Medical cannabis (marijuana) is an issue that will not go away. As more states legalize its use for an expanding list of medical ailments and recreational use, it will gain acceptance when treating work injuries. This creates an opportunity for interested stakeholders in the system to express their views to policymakers and develop effective techniques for handling these claims.
This is Part 2 of a 2-part Series on Medical Marijuana
Common Objections to Medical Cannabis in Work Comp
The possibility of adverse legal action against a workers’ compensation insurance carrier to paying for directly, or reimbursing an injured employee for expenses associated with this treatment modality is based on several different theories. Common objections to paying for this medical care are as follows:
- Paying for medical cannabis violates the Controlled Substances Act (CSA), and other federal laws:
- Federal law trumps state laws allowing for the possession and use of Schedule I controlled substances such as marijuana; and
- State laws governing the use of marijuana for qualifying conditions are outside the scope of the state workers’ compensation act.
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Numerous other augments can be made. To date, there are no documented instances of claim handlers or defense attorneys who have been arrested or prosecuted by state or federal officials who were involved in cases dealing with the ultimate approval by a court and payment for medical marijuana treatment.
Case Law to Consider When Opposing Medical Cannabis
Many state courts have started to weigh in on this issue in terms of compensability in workers’ compensation cases. Here is a sample of relevant case law:
- In re Armendariz v. Chief Masonry, 2014 WL 3886663 (Colo. Ind. Cl. App. Off. 2014): The Court approved payment for the prescription drug Marinol, which is a pharmaceutical cannabinoid product. The decision includes a discussion of payment related to this product versus medical marijuana..
- Bourgoin v. Twin Rivers Paper Co., 187 A.3d 10 (Me. 2018): The Maine Supreme Court examined the conflict between federal and state law regarding the medicinal and other uses of marijuana. The Court found federal law to supersede state law on the issue. It is important to note that in two previous instances, the Maine Workers’ Compensation Board had seen the use of medical cannabis not to be reasonable and necessary.
- Vialpando v. Ben’s Automotive, 331 P.3d 975 (N.M. Ct. App. 2014): In approving the use and reimbursement of marijuana in a workers’ compensation case, the Court noted the employer and insurer would not violate federal law. A similar result was reached in the workers’ compensation courts in Maez v. Riley Industrial, 2013 WL 4238545 (N.M. Workers’ Comp. Admin. 2013), and Lewis v. American General Media, 2013 WL 6517276 (N.M. Workers’ Comp. Admin. 2013).
Effective Defense of Medical Cannabis in Your Claims
Claim handlers and defense attorneys need to be proactive when it comes to defending cases involving marijuana. If you are not willing to make the “constitutional” case and take it to a state supreme court and beyond, it is better to focus on the merits of the claim, versus wasting times on what can be considered “throwaway arguments.” Areas of focus instead should include:
- Specifically close out future medical cannabis, marijuana, and cannabidiol (CBD) treatments when settling a workers’ compensation claim. This precludes future litigation regarding these issues.
- Challenge the applicable state certification procedure for the use of medical cannabis, if applicable. Note that industrial commissions and other administrative agencies deciding workers’ compensation disputes may not have jurisdiction over this issue.
- Scrutinize medical records from the injured employee related to their past, present, and recommended future medical care and treatment. Arguments can be made that other alternatives may be available based on evidence-based medicine protocols.
- The reasonableness and necessity of the proposed care. This comes down to an evaluation of a variety of factors. These can include the following considerations: whether the treating doctor evidence of a reasonable treatment plan; documentation of the details of the treatment; the degree and duration of relief resulting from the treatment; the frequency of treatment; the relationship of the treatment to the goal of returning the employee to suitable employment; potential aggravation of underlying conditions; the duration of the treatment; and cost.
The issue of “intoxication” from marijuana is a significant concern in nearly every workplace. Arguments can be made regarding this, and other employment-related issues.
The use of medical cannabis will only grow in popularity as societal attitudes change. This will require members of the claim management team to better understand this issue, as its legal ramifications. Claim handlers should also adapt their best practices by understanding the applicable statutes and rules on a state and federal level, and then develop effective best practices.
Author Michael Stack, CEO Amaxx LLC. He is an expert in workers’ compensation cost containment systems and helps employers reduce their workers’ comp costs by 20% to 50%. He works as a consultant to large and mid-market clients, is a co-author of Your Ultimate Guide To Mastering Workers Comp Costs, a comprehensive step-by-step manual of cost containment strategies based on hands-on field experience, and is the founder & lead trainer of Amaxx Workers’ Comp Training Center.
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Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker, attorney, or qualified professional.