Contributed by John D. Maxwell
The legalization of the use of marijuana for medical purposes, most significantly pain relief, has been raised in various workers’ compensation cases throughout the State. A very compelling case was presented to the Workers’ Compensation Review Board back in May of 2016 in the matter of Petrini v. Marcus Dairy, Inc. In this case the claimant was suffering from significant pain as a result of failed back syndrome following lumbar surgery.
The injury rendered him totally disabled and to control his pain he was on Cyclobenzaprine, Clonazepam, Oxycodone, Opana, Fentanyl, Lidoderm Patches, Alprazolam, Lexapro, Percocet and OxyContin. In addition, a spinal cord stimulator had been surgically inserted, but was not functioning. All of these medications had numerous adverse side effects such as lethargy, possible tooth loss, nausea, irritability, weight gain, insomnia and stress. After the claimant was cleared for the use of medical marijuana through a physician he found that this remedy, in lieu of the medications, was admirably controlling his pain symptoms and dramatically reducing his gastrointestinal side effects as he weaned himself off the last of his narcotic medications. His physician testified that there should be no question of the medical necessity in substituting the medical marijuana for opiate medications. The evidence showed that the medical marijuana had a very significant and positive impact on the claimant’s pain syndrome allowing him to greatly increase his activities.
The insurance company for the employer vigorously opposed the authorization of marijuana as a pain treatment modality for several reasons including the fact that it was not approved by the Federal Food & Drug Administration, that there are potential criminal penalties for the improper use of medical marijuana and authorizing the use of medical marijuana in connection with a workers’ compensation claim would be contrary to the employer’s right to a drug free work place. The Commissioner overseeing the case sided with the claimant and his doctor and found that the use of medical marijuana was both reasonable and necessary and approved its use directing the employer’s insurance company to authorize and pay for the same. This decision by the Commissioner was upheld in the appeal to the Compensation Review Board (CRB) and the respondents took a further appeal to the State Supreme Court. Unfortunately, during the pendency of this appeal, the claimant settled his claim so that the Supreme Court never got to address the issue.
Recently in Edward C. Caye v. Thyssenkrupp Elevator the Compensation Review Board again was presented with a question of whether or not insurers in the workers’ compensation forum could be forced to pay for properly prescribed medical marijuana for insured claimants either on a reimbursement basis or authorizing the validly prescribed medical marijuana treatment going forward and paying for it directly. In that matter the claimant fell in the course of his employment and sustained catastrophic injuries which led to a five level back fusion and several surgeries on his right leg which were unsuccessful resulting in an amputation. The claimant was given several opiate prescription medications and suffered from depression. A board certified pain management physician prescribed medical marijuana to treat his post-laminectomy syndrome and his post-amputation stump neuralgia pain and phantom limb pain. The claimant testified that the medical marijuana helped with his depression and was able to sleep, alleviated anxiety, made him less volatile with family members and diminished the phantom pain he had experienced from the loss of his leg. The pain management physician testified that the use of medical marijuana enabled the claimant to reduce his Oxycodone intake and to improve his activities of daily living. In addition, the insurer hired a physician to assess the claimant’s condition and he was in agreement with the claimant’s treating physician testifying how medical marijuana has shown to be effective for individuals with central neurological system complaints in conditions such as spinal cord injury as well as phantom pain and, in fact, recommended that the medical marijuana be authorized as a treatment regimen for the claimant.
Significantly in this matter the insurer litigating the case before the CRB was actually the re-insurer; that is, the company that took over the claim after the primary insurance company had exhausted its policy limits. Prior to the involvement of the re-insurer the primary insurer had been reimbursing the claimant for his medical marijuana expenses. The re-insurer claimed that forcing it to authorize and pay for medical marijuana going forward would in effect be forcing it to violate federal criminal law including the Controlled Substances Act because marijuana remains under federal criminal law a Schedule 1 prohibited controlled substance. In addition they made the claim that to do so could expose them for criminal liability under the Racketeer and Corrupt Organizations Act or RICO.
As for the issue of reimbursing the claimant for his costs of obtaining medical marijuana the insurer claimed that ordering it to do so would in effect be ordering it to aid and abet the claimant in a violation of federal criminal law, namely the Controlled Substances Act.
The CRB noted that to its knowledge there had been no federal prosecution of any person for lawfully obtaining and using with a valid prescription medical marijuana in the states where medical marijuana is legal. It pointed out that annual legislation by Congress since 2015 that is incorporated into the federal budget prevents the use of federal funds to prosecute anyone in compliance with a state authorized medical marijuana program and determined the insurer’s argument that ordering it to reimburse the claimant for his medical marijuana expenses would make it an aider and abettor of a federal law violation was unpersuasive at best. It also reasoned that since the insurer would be subject to a monetary sanction under our state Workers’ Compensation Act if it refused to comply with the order it would be very difficult if not impossible to prove the necessary criminal intent. They noted further that there is no indication that it could find suggesting that Congress is likely to stop passing legislative measures prohibiting the use of federal funds to prosecute medical marijuana use that is lawful under state law.
In sum the review board felt that the insurer’s concerns were more theoretical than tangible and if circumstances changed in the future they could seek a modification of the findings on reimbursement. The review board reversed the order of the hearing commissioner directing the insurer to pay prospectively for marijuana prescriptions essentially on procedural grounds without getting to the merits of the insurer’s claims. The insurer’s arguments on this part of the issue; that is, authorizing and directly paying for medical marijuana going forward have more merit and without question the insurer in Caye will take an appeal to the Connecticut Supreme Court and if unsuccessful there they will petition the United States Supreme Court to determine its claims regarding federal criminal law. Until those appeals are resolved it is unlikely that workers’ compensation insurers will be authorizing and directly paying for medical marijuana in the ordinary course of claims administration.
Both the Petrini and Caye cases do demonstrate, however, the willingness on the part of our Workers’ Compensation Commission to accept medical marijuana as a viable treatment alternative for claimants with chronic and debilitating pain. Some insurers during the pendency of these appeals may be willing to reimburse a claimant for expenses incurred in obtaining medical marijuana which was done by the primary insurer in the Caye case. It is unlikely, however, that until the appeals are resolved or Congress enacts legislation legalizing medical marijuana on a federal level that insurers will willingly authorize and direct pay for medical marijuana as a reasonable and necessary medical treatment expense.
If you have any questions on this topic, please contact Attorney John D. Maxwell.