California Labor Code Section 4600 provides “[m]edical, surgical, chiropractic, acupuncture, and hospital treatment, including…medicines…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.”
Where does marijuana fit in this picture?
(Speaking of marijuana, ever wonder how many nicknames there are for “Magic Smoke?” One 2017 unclassified DEA Report produced by your tax dollars provides such a thorough list that I couldn’t help but provide it to you, dear reader. What’s your favorite term for “Mary Jane”? 1)
BACK TO THE BASICS
For marijuana to even become a possible issue in the workers’ compensation world, a treating physician must deem that it is “reasonably required to cure or relieve.” We’re in California. A visit to any town or city in the state will uncover a physician or two who is more than happy to assist. Presumably (and I hope this is accurate!), the adjuster, recognizing that this is no normal medication, will not immediately stamp “approved” on the RFA.
If a treatment recommendation is not authorized by the adjuster, any request is further subject to Utilization Review (UR) and Independent Medical Review (IMR). Will this process result in the approval of a pot prescription? Happily, this is highly unlikely.
The reviewing doctor must base his or her decision on:
- guidelines adopted by the administrative director under Labor Code Section 5307.2710
- peer-reviewed scientific and medical evidence regarding the effectiveness of the disputed service
- nationally recognized professional standards
- expert opinion
- generally accepted standards of medical practice
- treatments that are likely to provide a benefit to a patient for conditions for which other treatments are not clinically efficacious.
None of these approaches is likely to give marijuana the green light. Nor is a reviewing doctor’s reliance on such highly respected resources as the Medical Treatment Utilization Schedule (MTUS), American College of Occupational (ACOEM), and/or the Official Disability Guidelines (ODG). Given the paucity of evidence regarding the safe, effective use of medical marijuana, the official sources of medical evidence expressly acknowledged by the Californian workers’ compensation system provide little help to an applicant hoping to get you to pay for their stash!
MTUS regulations contain rules to determine what is reasonable and necessary care in the two limited situations that may warrant treatment based on recommendations found outside of the MTUS treatment guidelines. Recommendations in the MTUS guidelines are presumed correct and automatically applied to guide patient care, unless the injured worker’s injury or condition is not addressed by an MTUS medical treatment guideline or if the treating physician disagrees with its recommendations and wishes to rebut the presumption of correctness. As of the date of this article, I am unaware of any successful attempts at rebuttal.
The California MTUS does not recommend medical marijuana, nor do the ACOEM, or the ODG guidelines. Some concerns expressed include contaminants, pulmonary function effects, neurocognitive impairment, immunosuppression, anti-motivational syndrome, schizophrenic and psychotic reactions, gateway drug concerns, toxicity and overdose, cannabis addiction, and withdrawal syndrome.
I think it’s safe to say that until every other mainstream, well-researched and approved treatment modality has failed, a reviewing doctor won’t give a prescription for marijuana any consideration. In short, as of 2021, a prescription from a California workers’ comp treating doctor for medical marijuana would almost certainly be rejected by UR and IMR.
SACRAMENTO OPENS THE FLOODGATES?
If the RFA review process does somehow result in approval, does California law now allow requiring employers to provide medical marijuana in the workers’ compensation arena?
As a California citizen (or someone who has worked with the crazy system we call workers’ compensation), your immediate response may be a hesitant “yes”. After all, you remember all the excitement in 2016 when voters passed “The Control, Regulate and Tax Adult Use of Marijuana Act” (Prop 64), which resulted in the Golden State decriminalizing the personal possession and use of marijuana.
This would seem to cut in favor of employer provided medical marijuana in the workers’ compensation. Uh oh!
There is additional legislation suggesting you must support your local marijuana dispensary on behalf of the injured worker. Those of us in the industry who are more “mature” (read: old!) may also remember the passage of Proposition 215, or the “Compassionate Use Act of 1996” (CMA). This permits usage of medical marijuana despite pot’s lack of the normal Federal and Drug Administration testing for safety and efficacy.
More recently, a law aimed at regulating the medical marijuana industry known as the “California Medical Marijuana Regulation and Safety Act” (MMRSA) went into effect January 1, 2016. It provides strict regulations affecting nearly every part of the industry, including shipping, cultivation, quality control, licensing and taxation (the tax man never misses an opportunity!). MMRSA has something for everyone and doctors were included: it provides, inter alia, that physicians may not make medical recommendations to patients if the physician or a family member has financial interest in a licensed facility.
Read conversely, “Got no ‘financial interest’, doctor? Prescribe away to your heart’s content!”
So are California adjusters now marijuana pushers if they elect to approve a Request for Authorization, miss a deadline, UR/IMR goes sideways, or an AME causes trouble (more about that later)?
Let’s reframe our question: does this combination of Proposition 64, Proposition 215 and MMRSA equate to allowing you to become an applicant’s drug dealer? Not so fast.
UNCLE SAM HAS AN OPINION
All of the California legislative changes thus far discussed create a conflict between states’ rights advocates and federal law. Does Uncle Sam win this battle? An authority as significant as the U.S. Constitution provides insight: Article VI, Paragraph 2 (Supremacy Clause) dictates that the federal constitution, and federal law generally, prevail over and defeat conflicting state laws and constitutions.
Do we have a conflict? Even Sacramento seems to think Washington, D.C. can’t be wholly ignored. A reading of MMRSA, for example, reveals that doctors must include a warning notice that medicinal marijuana is still a Schedule I substance under federal law and as such is not an approved medication in the U.S. Schedule I substances are drugs with no currently accepted medical use and a high potential for abuse. Some examples include heroin, LSD, ecstasy, methaqualone, peyote, and marijuana. (Yep! All the “fun” ones!) 2.
