California: Self-Procured Medical Marijuana

Are applicants entitled to reimbursement for self-procured medical marijuana both pre- and post-SB 863?

In Cockrell v. Farmers Insurance, 2015 Cal. Wrk. Comp. P.D. LEXIS --, a WCAB panel has once again rescinded the WCJ’s finding that the applicant was entitled to reimbursement (as opposed to providing or paying the supplier) for self-procured medically recommended marijuana in an amount reflected in the fee schedule for medications being replaced by medical cannabis or for the actual expense of marijuana, and returned the matter to the WCJ for further proceedings.

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The WCAB found that neither parties nor the WCJ considered whether a workers’ compensation insurer constitutes a “health insurance provider” for purposes of Health & Safety Code § 11362.785(d) [H&S 11362.785] (stating that nothing in Medical Marijuana Program will require health insurance provider or health care service plan to be liable for reimbursement for medical use of marijuana). In considering whether the Legislature sought to include workers’ compensation insurance policies in the definition of “health insurance provider,” the WCAB directed the parties and the WCJ to analyze whether there is any rational basis for treating occupational and non-occupational insurers differently with regard to reimbursement for medical marijuana.

Without deciding the issue or taking any particular position, the WCAB noted that the Medical Marijuana Program does not specifically define the term “health insurance provider,” but the language in the Insurance Code indicating that “health insurance” does not include “insurance arising out of a workers’ compensation or similar law” and the language in the Labor Code referring to “health care coverage for nonoccupational injuries or illnesses” may indicate that health insurance was intended to include workers’ compensation insurance when there is no express statutory exclusion.

COMMENTARY:

Ever since the “Medical Marijuana Program” (Health & Safety Code Section 11362.7 et seq. [H&S 11362.7]) was enacted in 2003, marijuana for medicinal purposes has been a hot button issue for both judges and physicians. This California program allows patients, under specified circumstances, to legally possess medicinal marijuana upon the written or oral recommendation of their physician. Problem is, marijuana is still prohibited by federal law. Therefore, authorization of this substance is problematic on many levels.

The issue in this case was first brought to the WCAB on Reconsideration back in 2012. The WCAB returned it to the WCJ to consider whether Health & Safety Code § 11362.785(d) impacts a decision to authorize medicinal marijuana. Now, two years later, the WCAB has once again returned the same case and the same issue to the trial level. This time the WCJ is directed to determine whether the “workers’ compensation insurer” in this case, is a “health insurance provider,” pursuant to Health & Safety Code § 11362.785(d). If the “workers’ compensation insurer” is determined not to fall within this category, and the WCJ reinstates his decision to authorize medicinal marijuana, then he should provide the legal justification for treating non-industrial injuries differently from industrial injuries.

When the WCAB first reviewed this case in 2012 (see 2012 Cal. Wrk. Comp. P.D. LEXIS 456 [2012 Cal. Wrk. Comp. P.D. LEXIS 456]), Agreed Medical Evaluators and Panel Qualified Medical Evaluators were calling the shots on whether requested medical treatment was reasonable and necessary. Since then, the paradigm for resolving medical treatment disputes has radically shifted in California. Utilization Review and Independent Medical Review physicians are now charged with resolving medical treatment disputes, primarily in accordance with the standardized Medical Treatment Utilization Schedule (Lab. Code § 5307.27 [LC 5307.27]), which lacks provision for medicinal marijuana. It is therefore unlikely that the WCAB will have to grapple with these types of issues in the future.

Read the Cockrell noteworthy panel decision.*

* CAUTION: This decision has not been designated a “significant panel decision” by the Workers’ Compensation Appeals Board. Practitioners should proceed with caution when citing to this panel decision and should also verify the subsequent history of the decision. WCAB panel decisions are citeable authority, particularly on issues of contemporaneous administrative construction of statutory language [see Griffith v. WCAB (1989) 209 Cal. App. 3d 1260, 1264, fn. 2, 54 Cal. Comp. Cases 145]. However, WCAB panel decisions are not binding precedent, as are en banc decisions, on all other Appeals Board panels and workers’ compensation judges [see Gee v. Workers’ Comp. Appeals Bd. (2002) 96 Cal. App. 4th 1418, 1425 fn. 6, 67 Cal. Comp. Cases 236]. While WCAB panel decisions are not binding, the WCAB will consider these decisions to the extent that it finds their reasoning persuasive [see Guitron v. Santa Fe Extruders (2011) 76 Cal. Comp. Cases 228, fn. 7 (Appeals Board En Banc Opinion)]. LexisNexis editorial consultants have deemed this panel decision noteworthy (a “noteworthy panel decision”) because it does one or more of the following: (1) Establishes a new rule of law, applies an existing rule to a set of facts significantly different from those stated in other decisions, or modifies, or criticizes with reasons given, an existing rule; (2) Resolves or creates an apparent conflict in the law; (3) Involves a legal issue of continuing public interest; (4) Makes a significant contribution to legal literature by reviewing either the development of workers’ compensation law or the legislative, regulatory, or judicial history of a constitution, statute, regulation, or other written law; and/or (5) Makes a contribution to the body of law available to attorneys, claims personnel, judges, the Board, and others seeking to understand the workers’ compensation law of California.

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