Medical Marijuana and Ariz. Workers' Compensation
Wednesday, April 17, 2013 | 0
Arizona voters passed the Arizona Medical Marijuana Act in November 2010, and since then, the Arizona Department of Health Services has developed a medical marijuana program to administer the certification of qualifying patients and license the dispensaries. The first dispensary was opened in December 2012, after Maricopa County Attorney Bill Montgomery unsuccessfully challenged ADHS’s authority to license marijuana dispensaries. Mr. Montgomery has appealed the court’s ruling and continues to argue that the AMMA is in violation of the federal Controlled Substances Act.
In the meantime, however, the AMMA is in effect and patients who hold a valid medical marijuana card are protected from state prosecution for using marijuana. This presents concerns for employers, carriers and third-party administrators in the workers’ compensation industry, so my intent with this article is to inform you about how the AMMA works and what it allows and disallows.
The Construct of the Statute
The purpose of AMMA is to protect seriously ill patients from state prosecution for using medical marijuana under their doctor’s recommendation. It allows a “qualifying patient” to possess up to 2.5 ounces of usable marijuana or 12 marijuana plants. ADHS only issues medical marijuana cards to “qualifying patients,” and in order to be deemed a qualifying patient, the individual must suffer from a “debilitating medical condition.”
The statute defines a “debilitating medical condition” as follows:
- Cancer, glaucoma, HIV+, AIDS, hepatitis C, ALS, Chrohn’s disease, Alzheimer's or the treatment of these conditions;
- A chronic or debilitating disease, medical condition or its treatment that produces:
- Cachexia or wasting syndrome,
- Severe and chronic pain,
- Severe nausea,
- Seizures,
- Severe and persistent muscle spasms.
The physician that prescribes marijuana must make or confirm the diagnosis of a debilitating medical condition and must examine the patient regarding the debilitating medical condition within 90 days of prescribing marijuana. The physician must also review the patient’s medical records for the past 12 months to evaluate the patient’s responses to other forms of treatment. Finally, the physician must fill out a document to attest that the patient is likely to receive a therapeutic benefit to alleviate the effects of the debilitating condition.
ADHS will permit one dispensary for every 10 pharmacies permitted each year. The dispensaries must be operated as not-for-profit entities, and must contract with an Arizona-licensed physician to act as its medical director. ADHS does not provide a list of dispensaries to the public; rather, it will provide a list to a qualifying patient when it assigns the person a medical marijuana card.
Impact on Employers
The AMMA precludes Arizona employers from discriminating against marijuana cardholders in hiring, terminating or imposing employment conditions. However, if an employer is at risk for losing benefits under federal law, it is not precluded from discriminatory practices.
Furthermore, employers cannot penalize a cardholding employee for a positive drug test, unless the employee used, possessed or was impaired by marijuana on the employer’s premises or during the employee’s working hours. In other words, the mere fact that a cardholding employee’s drug test is positive for marijuana metabolite is not sufficient for the employer to penalize the employee. In the absence of evidence that the employee used or possessed the marijuana on the premises or during working hours, there must be evidence that the employee was impaired by marijuana. Because our statute is relatively new, we have not had any cases that lend us guidance as to what constitutes “impairment.”
ADHS has an online verification system that employers may access to verify whether an employee’s marijuana card is valid. However, employers’ access to the system is limited to verifying a card that the employee produces; employers cannot access the system to check whether it is employing any cardholders.
Impact on Workers’ Compensation Benefits
It has already been established that a workers’ compensation claim cannot be denied solely on the basis that an injured worker has marijuana (or alcohol or other drugs) in his/her system. As long as the necessary risks and dangers of the employment cause or contribute to the injury, the claim is compensable even in the face of a positive drug test. (See Grammatico v. Industrial Comm’n, 117 P.3d 786; 2005).
If an injured worker is prescribed marijuana for an industrial injury, does the carrier have to pay for or reimburse the injured worker for the marijuana? Because our statute is relatively new, we have not had an opportunity to see how this plays out in our workers’ compensation arena. However, our neighbor to the west recently took this issue up.
In Cockrell v. Farmers Insurance and Liberty Mutual Insurance Company, an injured worker sought to have the California Workers’ Compensation Judge order the carrier to reimburse him for the costs associated with purchasing marijuana that had been prescribed by a physician. The evidence showed that the injured worker had complications with using Oxycontin, so the marijuana was intended to replace that medication. The judge awarded the injured worker reimbursement for the purchase of marijuana, and the carrier was ordered to pay the value of the medication that the marijuana was intended to replace (Oxycontin). The carrier appealed the judge’s decision, citing to a provision in California’s medical marijuana statute that provided that the statute does “not require a governmental, private, or any other health insurance provider or heath care service plan to be liable for any claim for reimbursement for the medical use of marijuana.” (See Health and Safety Code Section 11362.785(d)). The Appeals Board remanded the matter back to the lower level for the judge to make a determination as to how that provision applies to the case. Thus far, a decision on this point has not been published.
The AMMA includes a specific provision that is very similar to the California provision cited above. Our statute indicates that it does not require private or public health insurers to reimburse a patient for the costs associated with the use of marijuana. Although our statute does not require the carrier to pay for or reimburse for the cost of marijuana, it does not necessarily preclude an injured worker from seeking reimbursement in a workers’ compensation matter because the use of marijuana could be deemed a medical benefit under our workers’ compensation statute. It is worth noting that federal law (the Controlled Substances Act) does not recognize the medical use of marijuana and it prohibits the cultivation, sale, distribution and possession of marijuana under any circumstance. A pertinent question is whether our Administrative Law Judges interpret the interplay among the Controlled Substances Act, the Arizona Medical Marijuana Act and the Arizona Workers’ Compensation Law to permit our judges to order a carrier to pay for medical marijuana. In the meantime, SCF Arizona has publicly announced its position on this issue and it will not cover the cost or reimburse injured workers for the use of medical marijuana.
The impact of AMMA on our workers’ compensation system is yet to be determined, but with over 35,000 medical marijuana cards issued and a handful of dispensaries open for business, it will serve us all well to be aware of potential complications.
The Arizona Department of Health Services has an excellent website for the Arizona Medical Marijuana Program. You can access it here.
Rachel Brozina is a defense attorney with the Lester & Norton law firm in Phoenix. This column was reprinted with her permission from the Arizona Workers' Compensation Association newsletter.
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