Can An Employer Face Liability For Providing And Paying For Cannibas Products To “Cure Or Relieve” From The Effects Of An Industrial Injury?

Provided by William Davis, Esq., Hanna Brophy Santa Rosa

An employer is required to provide medical treatment “that is reasonably required to cure or relieve the injured worker from the effects of the worker’s injury”.  (CA Labor Code sec. 4600) But, does this requirement include providing cannibals products, when doing so would require violating federal law? 

In California, treatment requests are evaluated for approval using the “evidence-based” medical (EBM) approach in Labor Code section 5307.27(a).  With this EBM approach in mind, is a request for cannabis reasonably required to cure or relieve an injured worker’s injury under LC 4600?  For now, there is no easy answer to that question for California employers.  However, that does not mean that no one has attempted this.

In California, a medical provider requests treatment modalities by using a Request for Authorization (RFA).  The employer can either approve the requested treatment or have it placed thru Utilization Review (UR).  IF UR non-certifies the RFA, the injured worker can appeal thru Independent Medical Review (IMR).  The IMR stage is where we pick up the issue of employer liability for cannabis.  It appears that, so far, there is just a single IMR decision on employer liability for cannabis to “cure or relieve”, Cm19-0016741, 84 Cal. Comp. Cases 465, 2019 Cal. Wrk. Comp. LEXIS 23.  For those without Lexi access (and really, who would that be), California IMR decisions can be found at https://www.dir.ca.gov/dwc/IMR/IMR-Decisions/IMR_Decisions.asp

The Cm19-0016741 case dealt with a RFA for a referral to a pain physician who specializes in prescribing cannabis for pain control. UR non-certified the request and the injured worker filed for IMR.

The reviewer in this case noted the difficulties in determining whether cannaboids fit within EBM.  It was noted that the Medical Treatment Utilization Schedule (MTUS) 2017 is silent in regards to cannaboids and the Official Disability Guidelines note “Not recommended for pain”.  The reviewer cited a study that noted “there are no quality studies supporting cannabinoid use, and there are serious risks. Restricted legal access to Schedule I drugs, such as marijuana, tends to hamper research in this area. It is also very hard to do controlled studies with a drug that is psychoactive because it is hard to blind these effects. At this time, it is difficult to justify advising patients to smoke street-grade marijuana, presuming that they will experience benefit, when they may also be harmed”.

Request for cannabis denied this time.

Apart from the question of an employer providing cannabis to an injured worker is the question about whether the employer can be made to pay for it.  Why would this be an issue?  Paying for cannabis could violate Federal law.  After all, as the IMR reviewer noted, marijuana is a federal schedule I narcotic.  The employer argument is that it is a violation of the Controlled Substances Act to reimburse or pay for cannabis for the treatment of an injured worker and that state laws to the contrary are preempted by this Act.

A case in Minnesota dealt with this very issue.  In Musta v. Mendota Heights Dental Ctr., 2022 U.S. LEXIS 1036, the Minnesota Supreme Court ruled that the Controlled Substances Act preempted a state order requiring reimbursement for medical cannabis.  The U.S. Supreme Court declined to review.  Other states may have reached contrary positions and it would appear that a federal case will be necessary to resolve this federal question.

A nine year old case in California dealt with the issue of a health insurance provider could be held liable for reimbursement for a claim of medicinal use of marijuana.  That case dealt with the Health and Safety Code sec. 11362.785(d), which notes “This section does not require a governmental, private, or any other health insurance provider or health care service plan to be liable for a claim for reimbursement for the medicinal use of cannabis”.  Cockrell v. Farmers Insurance, 2015 Cal.Wrk.Comp. P.D. LEXIS 95 was a WCAB panel decision that partially addressed this issue and the argument, by a defendant, of no liability. The defendant argued an Award finding liability for reimbursement was in error because of California Health and Safety Code sec. 11362.785(d).  On appeal, the Board sidestepped the issue of reimbursement by holding “[P]arties and the WCJ did not analyze the issue of whether a workers’ compensation insurer constitutes a “health insurance provider” for the purposes of Health and Safety Code section 11362.785(d)”.

