Medical Marijuana Ruling May Impact Workers' Comp

Monday, January 4, 2016 | 0

A decision last month by Minnesota's health commissioner to include intractable pain as a condition that can be treated with medical marijuana opened a door for claimants' attorneys to argue that workers' compensation insurers should reimburse their clients for pot.

At least one Minnesota attorney has already filed a claim for medical marijuana use by a workers’ comp claimant.

Attorney Thomas Atkinson said the insurance company in his client’s case denied the claim, and he’s now filed a request for a state workers’ compensation specialist to review it. The specialist’s opinion can be appealed to an administrative law judge for a full hearing. Atkinson said it would take nine to 10 months for the claim to get to that point.

Atkinson said the claim was the first one of its kind that he was aware of in Minnesota, but he expects many more to follow. The addition of intractable pain to the list of qualifying conditions could greatly expand the number of patients using medical marijuana in Minnesota, he said. About 800 patients had registered in the state’s cannabis program as of late December, six months after the program launched.

“It’s a much bigger group of people,” Atkinson said of patients with intractable pain. “I would expect it to be thousands in a couple of years.”

Medical marijuana has gained a foothold in workers’ compensation in only one state so far. In three decisions, the New Mexico Court of Appeals ruled that employers must pay for marijuana when an injured worker's treating physician recommends it. The New Mexico Workers' Compensation Administration in October proposed rules that would add marijuana to its fee schedule. The proposed rules would allow reimbursement of injured workers for up to half a pound of marijuana every three months, but would prohibit reimbursement for paraphernalia such as smoking pipes.

Insurance companies want to avoid paying for medical marijuana because the substance remains illegal under federal law. In April, Arizona enacted a law that says workers' compensation carriers and self-insured employers can't be forced to buy medical marijuana for injured workers. But the laws vary by state.

Alan Rook, a clinical pharmacist with MyMatrixx, discussed the medical marijuana issue in a blog post.

“Both employers and the workers’ compensation industry would be greatly aided in the challenges they will be facing if the states that will be addressing legislation in the future would consider having strong, unambiguous language in their laws regarding … the exclusion of marijuana in workers’ compensation,” Rook wrote.

Kevin Glennon, vice president of operations at One Call Care Management, noted during a presentation at the National Workers’ Compensation and Disability Conference in November that the differences in state and federal law create some interesting situations.

“As a Schedule I drug, marijuana is still illegal under federal law,” Glennon said. “As a result, New Mexico employers could cover medical marijuana, but if they have a zero-tolerance drug policy, those same employees could potentially be terminated if they test positive for medical marijuana in a random drug test.”

And large-scale trials of marijuana’s effectiveness at treating pain won’t be possible in the U.S. while the drug is still illegal, Glennon said. While some clinical trials have shown its effectiveness, Glennon said, those studies have been relatively small.

The implications for Minnesota’s workers’ compensation system now that intractable pain is a qualifying condition for medical marijuana are still being determined, according to a spokeswoman with the Minnesota Department of Labor and Industry. The department might make a statement on the issue this week, she said.

The Minnesota legislature in 2014 passed a law creating the state's medical cannabis program. The program allows the use of medical marijuana in forms such as liquids, vapors or pills when a doctor certifies it is needed for treatment of a qualifying condition. Smoking marijuana is not allowed under the law.

The initial list of qualifying health conditions included glaucoma; HIV/AIDS; Tourette’s syndrome; amyotrophic lateral sclerosis; seizures; severe muscle spasms; Crohn’s disease; and chronic pain or nausea associated with cancer or other terminal illness.

The law also directed the health commissioner to decide whether intractable pain should be added to the list of conditions. And on Dec. 2, following 13 public meetings and an online comment period, Minnesota Health Commissioner Dr. Ed Ehlinger announced his decision to do so.

Ehlinger said the scarcity of firm evidence regarding medical marijuana’s effectiveness for treating pain made the decision difficult. But he said he was reassured by the medical focus of Minnesota’s cannabis program and convinced by the testimony of hundreds of people that the move would be the compassionate thing to do.

Patients certified as having intractable pain now will be eligible to receive medical cannabis from state-approved cannabis manufacturers on Aug. 1.

Atkinson, the attorney, described the state’s definition of intractable pain as “wishy washy” and said it’s likely to spark disputes.

Minnesota law defines intractable pain as a condition “in which the cause of the pain cannot be removed or otherwise treated with the consent of the patient and in which, in the generally accepted course of medical practice, no relief or cure of the cause of the pain is possible, or none has been found after reasonable efforts.”

Atkinson said he was looking for the right type of client to represent in his first workers’ comp medical marijuana claim.

The client he selected was injured at work more than two decades ago and has had two back surgeries since then. His injury prevented him from returning to the job in which he was injured, but he has gone through training to work in information technology, which he now does full time. But his pain might prevent him from continuing to work full-time, and he doesn’t want to take opioids. The client has been certified to receive medical marijuana for muscle spasms and has been paying for the pot himself.

Medical marijuana is a good alternative to opioids for treating chronic pain, Atkinson said.

“There’s this big push away from opiates,” Atkinson said. “This is something that could fill in the gap, with far fewer side effects and frankly, a lot less expensive.”