Work it Out Blog

Medical Marijuana and Workers' Compensation Claims

Aug 12, 2015 by Stephen E. Matasich

Supporters have officially obtained enough signatures to place an initiative on this year’s ballot to make Ohio the 24th state to legalize marijuana for medical use (and the 5th for recreational use).  Even if this constitutional amendment fails, future attempts may prove successful as more people support the use of medical marijuana.  For workers’ compensation, medical legalization presents a number of potentially good and bad issues.

Concerns
First, the bad.  Marijuana is still considered an illegal substance under federal law under the Controlled Substances Act.  Thus, permitting its use for injured workers would result in potential criminal liability.  While President Obama has chosen not to enforce this part of the law, a change in the Executive Branch could result in a change in this no-enforcement policy – some 2016 Republican candidates promise as much if elected.  Medical marijuana is also still not viewed as safe or effective by the U.S. Food and Drug Administration.

The second concern is that, to date, there is no empirical evidence to support that marijuana is effective in treating injuries.  Current literature documents various uses of medical marijuana, but a large-scale randomized and controlled human clinical trial has not yet been conducted to verify these benefits.  The Ohio Bureau of Workers’ Compensation and other payors rely on evidence-based guidelines in making treatment decisions.  Currently, medical marijuana is not part of any treatment guideline, including the Official Disability Guidelines or the American College of Occupational and Environmental Medicine Practice Guidelines.  As such, many workers’ compensation payors throughout the country are choosing to categorically deny coverage based on this alone. 

There is also the question of work performance.  Although the effects differ by individual and are dependent on frequency of use and dosage, studies show that marijuana can impair cognition, balance and coordination, decrease alertness, and delay reaction time.  These effects pose safety hazards, especially when users operate heavy machinery or drive vehicles.  Marijuana use can also cause or exacerbate problems in daily life, increase absences, tardiness, accidents, and job turnover according to the National Institute on Drug Abuse.

If medical marijuana becomes a reality to treat workplace injuries, employers would need to amend their drug free workplace programs.  This could be a potential problem for employers who receive federal funds.  Still, employers could continue to institute a zero-tolerance drug policy based on a recent Colorado decision we covered in last month’s newsletter. 

Why Might the BWC Allow Treatment with Medical Marijuana?
There are some reasons medical marijuana could become a standard of care in the future.  First, the use of medical marijuana may become a possible alternative for pain management.  The use of opioid prescription pain killers often leads to abuse.  Studies have shown the effect when using marijuana with opioids might lower opioid dosage and abuse.  Many proponents believe clinical trials should be allowed to proceed to find out if this is true.

In New Mexico, a court ruled that the workers’ compensation insurance company had to reimburse an injured worker for medical marijuana.  A former mechanic suffered back injuries and a doctor authorized a license for him to use medical marijuana after traditional medical therapies and use of Percocet, Oxycodone, and Hydrocodone failed to treat chronic back pain and a herniated disc.  Arguably, the ruling by the court provided “cover” for the payment of using an illegal drug. 

Another issue in favor of medical marijuana use is the increasing and strong support in national polls.  A growing majority of Americans believe that medical marijuana with a physician’s recommendation should be legal.  Finally, as more states legalize medical marijuana, its regulation and control can become a source of revenue for states. 

What Should You Do Now to Protect Your Business?
Employers can take some actions now to deal with the issue, regardless of whether medical marijuana becomes legal in Ohio.  This would include:

  • Review employee handbooks and personnel policies with legal counsel and human resource professionals and clearly communicate expectations regarding medical marijuana to workers.
  • Establish workers’ compensation policies and equip claims handlers and HR professionals with policies rather than leaving them to use personal judgment.
  • Stay current with new cases, judgments and verdicts, as well as public and political trends that could forecast a tipping point toward change and reclassification.

If you have any questions please contact Stephen Matasich at sematasich@dayketterer.com, or your Day Ketterer attorney at info@dayketterer.com.  Our workers' compensation and HR attorneys stand ready to assist you as these and other fast changing developments occur. 

The content of this blog is for informational purposes only and is not intended as legal advice for any purpose. This blog is not intended to present an exhaustive summary of all applicable laws, or to take the place of legal advice.  If you have any questions regarding the law, please contact us for assistance.