Up in Smoke: How Employers Are Using Disclosures in Medical Marijuana Cards to Defeat Claims for Workers’ Compensation

Up in Smoke: How Employers Are Using Disclosures in Medical Marijuana Cards to Defeat Claims for Workers’ Compensation

Employers are scoring victories by using injured workers’ disclosures in their medical marijuana cards to help defeat claims for workers’ compensation benefits.

Note: Trial level decisions, while not binding authority, often deal with cutting edge issues. As such, they are informative and summarized here for those purposes.

CASE #1: In a recent decision issued by the Colorado Industrial Claim Appeals Office, the Appeals Panel found the claimant failed to carry his burden of proof that his back condition arose out of and in the course of employment. The claimant testified that on November 24, 2009, he was unloading a co-worker’s truck, and while moving a compressor, he injured his back.

The employer obtained written statements from claimant’s co-workers that indicated claimant hurt his back when he coughed. Specifically, the claimant had previously experienced low back pain on August 6, 2009, which had been brought on by a hard cough.

Claimant denied experiencing back pain after August 6, 2009; however, on October 16, 2009, approximately six weeks prior to the alleged November 24, 2009 injury, he applied for a medical marijuana card wherein he stated on his health history questionnaire that he had spasms and chronic pain that began eight years ago for which he last sought treatment in August.

Based on the totality of evidence in the case, including the claimant’s disclosures in his medical marijuana card, the Appeals Panel affirmed the ALJ’s denial of benefits.

Lexis.com subscribers can access the case here: Bullock v. Continental Services, 2011 Colo. Wrk. Comp. LEXIS 22 (Feb. 8, 2011).

CASE #2: In a recent decision by the Montana Workers’ Compensation Court, the Court found that petitioner failed to meet her burden of proof regarding the relationship of her exposure to a small amount of carbon monoxide in the workplace to the symptoms she exhibited.

Petitioner worked at Piggyback Barbeque, LLC from June 2008 until November 2008 as a prep cook among other things. In August 2008 she began to experience migraine headaches. She testified that in September 2008, the pilot light on the water heater went out twice a day and that one morning there was a “wall of toxic fumes”. The next time the pilot light went out, she contacted NorthWestern Energy and asked the operator to explain the side effects of carbon monoxide poisoning, i.e., nausea, headaches, and irritated eyes. Petitioner testified that she had those symptoms and that her headaches subsided after she stopped working at Piggyback Barbeque.

A witness testified that in December 2008, the petitioner had developed some sort of twitch and walked slowly. In the spring of 2009, petitioner exhibited jerking movements, and had a difficult time talking and loss of concentration.

In April 2009, petitioner had an MRI, which was fairly unremarkable and did not show an obvious cause for her symptoms. A CT scan of petitioner’s head was also found to be unremarkable. An EEG was taken in May 2009, but with no evidence of focal, lateralized, or epileptiform activity.

Petitioner underwent a psychiatric evaluation in September 2009 wherein she was assessed as having anxiety and depression. Beginning in September 2009, and through August 2010, she underwent neuropsychological testing with Dr. Singer and Dr. Anderson, both of whom found that her medical decline was essentially consistent with carbon monoxide poisoning.

Dr. Kosnett, a specialist in occupational and environmental medicine and medical toxicology, identified several factors that questioned that validity of the tests performed by Dr. Singer and Dr. Anderson. Specifically, Dr. Kosnett opined that petitioner’s use of lorazepam, baclofen, and medical marijuana clearly reduced the reliability of the neuropsychological testing she underwent to investigate organic brain damage from carbon monoxide exposure.

Dr. Kosnett noted that petitioner had a medical marijuana card and that she used medical marijuana approximately once a week. According to Dr. Kosnett, petitioner’s marijuana use was a “very important” fact to consider because marijuana is known to have detrimental effects on short-term memory and that chronic marijuana use may hasten age-related memory loss.

In the end, the Court found Dr. Kosnet’s opinions persuasive and ruled that petitioner did not suffer a work-related injury or disease.

Lexis.com subscribers can access the case here: Ingle v. Montana State Fund, 2011 MT Wrk. Comp. LEXIS 3 (Feb. 3, 2011).

© Copyright 2011 LexisNexis. All rights reserved.