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Employers May Be Up In Smoke With Medical Marijuana In Workers’ Compensation Cases
By Maureen Kohl Bennington, M.S., CCM, CDMS, CPUR, CRC - February 3, 2011

Medical Marijuana has been in the forefront of California news since 1996 when California became the first state to legalize marijuana for medicinal purposes.  The intent of the law is to give “seriously ill” Californians the right to obtain and use marijuana for the treatment of cancer, anorexia, AIDS, chronic pain, spasticity, glaucoma, arthritis, migraines or any other illness for which marijuana provides relief.    Patients are not subject to criminal prosecution or sanction for the possession or use of marijuana as long as they can prove it has been deemed medically necessary by their personal physician. 

Of course, we all know Californians have received prescriptions from physicians for a wide variety of purported conditions that don’t always seem to justify they are “seriously ill”.  We know that dispensaries offer assistance in obtaining an evaluation for medical marijuana and insure you are seen by a reputable physician for a low cost evaluation.  You can be seen the same day and you are assured it is 100% legal. 

In an effort to protect physicians, the Medical Board of California created a position statement in 2004.  The statement provides guidance and protection to physicians who choose to prescribe medical marijuana for their patients.  Meanwhile, cities and counties struggle to address the issues related to the multitude of store front operations that are multiplying exponentially in their communities.  It is clear not all individuals who are provided prescriptions for medical marijuana fit the criteria of “seriously ill”.  This is problematic and concerning to the cities and counties who must adhere to state law and allow this activity.  It is saying something when medical marijuana clinics are more prevalent in Los Angeles than Starbucks coffee stores…..

Consistently proponents of legalization of marijuana are bringing measures to the ballot.  Most recently in June 2010, changes in the California law occurred expanding the rights of individuals to possess marijuana.  Possessing less than one ounce of marijuana is considered a civil infraction.  It is no longer a misdemeanor.  Currently, SB129 has been proposed by Senator Mark Leno of San Francisco.  The law he has introduced bars employers from using a positive drug test for hiring and firing decisions for individuals who are legally prescribed medical marijuana.  Of course the law exempts certain types of employment such as health care workers, school bus drivers and operators of heavy equipment or any job considered sensitive.   Senator Leno is “optimistic” Governor Brown will sign the bill.   A version of this law was proposed in 2007 and was opposed by the California Chamber of Commerce “mostly on liability issues”.  Senator Leno believes that at this time of high unemployment we cannot risk the unemployment of any of our citizens. 

California is not the only state with medical marijuana laws on the books.  Alaska, Arizona, Colorado, Washington DC, Hawaii, Maine, Michigan, Montana, Nevada, New Jersey, New Mexico, Oregon, Rhode Island, Vermont and Washington have laws on the books or in process.  Seven additional states as of January 31, 2011 have House Bills being considered.  Those states are Connecticut, Idaho, Illinois, Mississippi, New Hampshire, Oklahoma and Delaware.  There is something in the news every day about the use of medical marijuana and the expansion of rights related to possession, sales and cultivation.  Oddly enough, as states are expanding the right to use marijuana, the federal government continues to wage war on marijuana.  The federal government prohibits marijuana possession, sale or cultivation.  The federal law has strict penalties and can involve decades of jail time.  The federal government does not recognize the state laws and is continuously attempting to bring action against the state and individuals for carrying an illegal substance.  But that is not stopping the movement to legalize medicinal marijuana. 

This got me thinking… do these laws affect how we manage workers’ compensation cases?  Then it happened…..While attending a physician visit with a patient, the question came up.  My client has significant pain from a back injury.  This individual is now scheduled for surgery but has suffered for months with high levels of pain.  While visiting the pain management physician the client asked about a prescription for medical marijuana.  It seemed as if the physician and I were shot with a stun gun and everything was suddenly in slow motion.  We looked at each other speechless for a few moments.  I spoke first… very carefully choosing my words.  I informed the client that it did not seem to be a good idea for an employee who is a truck driver to use medical marijuana.  The client is technically still on payroll and could be subject to drug testing.  The client accepted this explanation and did not push the issue further.  We then discussed the probable denial from utilization review.  The physician concurred and provided the client prescriptions for her back pain.  

After this appointment, I thought about all the states that have laws on the books for the use of medicinal marijuana.  How are these laws affecting the administration of workers’ compensation claims?   

This particular pain management physician would not consider providing a prescription.  But, what if a physician did make this recommendation?  In actuality, utilization review would deny the request.  But, using what guidelines?  If we go outside of the guidelines, there is literature to support the use of marijuana.  Our own US Surgeon General, Joycelyn Elders, indicated “the evidence is overwhelming that marijuana can relieve certain types of pain.  And, it can do so with remarkable safety.  Indeed, marijuana is less toxic than many of the drugs that physicians prescribe every day” (Providence Journal, 2004).  The American College of Physicians, Drug Enforcement Agents, Judges, Professors and a multitude of reputable individuals have supported the use of medical marijuana.  How will utilization review address this issue?  We have enough issues with overuse of narcotics.  There is no way you can possibly begin to control the use of medical marijuana.  And, what about the argument that “marijuana is less toxic than many of the drugs physicians prescribe every day”?  We know there is a huge issue with overuse of prescription narcotics and medications.  Are these really so different than marijuana?

Then there is the issue of secondary conditions caused by smoking.  We are trying to curtail tobacco smoking while encouraging marijuana smoking?  Yes, smoking tobacco is an individual’s personal choice and marijuana is “medicinal”.  But, both carry the same health risks.   Studies show that marijuana has cancer causing compounds, and damage the brain, heart, lungs and immune system.  It also impairs learning and interferes with memory, perception and judgment.  Marijuana is already implicated in a high percentage of auto and workplace accidents.  But, if marijuana is considered medicinal then does   responsibility fall on the shoulders of the workers’ compensation carrier for the patient who is diagnosed with lung cancer secondary to marijuana smoking?   

Employers are going to be even more challenged.  Random drug testing has helped keep the workplace safer.  But, if laws are placed on the books prohibiting drug testing of individuals using medicinal marijuana then this brings new challenges.  What if your employee needs to smoke on breaks to maintain pain control?  You have no recourse yet you are liable for their injury and injury to others while this employee is “legally” under the influence.  And, how do you determine which positions are exempt from the law without putting yourself in the position of being sued for wrongful termination? 

Although I am fully supportive of an individual’s rights, I believe we are opening Pandora’s Box with current marijuana laws.  There has not been enough thought put into the potential ramifications to employers and insurers when these laws are passed.  It seems we always have to learn the hard way even when the potential pitfalls are staring us in the face.  

Submitted By:

Maureen Kohl Bennington, M.S., CCM, CDMS, CPUR, CRC
Workers’ Compensation and Disability Management Consultant


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