Marijuana and Workers’ Comp

There are some who believe medical marijuana and the workplace are a potent mix just waiting to be stirred as increasingly more states approve the herb and its derivatives for medicinal use.

Not only are states approving the use of medical marijuana at an astounding pace, but at least two state supreme courts – in Colorado and in New Mexico – are taking up questions that center on marijuana, the workplace and workers’ compensation.

In Colorado, in Coats v. Dish Network LLC, a man who was injured and using medical marijuana off-duty was fired. A judge upheld the termination as lawful because use of marijuana, while legal for both medicinal and non-medicinal uses in Colorado, violates federal law. The Colorado Court of Appeals affirmed the employer’s right to fire the employee, but the Colorado Supreme Court has granted a review of the case.

In New Mexico, Vialpando v. Ben’s Automotive Services and Redwood Fire & Casualty is believed to be the first case in the nation in which a judge has ordered an insurance carrier to reimburse a workers’ comp claimant for the cost of medical marijuana to treat back pain.

That case is being appealed to the New Mexico Supreme Court.

According to the National Council on Compensation Insurance (NCCI), insurers are starting to receive requests to pay for medical marijuana. However, there are those who believe that at this stage questions arising around workers’ comp are all talk and no action.

“It’s got a lot more hype than what’s happening in the marketplace,” said John Leonard, president and CEO of Maine Employers’ Mutual Insurance Co.

The insurer, headquartered in Portland, Maine, is a big player in the workers’ comp market on the East Coast. While Leonard is watching cases that pertain to medical marijuana and workers’ comp, he’s otherwise unconcerned for now. He said a survey of his claims professionals has so far shown no instances where medical providers have requested marijuana to treat injured workers.

“We have no knowledge of any prescriptions involving the use of medical marijuana,” he said, adding that he’s “perplexed” because that experience is contrary to what he’s so often hearing in the press.

Still, Leonard has pondered a scenario that entails his company being asked to pay for medical marijuana, and Leonard said the company is prepared to abide by prescriptions that are legal in those states.

“If the doctor believes that the use of medical marijuana would be appropriate for a patient and if in fact it was legal in a particular state, we’d go ahead perhaps and authorize that,” he said. “We will do as much due diligence with medical marijuana as we would with any other prescriptions.”