Medical Marijuana Treatment Slowly Gains Traction in Workers’ Comp

By Denise Johnson | February 20, 2018

Though states and the federal government remain at odds on marijuana legalization, the drug is gaining traction as a viable treatment in workers’ comp claims. In a recent discussion with Claims Journal, Brian Allen, vice president of government affairs for Mitchell, and Mark Pew, senior vice president of PRIUM, a division of Genex Services LLC, provided insight on pending workers’ compensation cases involving medical marijuana reimbursement and on the federal government’s recent announcement regarding marijuana enforcement.

According to Pew, most of the states in the U.S have legalized marijuana either in medical or recreational form, while several more are considering marijuana proposals.

In the states that allow medical marijuana, there have been exemptions primarily targeting health insurers who pay for the drug treatment, said Allen.

“It creates a bit of a gray area or some ambiguity for workers’ comp insurers,” said Allen.

Some cases that have been adjudicated relate to self-insured employers, he said, that neither fall into the private or workers’ comp insurer category. Many states have remained silent on the issue of payment by an insurer.

“It’s still a question in a number of states,” he added.

In 2015, the Minnesota Department of Labor and Industries released a ruling allowing medical marijuana coverage under workers’ compensation.

A lot of court decisions have been driving reimbursement, said Pew, who has been focused on the intersection of chronic pain and appropriate treatment since 2003.

In states where decisions are still pending, like the case of Bourgoin v. Twin Rivers Paper Mill and Sedgwick Claims Management Services, awaiting a decision by the Maine Supreme Court, and Petrini v. Marcus Dairy, Inc. and Gallagher Bassett Service on appeal with the Connecticut Court of Appeals, it’s likely Courts will rule in favor of the plaintiff, according to Allen, since it’s clear that doctors could document medical improvement.

The risk of prosecution for paying for medical marijuana treatment was negligible under the previous administration, said Allen, adding that the Controlled Substances Act doesn’t contain any specific language outlining an insurer could be prosecuted for reimbursement. He added that state courts are unlikely to defer to federal law, so feds won’t get much support in pursuit of prosecution.

Reimbursement for medical marijuana is also being done on a voluntary basis, Pew said, either because it is deemed a reasonable and necessary treatment and also because it is typically cheaper than other treatment options.

“The decision is really based on whether that patient is achieving benefit from it,” he said.

Some states have laws explicitly stating that an employer or workers’ compensation insurer is not required to pay for medical marijuana.

Arizona passed legislation that amended its medical marijuana law, emphasizing the Act’s language doesn’t require a workers’ comp carrier or self-insured employer to reimburse for medical marijuana treatment costs.

Pew said that those carriers and self-insured employers paying for medical marijuana treatment are not necessarily making it public. Connecticut, Delaware, Maine, Massachusetts, Minnesota, New Jersey and New Mexico are seven states where payment has been publicly documented.

“I think any court is probably going to lean towards the anecdotal story of the individual patient and if its helping with their pain and it’s reasonable and necessary based on the advice of doctors in that state, I would assume that most states are going to come to that same conclusion, said Pew.

According to Allen, courts are reluctant to get in between a doctor-patient relationship.

“I think the courts are going to defer to the doctors every time,” said Allen.

Opioid Alternative

With so much media attention surrounding overdoses and overprescribing issues related to opioids, both experts opined that marijuana could be an alternative.
The groundwork is there, said Allen, who noted that anecdotal evidence on medical marijuana suggests it may work in some cases. The problem is the drug’s side effects are largely unknown.

“They talk about the pluses, we really don’t hear a lot about the minuses, and we know there are some out there,” Allen said, adding that THC may be most problematic aspect of marijuana.

Pew explained that marijuana is the only drug with a self-guided dosage, with no real guidance from a doctor or pharmacist.

Though there are more knowns that unknowns, Pew said he’s heard many stories of its benefits.

Marijuana is still illegal at the federal level and is classified as a Schedule I drug under the federal Controlled Substances Act. Last month, the Department of Justice released a memo indicating that marijuana enforcement would be at the discretion of local assistant U.S. Attorneys. Because they are political appointees, Allen doesn’t see them going against popular opinion. It’s unlikely they would pursue a medical marijuana case, unless there was some “egregious abuse.”

“I don’t see any U.S. attorney in any of the states making a conscious decision to prosecute medical marijuana users,” said Allen, a former state legislator with more than 25 years of political and government relations experience.

Pew said there’s too much money tied to marijuana.

“It’s a $1.2 billion business in Colorado,” he said.

From a financial standpoint, it’s unlikely there will be any prosecution related to legalized marijuana because cities, municipalities and even some schools have marijuana income outlined in their budgets.

Both said there is a disconnect between the states and the federal government with respect to the laws governing marijuana.

“The states are way ahead of Congress on this issue,” said Allen.

Before it can be rescheduled, Pew said more research needs to be done since little is known about the many chemicals within marijuana.

“Just saying we’re going to reclassify marijuana or make it legal, it’s much more complicated,” Pew said.

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