Scott M. Tilley, Esq.
Workers' Compensation is Going to Pot: The Status of Medical Marijuana in Workers' Compensation
From the Desk Of: Scott M. Tilley, Esq. Managing Attorney, San Bernardino Certified Specialist, Workers' Compensation Law, The State Bar of California, Board of Legal Specialization
As our country inches closer and closer to legalizing marijuana for recreational use, the issue of what role the budding medication plays in workers' compensation is quickly evolving. Courts and state legislatures around the country are addressing this issue.
Six states - Connecticut, Maine, Massachusetts, Minnesota, New Jersey and New Mexico - have found medical marijuana treatment is reimbursable under their workers' compensation laws. Six states preclude a carrier from being ordered to pay for medical marijuana in a workers' compensation case - Arizona, Colorado (of all places), Michigan, Montana, Oregon and Vermont. Now another state is joining the party. On September 13, t he Maine Supreme Judicial Court heard oral arguments to decide if state law requires a workers' compensation insurance carrier to pay for a mill-worker's medical marijuana or if the insurer could be charged as an accessory in a drug deal under federal law. The injured worker, Gaetan Bourgain, was employed with a mill, now known as Twin Rivers Paper Company, when he suffered an admitted work injury in 1989. He sought reimbursement for medical marijuana he was prescribed due to his back pain after years of unsuccessful treatment with opioids. In 2015, the Maine Workers' Compensation Board ordered Sedgwick Claims Management Services of Memphis, the third party that administers Twin Rivers' workers' compensation program, to reimburse Bourgoin for his medical marijuana. The cost of the medical marijuana runs between $350 and $400 a month compared to the more than $2,000 a month for his opioid-based prescription painkillers. Attorneys for the mill and Sedgwick appealed the decision, arguing that an insurer cannot be ordered to pay for marijuana since it is illegal under federal law, which overwrites state law. Further, they argued that the U.S. Department of Justice could prosecute insurance companies for reimbursing people for purchasing illegal drugs. In addition to the conflict between state and federal marijuana laws, the defense argued that requiring reimbursement for medical marijuana violates the Maine statute that legalized the drug for medicinal use. The Maine Medical Use of Marijuana Act states that it may not "require a government medical assistance program or private health insurer to reimburse a person for costs associated with the medical use of marijuana." The applicant's attorney countered that the state's workers' compensation law states that employees injured on the job are "entitled to reasonable and proper medical, surgical and hospital services, nursing, medicines, and mechanical, surgical aids, as needed, paid for by the employer." Marijuana, in this case, would fall under "medicines," applicant's attorney argued. The Maine case is presently under submission and we expect a decision towards the end of the year. Only one other state's court system has ventured into this smoky territory. New Mexico's appellate court has ruled on reimbursement by insurers for medical marijuana. In three different cases since 2014, New Mexico justices have ruled that state law requires insurance companies pay for medical marijuana. Where is California in all of this? Well, the California Health and Safety Code section 11362.785(d) states that the State's Medical Marijuana law does not require a health insurance provider or health care service plan to reimburse for medical marijuana. The issue of whether Workers' Compensation carriers or self-insured workers' compensation plans are "health insurance providers" or health care service plans" has not been fully adjudicated. One case, Cockrell v. Farmers (2012), started to address the issue but the case was resolved before the issue was fully dealt with. In another case, Pedro de Dios v. Carroll's Tire Warehouse (2013), the Board held that a carrier was not liable for reimbursement of medical marijuana as per the Health and Safety Code section noted above. The applicant in Dios did not appeal the decision so we do not know what the appeals court would have to say on the issue for California. However, with the trend moving in the direction of legalization, I suspect the applicant would receive a favorable decision from the "high" court. Until then, California workers' compensation applicants will have to find their relief with opioids and the system will have to deal with the fallout of addicted applicant's and their resulting comorbidities.