Up in Smoke: Should Medical Marijuana Be Allowed in California’s Workers’ Compensation System?

The use of medically prescribed marijuana has been a controversial issue in California for many years. It is interesting that the issue does not come up more often in the workers’ compensation context. It may not come up more because marijuana is still fundamentally an illegal drug. It is hard to imagine a Workers’ Compensation Administrative Law Judge (WCJ) ordering a defendant to pay a marijuana co-operative or other supplier directly for the provision of marijuana. The defendant would argue that the purchase of marijuana is illegal and that it cannot be compelled to perform an illegal act. But is the issue really that simple? A brief review of the controlling statutes indicates that it may not be.

Health & Safety Code § 11362.5 is referred to the as the Compassionate Use Act of 1996. The stated purpose of this statute is to ensure that seriously ill Californians have the right to obtain and use marijuana for medical purposes where that medical use is deemed appropriate and has been recommended by a physician. The statute identifies various maladies that might be appropriate for the use of medical marijuana and these include cancer, anorexia, AIDS, chronic pain, spasticity, glaucoma, arthritis, migraine, or any other illness for which marijuana provides relief.

Labor Code § 4600(a) provides that medical, surgical, chiropractic, acupuncture, and hospital treatment, including nursing, medicines, medical and surgical supplies, crutches, and apparatuses, including orthotic and prosthetic devices and services, that is reasonably required to cure or relieve the injured worker from the effects of his or her injury shall be provided by the employer. In the case of his or her neglect or refusal reasonably to do so, the employer is liable for the reasonable expense incurred by or on behalf of the employee in providing treatment.

Additionally, Labor Code § 4600(b) states that notwithstanding any other provision of law, medical treatment that is reasonably required to cure or relieve the injured worker from the effects of his or her injury means treatment that is based upon the guidelines adopted by the administrative director pursuant to Labor Code § 5307.27 or, prior to the adoption of those guidelines, the updated American College of Occupational and Environmental Medicine's Occupational Medicine Practice Guidelines (ACOEM guidelines).

Thus, a review of the statutes clearly establishes the Legislature’s intention to make medical marijuana available as a treatment option in those circumstances where it is medically appropriate. Labor Code § 4600 further specifies that numerous treatment options that are reasonably required to cure or relieve the injured worker from the effects of his or her injury shall be provided by the employer. As neither the administrative director nor the ACOEM Guidelines address medical marijuana, the first question becomes whether medical marijuana can be considered medical treatment that is “reasonably required to cure or relieve the injured worker for the effects of his or her injury”. The second question is how can the defendant legally compensate an employee for the costs associated with this treatment if paying the provider directly would violate both State and Federal laws?

Recently, a WCJ and subsequently, a panel of three commissioners with the Workers’ Compensation Appeals Board (WCAB), addressed medical marijuana in the workers’ compensation context. In Cockrell v. Farmers Insurance and Liberty Mutual Insurance Company, 2012 Cal. Wrk. Comp. P.D. LEXIS 456, the injured worker was employed as an attorney when he suffered an industrial injury to his low back, right elbow and heart. The question of the reimbursement for self-procured medically recommended marijuana was submitted for decision. The WCJ awarded reimbursement to the applicant for the cost of the marijuana, as opposed to paying the supplier of the drug, in a sum “not to exceed the lower of the fee schedule for medications being replaced by the medical cannabis or the actual expense of the self-procured item”. The WCJ further noted that “reasonableness and necessity under L.C. Sect. 4600 is supported by the opinion of the Agreed Medical Examiner herein”.

Defendant filed a petition for reconsideration arguing that the WCJ erred in finding that applicant was entitled to reimbursement for his purchases of cannabis.

In its Opinion and Order Granting Reconsideration and Decision after Reconsideration, the panel noted that “it appears that in the proceedings on this issue, neither the parties nor the WCJ considered the application of Health and Safety Code section 11362.785(d)”.

Health and Safety Code § 11362.785(d) provides 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”. Accordingly, the panel granted reconsideration, rescinded the WCJ’s decision, returned the matter back to the trial level for further proceedings to consider the application of Health and Safety Code § 11362.785(d).

It is curious that the panel placed so much emphasis on Health and Safety Code § 11362.785(d). While that section clearly provides that nothing in this article “shall require” a governmental, private or any other health insurance provider to be liable for any claim of reimbursement for the medical use of marijuana, that is not the question. The question is whether medical marijuana, in accord with Labor Code § 4600, can be reasonably required to cure or relieve the injured worker from the effects of his or her injury?

A second and equally interesting question is whether the payment for medical marijuana can be structured in such a way where the defendant is not actually paying a provider for the cannabis? In Cockrell, the WCJ ordered defendant to reimburse the employee for the cost of the cannabis at a rate that was either the lowest fee schedule available for the medication being replaced or the actual cost of the marijuana.

It will be interesting to see how these statutes are reconciled with the fact that marijuana is still an illegal drug. Given its undisputed medicinal benefits, given the stated legislative intent to make its benefits available to the seriously ill, including those seriously injured as a result of an industrial injury, it is likely that this particular issue is re-visited by the WCAB and ultimately the appellate courts in the future.

© Copyright 2012 LexisNexis. All rights reserved. This case summary will appear in a forthcoming issue of the California WCAB Noteworthy Panel Decisions Reporter (LexisNexis).

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