You can find useful legal precedents in surprising places.  For example, Schmidt v. Schmidt, 2025 Pa. LEXIS 389 (Pa. March 20, 2025), is an interesting off-label use decision coming in a context that that most litigants of such cases will miss: a workers’ compensation case.  But if you have been following this blog, Schmidt will not be much of a surprise, because we covered the earlier ruling in that case here.  In that earlier ruling, a majority of the Pennsylvania Commonwealth Court held that where a doctor prescribed a cannabis oil (CBD) to a workers’ compensation claimant for treatment of pain from a workplace injury, the purchase of the CBD is reimbursable by the workers’ compensation system.  The workers’ comp board had denied coverage, leaning heavily on the refusal of the Food and Drug Administration (FDA) to approve medical use of CBD.  The Commonwealth Court overturned the workers’ comp board.  The majority opinion reasoned that the FDA’s non approval of CBD (indeed, the FDA had even pursued off-label prosecutions against some CBD sellers), did not affect the legality or reimbursability of the CBD in this case.

Now the Pennsylvania Supreme Court has unanimously affirmed the Commonwealth Court and held that an off-label use of the CBD (a use that the FDA “has concluded that it has not been proven safe or effective”) does not make prescription of the product illegal.  That’s right, the employer in Schmidt made essentially the same off-label = illegal argument that we DDL bloggers have been opposing since the Bone Screw litigation of the 1990s. That argument failed then, in the context of product liability/medical malpractice. See Southard v. Temple Univ. Hosp., 781 A.2d 101, 104 (Pa. 2001). In Schmidt, the same argument failed in the context of workers’ compensation. Schmidt held that a compensable treatment need not be approved by the FDA or even regulated by the FDA at all.  “FDA approval of a treatment is not a requirement under the [statute], and despite that the FDA has not approved some firms’ marketing of CBD oil as a dietary supplement, its use is not otherwise illegal.”  CBD oil is lawfully sold over the counter in Pennsylvania. The Pennsylvania Supreme Court saw its task in this case as statutory interpretation, and read the statute to mean that “any item that is part of a health care provider’s treatment plan for a work-related injury falls within the purview of the broad-encompassing phrase ‘medicines and supplies’ in the statute.”  The Supreme Court also held that the claimant was not a “provider,” and therefore did not need to submit specific paperwork containing detailed billings and service codes.  It was a complete win for the claimant.

And now we cannot resist saying a few words about the claimant’s story.  You might have noticed that this is one of those cases with the same name on both sides of the v.  One inevitably thinks of Jaurndyce v. Jaurndyce, the lawsuit in Bleak House that droned on for decades and visited ruin on all parties.  In Schmidt, the plaintiff was a lawyer at a law firm bearing that same name.  Is the plaintiff a name partner in the law firm?  A relative?  Merely someone with the same name?  (We work at a law firm with very common names above the door and at the top of the stationery.  Surely, some luckily surnamed young lawyers have joked to their friends and family that they immediately stepped in as name partners at an AmLaw 100 firm.) In any event, the Schmidt plaintiff was in the workers’ comp system because of a work-related – here, legal work-related – injury.  Specifically, the claimant “was squatting to load files into a trial bag, tipped the trial bag onto its wheels, experienced ‘a sudden sharp increase in low back and right leg pain,’ and fell over onto his side.”  One sympathizes.  A workers’ compensation judge described the work-related injury as “an aggravation of his preexisting degenerative disc disease at L4-5 and L5-S1 with radiculopathy.”  It was a serious injury and the pain “progressively worsened.” The claimant desired “to exhaust all non-surgical options before undergoing surgery due to the inherent risks associated therewith and the likelihood of a prolonged recovery time.”  He took opioids multiple times per day.  Nevertheless, the “extensive driving and sitting in courtroom chairs associated with Claimant’s employment continued to aggravate his pain.”  Again, one sympathizes.  At this point, the claimant’s doctor prescribed the CBD oil.  The hope was that it would alleviate the pain and avoid the need to up the opioid doses.  The good news was that the CBD oil seemed to work.  The bad news was that the employer did not wish to pay for it.  And then the claimant got the adverse ruling from the workers’; comp board, followed by the favorable rulings from the Commonwealth and Supreme Courts.  And we DDL hacks got a favorable ruling we might be able to use when plaintiffs seek to demonize alleged off-label use.

But the Schmidt decision also got us to thinking about legal work-related injuries.  We are now at an advanced age when we can tweak our back without any hint of trauma.  Merely sitting down or reaching for our phone can invite back spasms. One time in our office we were beset by such excruciating back pain that we felt utterly immobilized. We pondered the prospect of planting ourselves at our desk for hours or days, reading advance sheets until some sweet release ended the pain. But it is not as if we can pinpoint any pain to a certain event, such as the Schmidt claimant’s battle with a recalcitrant trial bag.  Thinking back, we can dimly recall moments in court when we might have torn a meniscus by leaping to a conclusion, or sprained a ligament by stretching an argument.  Moreover, the occasional judicial slap-down has, at a minimum, hurt our feelings.  But we doubt that even the magnanimous Pennsylvania Supreme Court would deem any of that compensable by workers’ comp or any system.  If any of you know of weird legal work-related injuries, send them in to us.  As Nora Ephron said, “everything is copy.”  If we get enough legal injury tales of woe, we can turn them into a blogpost.  It might not be a particularly instructive blogpost, but we could all benefit by stretching our powers of sympathy.  Or maybe it would just add up to schadenfreude, which also has therapeutic value.