Not only are states approving the use of medical marijuana at an astounding pace, but at least two state supreme courts – in Colorado and in New Mexico – are taking up questions that center on marijuana and the workplace and workers’ compensation. According to the report in the Insurance Journal, such cases are of particular interest to those watching the workers’ comp space, and it has some wondering whether insurers will start being asked to pay for a substance that the federal government considers illegal.
And the National Council for Compensation Insurance (NCCI), says that insurers are starting to receive requests to pay for medical marijuana. However, there are those who believe that at this early stage questions arising around workers’ comp are all talk no action. “It’s got a lot more hype than what’s happening in the marketplace,” said John Leonard, president and CEO of Maine Employers’ Mutual Insurance Co. Leonard said he has surveyed his claims professionals and he’s so far found no instances where medical providers have requested marijuana to treat injured workers. “We have no knowledge of any prescriptions involving the use of medical marijuana,” he said, adding that he’s “perplexed” because that experience is contrary to what he’s so often hearing in the press.
NCCI has been concerned about the implications and been tracking the issue for quite some time, said Lori Lovgren, a state relations executive for the group. “We identified it as an emerging issue a couple of years ago,” Lovgren said, adding that medical marijuana has in many states “had a lot of success in the last few years in the legislature.” Like others in the workers’ comp space, NCCI is particularly interested in cases in Colorado and New Mexico.
In Colorado, in Coats v. Dish Network LLC, a man who was injured and using medical marijuana off-duty was terminated. A judge upheld the termination as lawful because use of marijuana, while it was legalized for both medicinal and non-medicinal uses in Colorado, violates federal law. The Colorado Court of Appeals affirmed the employer’s right to fire the employee, but the Colorado Supreme Court recently granted a review of the case.
Another case being closely watched is the New Mexico case of Vialpando v. Ben’s Automotive Services and Redwood Fire and Casualty. The case is believed to be the first in the nation in which a judge has ordered an insurance carrier to reimburse a workers’ comp claimant for the cost of medical marijuana to treat back pain. That case is being appealed to the New Mexico Supreme Court.
It’s not unreasonable to think that decisions from those high courts could lead the way in other states, said Mark Walls, vice president of communications and strategic analysis for Safety National. “Other states will look at those cases,” Walls said. And when it comes to medical marijuana, states have a history of playing follow the leader.
In 1996 California became the first state to legalize medical marijuana. Some 18 years later, it’s currently legal in 23 jurisdictions and the District of Columbia for medicinal use, and it’s legal without a prescription in Washington and Colorado. “There’s certainly a trend,” said Kambiz Akhavan, president and managing editor of ProCon.org, a nonprofit provider of data on a range of topics that include medical marijuana According to Akhavan, legalizing medical marijuana is now under consideration on a Florida ballot and in the Ohio and Pennsylvania legislatures.
Also trending upward is the list of illnesses that advocates believe marijuana can treat. Among those illnesses being tracked by ProCon.org are: appetite stimulation, Alzheimer’s, arthritis, asthma, Crohn’s, GI tract disorders, glaucoma, migraines, nausea from chemotherapy, general pain, and a host of psychological disorders including depression or schizophrenia, bipolar disorder and Tourette syndrome. “The list is quite long,” Akhavan said.
Other insurance challenges NCCI notes are: an absence of National Drug Code, which creates reimbursement issues; liability concerns for employers and insurance companies that pay for medical marijuana if additional injuries are caused by drug intoxication. And, given federal issues, many state courts will be reluctant to approve medical marijuana for the treatment of work-related injuries.