Marijuana and Workers’ Compensation on Industry’s Watch List

Editor’s Note: This is the third in a series of articles on the the marijuana insurance industry. Upcoming stories will include reports on potential changes to federal laws, and regional reports on how medical marijuana is impacting insurance in states across the nation.

There are some who believe medical marijuana and the workplace are a potent mix just waiting to be stirred as 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 also two state supreme courts – in Colorado and in New Mexico – are taking up questions that center on marijuana and the workplace and workers’ compensation.

Such cases are of particular interest to those watching the workers’ comp space, and they have some wondering whether insurers will start being asked to pay for a substance that the federal government considers illegal.

According to the National Council for Compensation Insurance (NCCI), insurers are starting to receive requests to pay for medical marijuana.

However, there are those who believe that at this early stage, marijuana and workers’ compensation as an issue is 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, he’s otherwise unconcerned for now.

Leonard said he has surveyed his claims professionals and he’s so far found 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.”

NCCI has been concerned about the implications and been tracking the issue for quite some time, said Lori Lovgren, a state relations executive for the group.

“We identified it as an emerging issue a couple of years ago,” Lovgren said, adding that medical marijuana has in many states “had a lot of success in the last few years in the legislature.”

Like others in the workers’ comp space, NCCI is particularly interested in cases in Colorado and New Mexico.

Colorado, New Mexico

In Colorado, in Coats v. Dish Network LLC, a man who was injured and using medical marijuana off-duty was terminated. A judge upheld the termination as lawful because use of marijuana, while it was legalized 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 recently granted a review of the case.

“We’re watching that case,” Lovgren said.

Update: Workers Can Be Fired For Off-Duty Marijuana Use, Colorado Court Says

Another case being closely watched is the New Mexico case of Vialpando v. Ben’s Automotive Services and Redwood Fire & Casualty.

The case is believed to be the first 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.

It’s not unreasonable to think that decisions from those high courts could lead the way in other states, said Mark Walls, vice president of communications and strategic analysis for Safety National.

“Other states will look at those cases,” Walls said.

And when it comes to medical marijuana, states have a history of playing follow the leader.

In 1996 California became the first state to legalize medical marijuana. Some 18 years later, it’s currently legal in 23 jurisdictions and the District of Columbia for medicinal use, and it’s legal without a prescription in Washington and Colorado.

“There’s certainly a trend,” said Kambiz Akhavan, president and managing editor of ProCon.org, a nonprofit provider of data on a range of topics that include medical marijuana

According to Akhavan, legalizing medical marijuana is now under consideration on a Florida ballot and in the Ohio and Pennsylvania legislatures.

Also trending upward is the list of illnesses that advocates believe marijuana can treat.

Among those illnesses being tracked by ProCon.org are: appetite stimulation, Alzheimer’s, arthritis, asthma, Crohn’s, GI tract disorders, glaucoma, migraines, nausea from chemotherapy, general pain, and a host of psychological disorders including depression or schizophrenia, bipolar disorder and Tourette syndrome.

“The list is quite long,” Akhavan said.

While marijuana proponents have long argued that the cannabis plant contains ingredients with therapeutic and medicinal potential, others have argued there is no strong evidence it is effective at improving function.

Some are noting that its side effects and behavioral effects make marijuana counterproductive to the treatment of pain for injured workers and that marijuana has the potential to cause or exacerbate problems in daily life, including increased absences, tardiness, accidents, workers compensation claims and job turnover, according to NCCI.

Other insurance challenges NCCI notes are: an absence of National Drug Code, which creates reimbursement issues; liability concerns for employers and insurance companies that pay for medical marijuana if additional injuries are caused by drug intoxication. And, given federal issues, many state courts will be reluctant to approve medical marijuana for the treatment of work-related injuries.

On Schedule

Under the 1970 Controlled Substances Act, marijuana was declared a Schedule I drug. Such drugs are defined as those with no currently accepted medical use and a high potential for abuse.

Some believe that classification could be changed to a Schedule II classification. These drugs are defined as drugs with a high potential for abuse, but they are considered to have less abuse potential than Schedule I drugs, and therefore have been more accepted. A change to Schedule II would make marijuana controlled but not illegal.

“To me that opens the door more for it to be introduced under workers’ comp,” Walls said.

It is Walls opinion that with a schedule change it’s possible for marijuana prescriptions to start supplanting opioid prescriptions.

Whether that’s good or bad is open to debate.

According to a study published in the Journal of the American Medical Association titled “Medical Cannabis Laws and Opioid Analgesic Overdose Mortality in the United States, 1999-2010,” states with legalized medical marijuana had a nearly 25 percent lower annual rate of overdose deaths from opioids, including prescription painkillers such as oxycodone, hydrocodone, and morphine, and street opiates like heroin.

Despite the medical ramifications, Walls believes changing marijuana to a Schedule II drug would make it difficult to enforce workplace rules that prohibit workers from being high.

“I don’t think you can have those zero tolerance policies anymore,” Walls said, adding that with a big election coming up in 2016 a large national push for schedule change is not unlikely. “I won’t be surprised if that happens within the next few years.”

Most of the concerns in the workers’ comp community that Walls is hearing about on the subject are centered on safety, and a “heightened injury risk” due to possible impairment, Walls said.

Hypothetical questions Walls and his peers are now regularly entertaining include: Could injured but still-working employees start coming to work stoned? And if they do, how do you know?

Those are tough questions to answer considering testing for marijuana’s active ingredient, Tetrahydrocannabinol, or THC, and standards for test results are far behind the medical marijuana movement, Walls said.

“The science hasn’t caught up to where we’re at with this,” he said.

Someone, for example, who smoked some pot on Saturday could still test positive for THC at work on Monday, he noted.

“There’s no breathalyzer for marijuana,” Walls added.

Also what has yet to be developed is a standard that determines how “high” is too high.

“What level of THC constitutes impairment?” he stated.

This lack of clear definition creates a big long-term problem for insures faced with denying a workers’ comp injury claim because of a belief that a worker was impaired when the injury occurred.

“To deny workers’ comp because an employee was impaired, insurers have to first demonstrate the employee was impaired and that the impairment caused the injury,” Walls said. “Given the lack of established standards for what constitutes impairment with marijuana, it’s very difficult for an employee to establish that a worker was impaired from marijuana and that was the cause of the accident.”

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