bizarre authorized work-related accidents, ship them in to us. As Nora Ephron stated, “the whole lot is copy.” If we get sufficient authorized harm tales of woe, we will flip them right into a blogpost. It may not be a very instructive blogpost, however we may all profit by stretching our powers of sympathy. Or perhaps it could simply add as much as schadenfreude, which additionally has therapeutic worth.