So, is an employer required to provide and pay for cannabis products to “cure or relieve” from the effects of an industrial injury?  It appears that the answer is no.  But that no, must be qualified with a “not for now”.  This issue is certainly on the horizon. 

The Supreme Court has issued their opinion Kuciemba v. Victory Woodworks, Inc.  The 53 page opinion can be downloaded at https://www.courts.ca.gov/opinions/documents/S274191.PDF  This is the take home COVID case that has had so many of us on the edge of our seats, workers’ compensation and civil practitioners alike. 

In an opinion released July 6, 2023, the California Supreme Court ruled that:

1.)  If an employee contracts COVID-19 at the workplace and brings the virus home to a spouse, the derivative injury rule of California’s workers’ compensation law does not bar a spouse’s negligence claim against the employer; and

2.)  An employer does not owe a duty of care under California law to prevent the spread of COVID-19 to employees’ household members.

The Supreme Court opinion was in response to questions addressed to it by US Court of Appeals for the Ninth Circuit.  The Ninth Circuit asked that the Supreme Court address two questions concerning an employer’s liability when an employee’s spouse is injured by transmission of the virus that causes COVID-19.  This became known in legal circles as “take home COVID” liability.  These two questions were:

(1) If an employee contracts COVID-19 at the workplace and brings the virus home to a spouse, does the California Workers’ Compensation Act (WCA; Lab. Code, § 3200 et seq.) bar the spouse’s negligence claim against the employer?

(2) Does an employer owe a duty of care under California law to prevent the spread of COVID-19 to employees’ household members?

The Supreme Court found that the answer to both questions was no.  As to the first question, the court found that workers' compensation exclusivity provisions do not bar a non-employee’s recovery for injuries that are not legally dependent upon an injury suffered by the employee.  As to the second question, the court found that it was foreseeable that an employer’s negligence in permitting the spread of COVID-19 will cause members of the employee’s household to contract the disease, but recognizing a duty of care in this context would impose an intolerable burden on employers and society in contravention of public policy.

The Kuciemba case was filed in Superior Court and was removed to Federal court.  The plaintiffs in this case relied on the take home COVID argument unsuccessfully at the trial level and the case was on appeal when the See’s Candies case was published.  The Kuciemba case had a similar fact pattern to See’s Candies, both cases pled liability based on a take home COVID theory, and both sets of defendant’s relied on a derivative injury defense.  The Ninth Circuit was addressing California law on take home COVID, so it requested that the Supreme Court answer the two above questions.

The take home COVID argument is basically that an employee claims that they became infected with COVID-19 at work and then took the infection home and infected their family members.  These family members would then file a civil suit in state or Federal court against the employer for negligence.  This argument has been tried many times in California and other states and seems to have been successful in only one case other than See’s Candies. 

The Derivative Injury Doctrine

The courts would generally hold that application of the derivative injury doctrine meant that the claim was barred by the workers’ compensation exclusive remedy rule.  As explained on page 5 of the opinion, “In general, workers’ compensation benefits provide the exclusive remedy for third party claims if the asserted claims are “collateral or derivative of” the employee’s workplace injury”.  Basically, a family member’s claim for an injury that derived from an employee’s workplace injury was barred by worker’s compensation exclusivity.  However, a family member’s claim of injury for their own independent injury was not barred, even if both injuries stemmed from the same negligent conduct of the employer. 

