Medical Marijuana and LC 4600As we all know, in 1996 California’s Proposition 215 was the first statewide medical marijuana initiative to pass, also known as the Compassionate Use Act of 1996. Added to the Health and Safety Code, this law permits patients with a valid doctor’s recommendation to possess and cultivate marijuana for personal medical use.
How does this legalization of the possession/cultivation of medical reefer impact your duty under Labor Code §4600(a) to provide all treatment that is “reasonably required to cure or relieve the injured worker from the effects of his or her injury…”?
Put more succinctly, if the PTP writes a prescription for pot, are you obligated to help the applicant get high?
Heck no!
Pretty emphatic answer, huh? B&B’s position is based on (a) case law, (b) California statute, and (c) federal law…so, yes, we’re emphatic!
The research leading to this article was inspired by an email from a client who wrote:
“I heard about a case where a workers’ compensation judge punted the decision of whether medical marijuana was needed per 4660 to a QME.”
My response? I hope and pray this is another “urban legend”, but I have my doubts! 1
Why You Ain’t Paying To Get High: Reason 1
Submitting to a doctor (QME or otherwise) as to whether Panama Red is “reasonable and necessary” per Labor Code §4600 COMPLETELY misses the point! While California may think it’s fine for folks to have pot to help what ills them, Uncle Sam has not signed onto this deal. While California might not come after you for buying ganja for injured workers, the federal government has made no such promises!
The California Supreme Court, in Ross v. RagingWire Telecommunications, Inc, (2008) 42 Cal. 4th 920 recently discussed medicinal marijuana in a Fair Employment & Housing (FEHA) case that, while not directly on point, is the best and most authoritative position we have on this issue.
The “high” court (pun intended), noted that the Compassionate Use Act was to keep medicinal pot users out of jail for state law violations. It did not (and could not) impact federal law. It did not impact—expressly or implicitly—employment law. Thus, employers need not accommodate medicinal pot use—even if it is “legal” under state law. Thus employers CAN—without violating FEHA and/or the Compassionate Use Act, fire employees who test positive for pot.
All this appears to be directly applicable to workers’ compensation law. The Compassionate Use Act doesn’t make it legal—under federal law—for employers to provide pot to workers’ compensation applicants who want it, even if they do have a prescription, AND, perhaps more importantly, even if a doctor and/or WJC says it is “reasonable” and/or “necessary” per Labor Code §4600.
The Supreme Court noted:
The Compassionate Use Act of 1996…gives a person who uses marijuana for medical purposes on a physician’s recommendation a defense to certain state criminal charges involving the drug, including possession… Federal law, however, continues to prohibit the drug’s possession, even by medical users….
…Plaintiff’s position might have merit if the Compassionate Use Act gave marijuana the same status as any legal prescription drug. But the act’s effect is not so broad. No state law could completely legalize marijuana for medical purposes because the drug remains illegal under federal law…Nothing in the text or history of the Compassionate Use Act suggests the voters intended the measure to address the respective rights and obligations of employers and employees…
Marijuana…remains illegal under federal law because of its “high potential for abuse,” its lack of any “currently accepted medical use in treatment in the United States,” and its “lack of accepted safety for use…under medical supervision.”
…California’s voters had no power to change federal law…
Why You Ain’t Paying To Get High: Reason 2
Reason #2 really is the simplest and most direct answer: California law says you don’t have to pay!
Health & Safety Code 11362.785(d) provides:
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.
Nancy Reagan was right!
Nancy Reagan told a young school girl to “Just Say No” to drugs.2 Turns out Nancy was right! Next time some workers’ compensation doctor writes script for Maui Wowi, JUST SAY NO!
Donald R. Barthel is a Founding Partner of Bradford & Barthel, LLP, as well as B&B’s Rating & File Consultation Services. Mr. Barthel is an acknowledged expert regarding the AMA Guides (5th) and the 2005 PDRS. Much of his time is dedicated to teaching these topics to adjusters, human resource directors, employer representatives, attorneys, and physicians throughout California and the United States. Have a PDRS or AMA Guides question? Call Don Barthel at (916) 996-1263 or email him at dbarthel@bradfordbarthel.com.
1 Anyone personally familiar with such a case? Please forward any WCAB Orders to my attention at dbarthel@bradfordbarthel.com.
2 Ronald Reagan’s “Remarks at the Nancy Reagan Drug Abuse Center Benefit Dinner” in Los Angeles, California, January 4, 1989, memorialized the following: “It wasn’t too far from here—well, in Oakland—where a schoolchild in an audience Nancy was addressing stood up and asked what she and her friends should say when someone offered them drugs. And Nancy said, `Just say no.’ And within a few months thousands of Just Say No clubs had sprung up in schools around the country. At last count there are 12,000 of them in our schools.”
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