Smith Mills & Schrock

Medical Marijuana Treatment in Workers' Compensation

Is Medical Marijuana Considered a Reasonable Treatment Modality in Workers’ Compensation?

By Valerie A. Foote

With medical marijuana being legalized in an increasing number of states, it was only a matter of time before requests for the same began to crop up in workers’ compensation cases. Currently, some form of marijuana is legal for medical purposes in 31 states. In May 2014, medical cannabis became legal in Iowa after a long and controversial political and medical battle. The Medical Cannabidiol Act allows possession of CBD oil and small amounts of THC oil with a doctor’s recommendation, to treat a limited number of medical conditions. In May 2017, the list of qualifying conditions expanded to include chronic pain, among others.

Pain that lasts more than a few months is considered chronic pain. Many injured workers have developed chronic pain syndrome as a sequela of their work injury, and have sought treatment at pain clinics to alleviate their symptoms. Treatment typically includes either injections, opioid medications, or some combination of the two. With the expanded Medical Cannabidiol Act, treatment can now also include medical cannabis, raising a concern for insurance companies as they struggle with the question of whether medical cannabis should be an authorized treatment under workers’ compensation. While medical marijuana may be legal in certain states, many insurance companies operate across state lines, calling into question the legality of authorization of medical cannabis under federal law.

Until this year, there was no recent precedent under Iowa Workers’ Compensation law, in light of the Medical Cannabidiol Act, delineating whether an employer or insurer’s refusal to authorize prescribed medical cannabis would be considered unreasonable under Iowa Code §85.27. An April 2018 Alternate Medical Care decision authored by Deputy Workers’ Compensation Commissioner Stephanie Copley effectively outlines the central conflict of the potential consequences of granting a claimant’s request for authorization of medical cannabis and sets precedent for reasonable denial of the authorization of prescribed medical cannabis under Iowa Workers’ Compensation law.

The threshold issue for alternate medical care disputes under §85.27 is whether the requested care is reasonably suited to treat the injury. It is often inferred that care recommended by an authorized physician is reasonably suited to treat the injury, and therefore if an employer or insurer refuses to provide care recommended by an authorized treating physician, an employee can file a petition for alternate medical care and make a showing as to the necessity of the care through that recommendation, leading to an order for the employer or insurer to provide the recommended treatment. However, when it comes to medical marijuana, the question of legality overshadows the question of necessity.

The April 2018 alternate medical care decision was issued in response to a petition for alternate medical care filed by a claimant who was seeking a referral to a specific physician for the sole purpose of obtaining medical marijuana. See Presson v. Freiburger Concrete & Topsoil, Inc., WCC File No. 5049542 (Alt. Care, April 28, 2018). While the claimant in this case was actually treating in Illinois, the same principles would apply to the same treatment being requested in Iowa. The defendant-employer and insurance company raised concerns that they may be in violation of Iowa or federal law by financing Claimant’s treatment related to the use of marijuana. Specifically, defendants argued that such activities could be considered aiding and abetting, and if defendants financed the claimant’s marijuana and he was later criminally charged for possession of the same, the defendants could also be charged. Id. Similarly, if the physician distributing the marijuana was later charged, defendants could also be charged as being involved in distribution. Id.

In response to these arguments, the claimant contended that the risk of prosecution was minimal. Deputy Copley reasoned that, even assuming that the claimant’s contention was true, it did not change the fact that he was asking the agency to order defendants to engage in an activity that is illegal under federal law. Id. She concluded that, “because defendants risk violating federal law if they pay for claimant’s requested treatment, it is found that the defendants’ refusal to authorize the referral to [the physician] is reasonable.” Id. Additionally, Deputy Copley concluded that the refusal to authorize the care was reasonable because the treatment sought is illegal under federal and Iowa law, and because under both federal and Iowa law, marijuana is classified as a Schedule I drug, which has no accepted medical use. Id. “If Congress and the Iowa legislature have determined that marijuana has no accepted medical use, then it certainly cannot be regarded as reasonable treatment by the agency.” Id.

In 2002, a Deputy Workers’ Compensation Commissioner ordered defendants to pay for prescribed medical marijuana, but that decision departs from this one based upon the surrounding facts. McKinney v. Labor Ready, File No. 5005302 (Alt. Care, November 14, 2002). In that case, the claimant was seeking medical marijuana in the state of Oregon, where marijuana was legal and readily available. In the more recent Presson alternate care matter, however, the deputy reasoned that this case is different because marijuana is not readily available in the state of Iowa, is illegal under Iowa and federal law, and both Iowa and federal law has determined that it has no accepted medical use. Presson at p. 8. Additionally, precedent from the Iowa Supreme Court did not exist at the time of the 2002 decision, and recent precedent illustrates a ‘significant shift in direction from the time McKinney was authored. Id. As such, Deputy Copley found that a departure from the 2002 decision with regard to medical marijuana was warranted.

By way of the April 2018 alternate medical care decision, employers and insurers can defend their denial of authorization of medical cannabis as a treatment modality as reasonable based upon the principles of law therein. Modern trends and shifting political climates will undoubtedly affect the outcome of cases such as these going forward, but in the meantime, employers and insurers have a sound decision to rest their defense upon in the event of a similar set of circumstances cropping up in one of their claims. With the first dispensaries appearing in Iowa in the coming months, we haven’t likely seen the last of disputes over authorization of medical cannabis to treat chronic pain arising from workers’ compensation injuries.

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