Reefer Madness

Thursday, November 15, 2012 | 0

Last week a majority of Colorado and Washington voters voted to loosen restrictions on marijuana production and use. Currently it is unknown what the federal response will be towards these state efforts. In the last few years in California, pot dispensaries have largely been untouched by federal regulators. But there have been exceptions, such as the 2012 crackdown against large pot dispensaries in Oakland.

Still, the trend is towards greater public acceptance of marijuana.

Against this backdrop, I noted an interesting article in the LexisNexis Workers Comp eNewletter, titled "Up in Smoke: Should Medical Marijuana be Allowed in the California Workers' Comp System?"

The Lexis Nexis commentator notes that Labor Code Section 4600 governs medical treatment for work injuries. That treatment standard is "cure or relieve." Labor Code 4600(a) refers to the Medical Treatment Utilization Schedule adopted by the Division of Workers' Compensation administrative director pursuant to Labor Code Section 5307.

Moreover, as the commentator notes, California Health and Safety Code Section 11362, the Compassionate Use Act of 1996, allows Californians to obtain and use medicinal marijuana that has been prescribed by a physician.

So, the question goes, could a worker be reimbursed for purchasing marijuana? If a primary treating physician prescribes marijuana, can the carrier be compelled to pay for it?

The LexisNexis article notes that this question arose in a recent California case, Cockrell v. Farmers Insurance, 2012 Cal. Wrk. Comp P.D. Lexis 456. In that case the injured worker was a lawyer who had self procured marijuana after suffering a work injury. At the trial level the worker prevailed on his reimbursement claim, obtaining a decision from the judge allowing for reimbursement of the costs of obtaining the marijuana. Apparently an agreed medical examiner had endorsed the idea.

But the WCAB panel reversed and remanded the case to the workers' compensation judge, relying on Health and Safety Code 11363.785(d), which says 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."

Perhaps the Cockrell case will wind up back at the WCAB panel level again, since the interplay between Labor Code 4600 and Health and Safety Code 11363.785(d) has still not been conclusively interpreted.

And in any event, this issue is likely to surface again in other cases. With marijuana use moving "more mainstream," the issue will come up again and again, as the stigma of use is removed.

That's not to say that this is a good thing. Workerscompzone has serious concerns about this trend.

But workers' comp is a product of societal forces, and the pressure to have marijuana accepted by-and paid for-by comp will be substantial.

Julius Young is a claimant's attorney for the Boxer & Gerson law firm in Oakland. This column was reprinted with his permission from his Workers Comp Zone blog.