Most of us are probably aware that effective March 18, 2019, Senate Bill 182 went into effect which allows for the possession and use of medical marijuana in the form of smoking for eligible patients. Only a qualified physician can issue a physician certification, which authorizes a patient to receive medical marijuana or delivery devices from a treatment center. In order for a patient to receive a certification under F.S. Section 381.986(4)(a), the qualified physician must: 1) conduct a physical examination while physically present in the same room as the patient and a full assessment of the patient’s medical history, 2) diagnose the patient with at least one qualifying medical condition, 3) determine that the medical use of marijuana would likely outweigh the potential health risks for the patient, 4) determine whether the patient is pregnant and document that in the patient’s medical record, 5) review the patient’s controlled drug prescription history, 6) review the use registry and confirm that the patient doesn’t already have an active certification from another physician, 7) and then register as the one issuing the certification for the patient in the use registry.
There are 33 states that have legalized medical marijuana. However, it seems as though only New Mexico, Maine, and New Jersey have considered whether their medical marijuana legislation is preempted by the Controlled Substance Act of 1970 (CSA) under Federal Law which labels marijuana a schedule I controlled substance. In New Mexico, their appellate court found that the New Mexico medical marijuana act was not preempted by the CSA. See, Lewis v. Am. Gen. Media, 355 P.3d 850, 858 (N.M. Ct. App. 2015). However, in Maine, the Supreme Court determined that the medical marijuana act in Maine was in fact preempted by the Federal Law. See Bourgoin v. Twin Rivers Paper Co., 187 A.3d 10, 12 (Me. 2018). Most recently, in December 2019, the Superior Court of New Jersey decided Vincent Hager v. M&K Construction, Docket No. A-0102-18T3. In Hager, the Court found that since the Employer was not “purchasing or distributing the medical marijuana on behalf of petitioner; it is only reimbursing him for his legal use of the substance,” the Employer cannot be found to have participated in a crime, the Petitioner’s obtainment of the marijuana is the crime and an Employer cannot abet an already completed crime so there was no issue. Thus, the workers’ compensation order awarding the injured worker reimbursement from the carrier for medical marijuana was affirmed. This means the injured worker was able to diminish his use of heavy narcotic pain medication with the use of medical marijuana and at the same time allow the Employer/Carrier to obtain a significant decrease in their overall prescription costs for this individual.
Now the question comes to Florida – can our injured workers obtain medical marijuana through workers’ compensation? Florida has expressed its clear public policy towards the use of medical marijuana. The constitutional amendment and its supporting documents note the medical research demonstrating the beneficial use of marijuana to alleviate the pain and symptoms of certain medical conditions, including severe or chronic pain. The use of medical marijuana can provide beneficial effects to patients including allowing individuals to cease using opioids. That achievement, by itself, in light of the opioid crisis in existence today, should suffice as a rationale for the reimbursement of medical marijuana to injured workers.
However, as part of the constitutional amendment, the legislative branch amended Florida Statute Section 381.986(15) to address the continuation of drug free workplaces and in the same statutory section, at the very end, completely separate from Chapter 440 and the Workers’ Compensation Act, the statute states “marijuana, as defined in this section, is not reimbursable under chapter 440.” Nowhere else in the constitutional amendments nor in section 381 are there references to the workers’ compensation system. Does this quick and hidden quote mean there is a complete bar for Florida injured workers to receive medical marijuana?
At the current time there is very little litigation regarding the topic but with small steps forward this is certainly an issue that should be addressed by our appellate system. Based on other states who have allowed injured workers to receive medical marijuana the path that seems to make the most logical sense is through reimbursement to the injured worker like the New Jersey Court decided. The message that seems to be reiterated by all the appellate courts around the nation that are addressing this topic is one of education, the right for a party to make an educated decision. This right to education applies for the injured worker, to be able to make a health decision with regards to his future care and what is the right form of care for him/her caused by the work-related injuries. There does not appear to be much in the way of disputes regarding the reasonableness of medical marijuana and the medical necessity of the treatment for chronic pain patients. In fact, there is not much of a dispute regarding the significant cost effectiveness of this form of treatment verses opioid analgesics. Thus, the employers and carriers should also be afforded with the right to be educated, to make a determination as to what authorized care they are going to provide and the cost/benefit analysis that exists from a business standpoint and cost savings standpoint for their claims.
An example of medical marijuana’s positive effects on a workers’ compensation case would be an injured worker who suffers from a chronic debilitating pain condition who is receiving compensable authorized pain management through the employer/carrier. Because of the claimant’s compensable accident and compensable injury, he treats on a monthly basis to receive opioids that can cost the carrier in excess of $3,000/month. However, if that same injured worker is found to be a candidate for medical marijuana, the use of the same could allow his monthly palliative care to diminish significantly as the monthly cost for medical marijuana reimbursement from the carrier would be around $300/month. This would result in not only potentially long term health benefits for the injured worker but also over $32,000 worth of annual savings for an employer/carrier. Shouldn’t the employer have the right to this education, the right to make an informed decision to avoid their premiums and/or annual expenditures through workers’ compensation to be significantly inflated because opioids are being prescribed verses the option of the legalized medical marijuana.
On February 11, 2020 at 2:00, the First District Court of Appeal will hear oral arguments regarding Patrick Jones v. Grace Healthcare, Case No: 1D19-1684 (OJCC #03-025539MAM) which involves the injured workers’ request for “an evaluation with a qualified physician to address medical marijuana.” At the lower level, Judge Massey entered a Final Order on April 9, 2019 where he denied the Claimant’s request for an evaluation by essentially holding that the request for the evaluation was the same as a request for the actual medical marijuana. Although the JCC found that medical marijuana was reasonable, medically necessary and causally related to the industrial accident based on essentially uncontroverted evidence, based on the plain language of the statute, the JCC held that the employer or carrier cannot be required to pay for medical marijuana for an injured worker.” The JCC did not address any distinction between the evaluation and the actual receipt of medical marijuana. Accordingly, this case is hopefully one of many that will soon be in the pipeline to address medical marijuana for injured workers. The goal is to overcome and shed light on the current conflict in statutory provisions, Florida Statute Section 440.13 which mandates the Employer/Carriers to authorize all reasonable and medically necessary care and treatment that is causally related to the industrial accident verses Florida Statute Section 381.986(15) which randomly indicates that medical marijuana is not reimbursable under Chapter 440.
Nicolette E. Tsambis, Esq.
Ms. Tsambis is one of five Board Certified Workers’ Compensation attorney’s at Smith, Feddeler & Smith with offices in main offices in Brandon and Lakeland. They are committed to the representation of injured people and their families and handle all aspects of a potential claim including employment disputes and Social Security Disability matters. This commitment has remained the same since the firm was found in 1968 but H. Guy Smith.