Is there another way for the marijuana to get to the injured worker without violating any law? That doesn’t appear to be the case. The federal government defines a controlled substance as any of the substances listed in the schedules of the Controlled Substances Act of 1970 (CSA). This expressly includes marijuana. On its face, it appears that the CSA trumps all state laws under the Supremacy Clause, thus making marijuana possession illegal in all fifty states. In response, venues like California wishing to allow for more leniency in marijuana use simply do not criminalize possession and use of small amounts. Alternatively, they pass “medical marijuana” regulations to allow possession and use for limited medical purposes. However, this doesn’t do the trick: federal law prohibits prescriptions being written for Schedule I substances. (Sorry doctor!).
There doesn’t seem to be an “informal” way to sidestep the California vs Washington, D.C. conundrum. Ever since California adopted Proposition 215, federal officials have used many tactics to enforce federal prohibitions, including:
- raids
- criminal prosecutions
- civil injunctions seizing property leased for medical marijuana uses
POLITICAL TEA READING
So will the use of medical marijuana continue to raise federal legal problems or can cannabis supporters look forward to helpful legislation?
Though not normally a betting man, I’d put up a large wager that there is no positive legislative future for marijuana proponents in the short term. Coming to that conclusion requires review of a complicated history. Analysis of relevant federal positioning over the past decade strongly suggests that relying on Uncle Sam to change his tune on these issues is ill advised.
Consider a date all marijuana activists remember fondly: March 18, 2009. The Obama administration announced that federal officials would no longer try to thwart medical marijuana distribution and use in California.
Later that year, Obama’s Deputy Attorney General released a memo instructing federal law enforcement officials that the “rational use of its limited investigative and prosecutorial resources” meant that medical-marijuana patients and their “caregivers” who operate in “clear and unambiguous compliance with existing state law” should be left alone. Relying on this promise, the California marijuana industry grew into a $1.3 billion business.
But what Uncle Sam giveth Uncle Sam can taketh away. A subsequent DEA head, Michele Leonhart, issued position papers such as “THE FALLACY OF MARIJUANA FOR MEDICINAL USE” and “SMOKED MARIJUANA IS NOT MEDICINE.”
U.S. Attorney Melinda Haag threatened cities that federal “criminal prosecution” against the proposed pot operations was on the table. Reneging on the earlier memo proposing protection of state-sanctioned “caregivers,” Haag announced the agency would “enforce the Controlled Substances Act vigorously against individuals and organizations that participate in unlawful manufacturing and distribution activity involving marijuana, even if such activities are permitted under state law.”
The Obama administration presided over nearly two million arrests for nonviolent drug offenses, over half being marijuana arrests. It also oversaw a nationwide campaign of raiding medical marijuana dispensaries. Dozens of dispensaries were closed. Owners and workers faced prison time.
There is a possible change afoot that we must closely monitor: the Clarifying Law Around Insurance of Marijuana Act of 2021. Introduced in March, it would permit carriers and insurers to insure marijuana businesses and eliminate the threat of federal penalties. A spokesman for one of the bill’s sponsors, Senator Menendez, (D-NJ), stated that it is “common-sense legislation” aimed at providing “basic tools” for business including insurance. It also “recognizes states’ rights.”
The foregoing notwithstanding, at this point federal law does not protect the medical marijuana industry. Although Senate Majority Leader Chuck Schumer (D-NY) stated this year that a bill to end federal marijuana prohibition will be released “shortly” and House Speaker Nancy Pelosi recently insisted that pot “is a therapy that has proven successful”, the White House doesn’t currently seem to be interested in smoking from that particular pipe. In a San Francisco Chronicle interview this year, Vice President Harris was asked about cannabis policy. She answered “we haven’t yet taken that on.”
Another bad political omen for medical marijuana proponents: multiple Biden White House staffers were recently terminated or otherwise punished when their background checks revealed prior marijuana use.
DANGER: DON’T APPROVE OR PAY FOR THAT POT
Anyone who expects the federal government to steer clear of medical marijuana transactions approved by California is dabbling in danger.
Thus, while some treating physicians may fearlessly buck federal law, we can — hopefully — expect UR/IMR to back-up defendants’ refusal to authorize medical marijuana. Facing an AME or UR/IMR reviews that have gone sideways? 3 This does not necessarily mean you must—or should—authorize and pay for that pot. This is literally the time to make a “federal case” out of the issue. Regardless of your personal position on marijuana use, the only safe course is for employers, carriers and TPAs is to heed the memorable (though not particularly effective) words of Nancy Reagan: “Just Say ‘No'”!
Good luck! And in the meantime, be careful about passing that pipe around!
Don R. Barthel is a founding partner at the Law Offices of Bradford & Barthel LLP. If you have questions about high exposure workers’ compensation claims, or any other workers’ compensation defense issues, please feel free to contact him at dbarthel@bradfordbarthel.com.
1 DEA-HOU-DIR-020-17
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2 Ever wonder what the difference between a Schedule 1 and 2 drug is? Both officially have a “high abuse risk”, but Schedule 1 —per the feds — have NO safe medical use. By contrast, Schedule 2 drugs have safe and very limited accepted medical uses
3 A 2015 panel decision, Cockrell V. Farmers, included a fact pattern wherein an AME –not UR or IMR– recommended medical marijuana. Defendant objected on non-medical grounds. Therefore, the marijuana denial was not based on a UR or IMR determination. AMEs can and often do unnecessarily put defendants behind the proverbial eight ball. I recommend against employing an AME whenever possible. See “The AME Trap (aka Why Agreed Medical Examiners Make Me Disagreeable)” at https://bradfordbarthel.blogspot.com/2010/04/ame-trap-aka-why-agreed-medical.html
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