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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.