Legal weed creates disconnect, confusion for WC system, experts say
Experts in the legal and pharmacy benefit management realms say practitioners can better protect themselves by ramping up their policies and staying abreast of changing statutes.
"Many of the states that allow medicinal marijuana don't necessarily provide for it yet in their comp statutes," said Albert B. Randall, Esq. of Franklin & Prokopik PC. "As a result, you have a big disconnect in what is permissible under state laws versus the impact of that use of it in a workers' comp case."
Federal law prohibits the use of marijuana. "Many states that allow it still refer to the federal law in workers' comp," Randall explained. "So while it's permissible, it is not under worker's comp and on the job."
Nevertheless, experts are increasingly seeing marijuana recommended by physicians for their patients in states that have legalized its use.
"I think it's going to cause a lot of confusion," said Phil Walls, chief clinical and compliance officer for myMatrixx, a PBM.
Claims, medical issues.
While the majority of states that have legalized marijuana have done so for medical reasons, it is clearly not treated the same as other prescription drugs. For example, pharmacies cannot legally stock or dispense the drug.
"The traditional physician/pharmacy/patient relationships can't exist," Walls said. "The patient goes to a dispensary as opposed to a pharmacy to obtain the product, and traditional medicine is essentially going to be blind to what is being used."
Without the involvement of pharmacies, PBMs cannot take advantage of efforts to prevent abusive practices such as doctor shopping.
Another concern is determining what medical conditions can or should be treated with marijuana. While advocates of medical marijuana have espoused its use for patients with glaucoma, cancer, and other chronic conditions, it is being expanded to other ailments.
"We're seeing a lot more prescribers prescribing it for soft tissue injuries," Randall said. "So states that have allowed medicinal marijuana to be a valid treatment are seeing it expand to injuries that were not necessarily identified in the past."
Legal challenges. There are a variety of legal conflicts that may arise over the use of marijuana, Randall said. Some are fairly clear cut such as those involving the Americans with Disabilities Act. The courts, he says, have been unanimous in saying the use of medical marijuana is not protected under that law.
"What if medicinal marijuana is a cause of a work-related injury? What happens in terms of compensability?" Randall said. "Most states suggest that is where they refer to the federal law and its use as a controlled dangerous substance. If that use of medical marijuana contributes to an injury, you may oftentimes deny a claim based on that."
But a problem may arise in states that will not permit an employer to disallow a workers' comp injury for a claimant who has a legal prescription for medical marijuana. "Where that creates a disconnect with the federal law is [that] you may be obligated in limited instances to pay for a compensable injury even if it is caused by medical marijuana," Randall said.
A particular concern for workers' comp practitioners may develop if marijuana is prescribed to treat a workplace injury. "There are a few states that would permit employers to or require them to allow the use of medical marijuana," Randall said. "But many other states say it is not something that is valid or legal for insurers or employers to provide."
While neither has seen cases where a workers' comp payer has had to fund medical marijuana for an injured worker, both Randall and Walls said they have heard of such cases anecdotally. If such a situation does arise, Randall says employers may be on the hook.
"Most employers I deal with and insurance carriers I would suspect will want to fight it tooth and nail," Randall said. "Many employers would want to contest it even where it is legal and simply have a [state] commission or board or comp agency order it, as opposed to voluntarily paying for it."
Walls is even more adamant. "My recommendation is don't pay for it," he said. "If I had had the opportunity a decade ago to have the same conversations about Actiq I would have advised 'don't pay.' It's not for comp [injuries], only cancer."
Strategies. Employers can protect themselves from legal risks related to the use of marijuana. "I encourage employers to start writing their own policies and procedures before they have a worker taking it legally and wants to report to work," Walls said. "Most employers don't address that; they address illicit drugs, but when marijuana moves from illicit to legal, they should include that."
Another bit of advice is to look more closely at prehiring and post-accident drug tests "to try to weed out the employees before they start and to determine the cause of a work-related accident," Randall said.
Finally, both experts say employers need to be especially concerned about safety issues. "Look very hard and carefully at OSHA," Walls said. "If you are in any type of environment with machinery, driving or anything you should not do while under the influence of alcohol, you should not do with marijuana. The same guidelines should apply."
By Nancy Grover
Read more at the WorkersComp Forum homepage.
September 9, 2013
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