Court orders workers comp board to consider paying for medical marijuana
WORKERS COMP LEGAL UPDATE
As you can see from this article (click HERE), the New Hampshire Supreme Court overruled that state’s Industrial Commission when that Commission refused to order a carrier to pay for medical marijuana.
“Because the board found that (claimant’s) use of medical marijuana is reasonable, medically necessary, and causally related to his work injury, the high court said the board erred when it determined that the insurance carrier is prohibited from reimbursing claimant for the cost of purchasing medical marijuana.
The insurance carrier argued that if it is ordered to reimburse the employee for the payment of medical marijuana, “it would be in express violation” of federal laws that prohibit a person from knowingly possessing marijuana.” “
IMPLICATIONS FOR MISSOURI
In November, 2018, Missouri voters approved Medical Marijuana, and regulations are currently being drafted and evaluated. (https://fox4kc.com/2019/03/12/regulations-for-missouris-medical-marijuana-industry-continue-to-roll-out/ )
If a doctor authorized by the Employer/Insurer prescribes medical marijuana after the Medical Marijuana law goes into effect, will the carrier be forced to pay for this? That question cannot be answered until the regulations are finalized and published, which should occur in June, 2019. Clearly, there will be a push to allow doctors to use medical marijuana even in situations involving work injuries. However, since the regs will be published by an Employer-friendly administration, I’m looking for safeguards to ensure that Employers will NOT have to pay for medical marijuana.
Also, since the Employers control the medical, Employers and Carriers can simply use doctors who will not prescribe medical marijuana. I do not expect this to change in any way regardless of the wording of the pending regulations.
IMPLICATIONS FOR ILLINOIS
The current Medical Marijuana Law in Illinois has been in effect for several years. Under current law, must an Employer or Insurer pay for medical marijuana prescribed to treat a work-related injury?
Several states with medical cannabis statutes specifically contain language that employers do not have to pay for medical cannabis. The Illinois Act remains silent on this issue.
As you can see from the case in New Hampshire, the lack of language in the medical marijuana law indicating that Employers can’t be forced to pay for pot shows that this loophole will be exploited to force Employers to pay for weed if it is prescribed by a doctor to treat a work injury. There are no current Commission or Appellate decisions in Illinois indicating that Employers must pay for medical marijuana, but I believe it is only a matter of time before this happens.
Finally, the Illinois Medical Marijuana Law is set to expire in July of 2020. Given the current politics in Illinois (the new governor wants to legalize recreational marijuana), subsequent legislation will most likely mandate payment for medical marijuana if it is prescribed to treat a work injury. Since the claimants in Illinois chose their own doctors, this will be a large issue down the road.
If you have a case where a doctor is prescribing medical marijuana, the 2 best ways to fight this are:
- Obtain a utilization review for the use of medical marijuana. A UR review denying the reasonableness or necessity of medical marijuana will provide a basis to deny any payment for medical marijuana.
- Obtain an IME. Most IME doctors would readily concede the use of medical marijuana is not reasonable or necessary because of the untested status of long-term usage of marijuana to treat injuries. This too would allow an employer or carrier to deny reimbursement for medical marijuana.
I will keep you updated on this issue as new legislation and regulations are passed. If you want to discuss this in greater detail, please let me know.