Magazine article HRMagazine

Workers' Comp and Pot: A Toke Too Many?

Magazine article HRMagazine

Workers' Comp and Pot: A Toke Too Many?

Article excerpt

Some states' legalization of medical marijuana can muddle claims.

As more states sanction the use of marijuana to make medical treatment more bearable, the debate about how medical marijuana should be recognized in workers' compensation systems continues. Some answers appear to be, well, hazy. And given rapidly evolving case law in many states, they may become hazier still.

So far, 18 states and the District of Columbia have statutes that allow the use of medical marijuana. Maryland enacted a very narrow medical marijuana statute in May, and 10 additional states currently have pending initiatives to legalize medical marijuana. Two other states, Colorado and Washington, have legalized the drug for recreational purposes. However, such statutes conflict with federal law that defines possession or use of marijuana as a crime.

Workers' compensation benefit systems vary by state. Similarly, many of the general employment and drug enforcement laws arise under state statutes. The intersection of state statutes that decriminalize medically prescribed marijuana and the workers' compensation systems in such states can complicate employers' efforts to implement appropriate losscontrol measures.

Who Pays?

Still, for the moment-and subject to change in a given state-experts' general consensus is that an injured worker's use of medical marijuana in most states, including those with medical marijuana statutes, will not be a compensable benefit.

"Our members have asked, 'Do states allow medical use of marijuana in workers' compensation cases, and, if so, who is required to pay for medical marijuana use?' " says Jennifer Wolf Horejsh, executive director of the Madison, Wis.-based International Association of Industrial Accident Boards and Commissions.

Colorado, Michigan, Montana and Vermont have statutes or regulations clarifying that insurers don't have to pay for it. "For those that don't have explicit denials, it will play out in the case law," she says.

No appellate court or appellate workers' compensation board decision has yet upheld a worker's right to be reimbursed for the cost of medically prescribed marijuana. Such decisions would bind lower courts and workers' compensation boards.

Still, some workers' compensation administrative decisions have allowed reimbursement. In June 2012, in Cockrell v. Farmers Insurance Co., a California workers' compensation judge awarded a worker reimbursement for medically recommended marijuana that he had acquired to relieve pain after spinal surgery. Marijuana was prescribed as an alternative to OxyContin because of alleged complications arising from the employee's use of that drug.

But in September 2012, a workers' compensation appeals board panel granted a request for reconsideration of that decision, rescinding the judge's finding and ordering the judge to consider a state law provision stating that "Nothing in this article shall require a governmental, private, or any other health insurance provider or health care service plan to be liable for any claim for reimbursement for the medical use of marijuana."

And, in 2002, in McKinney v. Labor Ready and Reliance Insurance Co., a deputy workers' compensation commissioner in Iowa allowed an employee who was living in Oregon to recover for an Iowa workers' compensation claim for medical marijuana, notes Lee Hook, a partner at Peddicord, Wharton, Spencer, Hook, Barron & Wegman LLP in Des Moines, Iowa. Oregon has a medical marijuana statute.

It is conceivable that an injured worker with an accepted workers' compensation claim who has a prescription for medical marijuana connected to treating the compensable condition may be entitled to reimbursement for the cost of the prescribed drug, says George Goodman, a shareholder at Cummins, Goodman, Denley & Vickers PC in Newberg, Ore. "For example, a worker with an accepted cancer claim whose doctor prescribes marijuana to stimulate the appetite during chemotherapy would have a good chance of that being found a compensable medical benefit in many states. …

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