by Karl Voigt
If marijuana law is a particularly dynamic field of practice, then marijuana law as it pertains to Workers’ Compensation law is even moreso mutable. We have all seen news coverage of individual states trying to get a handle on changing legal standards with respect to marijuana growing, sales, and use. Only now are we beginning to see coverage of new stories that involve using marijuana to treat work injuries.
Two very new cases come to us from Maine, where medical marijuana is legal. Both come from the state’s Workers’ Compensation Board Appellate Division and both serve to advance the use of marijuana to treat injured workers’ chronic pain. In Bourgoin v. Twin Rivers Paper Company, WCB App. Div. No. 16-26 (August 23, 2016) and Noll v. Lepage Bakeries, Inc., WCB App. Div. No. 16-25 (August 23, 2016), the appellate reviewers essentially determined that federal law does not prohibit requiring the workers’ compensation employer and insurer to pay for medical marijuana.
While Maine does prohibit private health insurers from paying for medical marijuana, there is no such prohibition against workers’ compensation insurers paying for that treatment. Therefore, in Maine, so long as it is found “reasonable and proper”, a workers’ compensation insurer can be compelled to pay for medical marijuana.
Pennsylvania’s law is not quite this liberal; the Pennsylvania Worker’s Compensation Act requires that workers’ compensation insurance carriers pay for work-related medical treatment. Because the US Food and Drug Administration (FDA) has never categorized medical marijuana as medical treatment, insurers in Pennsylvania likely cannot be compelled to pay for medical marijuana
Regardless, the Maine employers challenged the judges’ rulings, arguing that federal law prohibits use of marijuana as a controlled substance. Paying for medical marijuana, they insisted, would put them at risk for federal prosecution, as the federal government’s authority to prosecute drug crimes supersedes Maine’s. The appellate Board, referring to the federal Justice Department’s own public statements that interfering with state medical marijuana laws is not one of its enforcement priorities, ruled that there was virtually no such risk of such prosecution.
Both cases ultimately allowed not just for the injured worker to use medical marijuana for treatment of chronic pain, but also compelled the workers’ compensation carrier to pay for that treatment. This is just the most recent ruling in this fledgling area of law. Stay tuned here for updates.