With the legalization in some states of marijuana, particularly for medicinal purposes, this is opening the door for at least some forward-thinking doctors and employers to consider if there are any benefits to be derived in workers compensation, either to the employee or the bottom line, or both.
How the use of legal marijuana is affecting the workplace was one of the topics addressed at the 2019 CLM Workers Compensation Conference this week, and panelists shared their varying perspectives on its use from the perspective of workers compensation.
It may be surprising to some that in certain jurisdictions carriers have been mandated to reimburse claimants, and that some carriers and third-party administrators who provide reimbursement for medical marijuana will reimburse directly to the claimant. This is likely because marijuana is still a Schedule 1 drug subject to federal law, and the carrier does not want to cover the drug or directly pay for it as part of their workers' compensation program.
To address the issue from a worker's perspective, Dr. Carlos Giron, CEO physician of the Pain Institute, Macon, Georgia, revealed his findings that where patients were obtaining their own CBD products from friends and family in legalized states the results were nothing short of remarkable. Approximately 90% of Dr. Giron's patients are workers compensation claimants. Previously a skeptic, he now sees use of medical marijuana as an opportunity to both improve patient safety and provide clinical improvement. From Dr. Giron's perspective, the key to such results is to know what the patient is receiving, their dose regimen, and schedule. Therefore, he doesn't advocate allowing workers compensation patients to go directly to the vape shop and submit the expense to the insurer, but rather to administer the medical marijuana through the workers compensation system. At issue however, is how to know the correct dosage for each patient, since no clinical or federal guidelines exist. Dr. Giron has been using a clinical approach to prescribing a CBD dosage and claims to have seen greater than 90% improvement in his patients, with reduced use of opioids by up to 65%.
From the insurer perspective, Jeremy Buchalski, associate of Wilson Esler Moskowitz Edelman & Dicker LLP, advised that in those states where reimbursement has been provided for legal marijuana in workers compensation cases there have been varying provisional requirements. For example, New York and New Jersey courts have held that reimbursement be provided only if medical marijuana is used to treat a compensable condition. Whereas in New Mexico, insurers simply reimburse medical marijuana based on a fee schedule. In Illinois, the state's opioid alternative pilot program allows those individuals who would have been prescribed opioids to opt for a prescription for marijuana to be filled at a dispensary. The pilot program has a marijuana tracking system to collect data on the risks and benefits to allow for informed public policy decisions for the future. Additional states with pending legislation for workers compensation reimbursement for medical marijuana are Maine, Maryland, Vermont, New Jersey, New York and Hawaii.
If medical marijuana can reduce each patient's dependence on more traditional medications, such as opioids, muscle relaxers, anti-inflammatories benzodiazepines, and sleep medications, this should logically reduce claims cost and benefit the worker through improved body function. Such is what Dr. Giron claims has been the experience of his patients.
Other viewpoints however are less than supportive. More than one proponent questions the benefit to the injured worker, as in essence the alternative treatment would put them in the position of being a 'guinea pig'. These proponents argue that since medical marijuana does not cure them, return them to work faster, or help them become a productive member of society, it may be of no real benefit to the worker. With its current status as a Schedule 1 drug under federal law, this means that marijuana has no accepted medical use, has a lack of accepted safety for use under medical supervision, and has a high potential for abuse. Conversely, all of the Schedule 2 drugs that have a high potential for abuse are allowed under federal law, drugs such as Adderall, hydrocodone, morphine and OxyContin. Because they have been able to be legally administered the Schedule 2 drugs have been studied and tested, whereas the Schedule 1 drug marijuana has not been studied nor tested. Some studies conducted show that THC can create psychosis in individuals prone to anxiety, which could exacerbate the injured worker's condition.
There remain many questions to be answered with respect to the individual reaction and benefit to the drug, the proper dosage, its long term effects, and of course the cost. There is no unit price of the drug or standardized unit of dosage, so insurers have no basis on which to base current or future costs, and no way to predict if or when injured workers could be considered able to return to work, with or without the drug. Further, many employers operate a drug free workplace, so if injured workers were permitted to return to work with the drug, it raises issues about whether medical marijuana would violate the drug free workplace rules.
Despite the many unknowns and unanswered questions, there is no doubt that with pending legislation to expand marijuana in 20 states and 10 states considering recreational marijuana, the future for workers compensation will be trending toward inclusion of medical marijuana for those injured employees. Hopefully, the federal government will reclassify the drug so that it can be studied and tested and insurers will have more information on which to base their actuarial predictions.