The Supreme Court in Kuciemba held that the employee’s spouse was not required to prove an injury to her spouse (the employee) in order to prove her negligence claim.  Rather, Mrs. Kuciemba merely need to show that her husband was exposed to the virus at work and carried it home to her.  It did not matter whether her husband (the employee) ever developed COVID-19 himself or had any cognizable injury from exposure to the virus.  Thus, the court held, the spouse’s negligence claim was not legally dependent on any actual injury to the employee.  The court reviewed several cases regarding the derivative injury doctrine and stated “We now clarify that, without more, a mere causal link between a third party’s personal injury and an employee’s injury is not sufficient to bring the third party’s claim within the scope of the derivative injury rule”. (p. 15)  The court went on to hold “The pertinent question is not whether an employee’s work-related injury was a “but for” link leading to the third party injury. Instead, the pertinent question is whether the plaintiff’s claim is logically or “legally dependent” on that employee injury”. (p. 17) Because the spouse’s negligence claim did not require that she allege or prove that employee suffered any injury, it was not barred by the derivative injury rule.

The Duty of Care Argument

The “general rule” of duty in California is established by Civil Code section 1714(a), which states in relevant part: “Everyone is responsible, not only for the result of his or her willful acts, but also for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself or herself.”

The Kuciemba plaintiffs argued that the employer had a duty of care to it’s employees and their households and that they violated this duty of care when, in violation of a public health order, the employer transferred employees who they had reason to believe had been exposed to the virus that caused COVID.  Mr. Kuciemba came in close contact with those employees, became infected with the virus, and passed it on to his wife.  The argument was that the employee became a vector of transmission to the wife by acquiring the virus at the workplace and bringing home the harmful substance that harmed his wife.

The court analyzed cases involving duty of care and the impact on the general public of finding a tort liability.  The court examined both the positive and the negative societal consequences of recognizing a tort duty. The court found that, imposing a duty of care on employers to prevent the spread of COVID-19 to employees’ household members would be a “floodgates” situation. “In addition to dire financial consequences for employers, and a possibly broader social impact, the potential litigation explosion facilitated by a duty to prevent COVID-19 infections in household members would place significant burdens on the judicial system and, ultimately, the community”. (p. 44)  The court found that the burden to the employer and to the community weigh against imposing a duty of care and liability for its breach.

The court held “In sum, while the foreseeability factors and the policy factor of moral blame largely tilt in favor of finding a duty of care, the policy factors of preventing future harm and the anticipated burdens on defendants and the community weigh against imposing such a duty”. (p. 45)  They also stated “Imposing on employers a tort duty to each employee’s household members to prevent the spread of this highly transmissible virus would throw open the courthouse doors to a deluge of lawsuits that would be both hard to prove and difficult to cull early in the proceedings. Although it is foreseeable that employees infected at work will carry the virus home and infect their loved ones, the dramatic expansion of liability plaintiffs’ suit envisions has the potential to destroy businesses and curtail, if not outright end, the provision of essential public services”. (p. 46)

Impact of this decision

This has been a closely watched decision by both workers’ compensation and civil counsel.  It has also had the business community on edge.  The Supreme Court has found that take home COVID is a valid legal theory.  However, it seems to be a pyrrhic victory for those bringing claims.  They cannot seek recovery under California workers’ compensation as they are not part of the employment bargain and the Supreme Court was very clear that take home COVID claims are a separate injury for the at home spouse and thus were not derivative of an employee’s claim.  There would have to be some very creative arguments to find workers’ compensation liability now.  They cannot assert a cause of action on which relief may be sought in civil court (state or federal) as the Supreme Court has found that there is no duty of care.

It will be interesting to see if workers’ compensation applicant attorneys or civil plaintiff’s attorneys are able to find a path to liability in take home COVID cases after this decision.

"In an opinion released 7/6/23, the California Supreme Court ruled that: (1) If an employee contracts COVID-19 at the workplace and brings the virus home to a spouse, the derivative injury rule of California’s workers’ compensation law does not bar a spouse’s negligence claim against the employer; and (2) An employer does not owe a duty of care under California law to prevent the spread of COVID-19 to employees’ household members."

 www.courts.ca.gov/...