The Expert 5-Step Guide On Medical Marijuana and Workers' Compensation Claims

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While still illegal under federal law, medical marijuana has become legal in some form within many states across the country. The Louisiana legislature authorized medical marijuana in 1978 for a limited number of conditions, and the product was finally available to dispense in 2019. Lawmakers continue to expand the qualifying conditions for medical marijuana. Today, it is codified at La. R.S. 40:1046.

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The expansion of laws in the state of Louisiana legalizing medical marijuana creates a greater risk of potential workers’ compensation claims involving employees who are impaired because of the use of marijuana at the time of an incident. That is why LHA Trust Funds expert attorneys have created this guide — to help your organization navigate through the liabilities that may arise from employee use of medical marijuana on the job.

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1. Get Familiar with the Latest Qualifying Conditions

The first step in navigating through potential workers’ compensation claims resulting from the use of medical marijuana is to understand the conditions that qualify a patient to use medical marijuana as a form of treatment legally.

Authorized clinicians can recommend medicinal marijuana to patients who have debilitating medical conditions. Per the statute, a debilitating medical condition refers to any of the following:

• Cancer.
• Glaucoma.
• Any of the following neurodegenerative diseases and conditions:
  • Alzheimer's disease.
  • Amyotrophic lateral sclerosis.
  • Huntington's disease.
  • Lewy body dementia.
  • Motor neuron disease.
  • Parkinson's disease.
  • Spinal muscular atrophy

• Positive status for human immunodeficiency virus.
• Acquired immune deficiency syndrome.
• Cachexia or wasting syndrome.
• Seizure disorders.
• Epilepsy.
• Spasticity.
• Severe muscle spasms.
• Intractable pain.
• Crohn's disease.
• Muscular dystrophy.
• Multiple sclerosis.
• Post-traumatic stress disorder.
• Any of the following conditions associated with autism spectrum disorder:
  • Repetitive or self-stimulatory behavior of such severity that the physical health of the person with autism is jeopardized.
  • Avoidance of others or inability to communicate of such severity that the physical health of the person with autism is jeopardized.
  • Self-injuring behavior.
  • Physically aggressive or destructive behavior

• Traumatic brain injury.
• A concussion as diagnosed by a physician.
• Chronic pain associated with fibromyalgia.
• Chronic pain associated with sickle cell disease.
• Any condition for which a patient is receiving hospice care or palliative care.
• Any condition not otherwise specified in this Subparagraph that a physician, in his medical opinion, considers debilitating to an individual patient and is qualified through his medical education and training to treat.

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2. Note the Final, Catch-All Section

It is important to understand which criteria determine intractable pain. The statute defines “intractable pain” as “a pain state in which the cause of the pain cannot be removed or otherwise treated with the consent of the patient and which, in the generally accepted course of medical practice, no relief or cure of the cause of the pain is possible, or none has been found after reasonable efforts. It is pain so chronic and severe as to otherwise warrant an opiate prescription.”

This would seem to apply to many long-term pain management patients.

La. R.S. 40:1046.J states that “notwithstanding any other provision of law to the contrary, employers and their worker's compensation insurers shall not be obliged or ordered to pay for medical marijuana in claims arising under Title 23 of the Louisiana Revised Statutes of 1950, the Louisiana Workers' Compensation Law.”

The workers’ compensation statute has not been specifically amended to incorporate changes brought on by the new marijuana laws. However, 23:1081(C)(5) provides that “If there was, at the time of the accident, evidence of either on or off the job use of a nonprescribed controlled substance as defined in 21 U.S.C. 812, Schedules I, II, III, IV, and V, it shall be presumed that the employee was intoxicated.”

Therefore, if an employee is taking marijuana consistent with his prescription, no presumption of intoxication will arise.

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3. Understand the Process for Obtaining Medical Marijuana Licenses

To obtain medical marijuana, a patient must see a physician that is in good standing with the Louisiana State Board of Medical Examiners. Some physicians prescribe medical cannabis via telemedicine, and the physician prescribing the cannabis may not be the patient’s primary care doctor. However, patients can inquire with their primary care doctor about who prescribes it.

Note that the statute requires the physician and patient to have a “bona fide” doctor-patient relationship. It is unclear what that means, but it is most easily understood as meaning that a patient must be receiving treatment from the doctor and not solely scheduling a visit for access to a prescription.

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4. Determine the Nature of the Claimant’s Marijuana Use

Therefore, if a worker’s compensation claim arises involving an employee who has confirmed legal use of medical marijuana, a physician should ask them the following:

• Who prescribed the drug?
• What condition are you taking the drug for?
• Where is the prescription filled?
• How many times a day does the prescription allow use?
• What times of day does the prescription allow use?
• How many grams are dispensed at each refill?
• How often is it refilled?
• When was the last refill (remember, only 2.5 grams per 14 days are allowed)?

A claimant could have marijuana for conditions appearing on the Second Injury Fund (SIF) Post-Hire Medical Questionnaire. The Questionnaire also asks if the claimant is currently under a doctor’s care. If the claimant is actively using medical marijuana, the answer to that question should be yes.

You will need to find out what condition the claimant is using medical marijuana to treat. Utilizing a normal medical record release for this task will do. Send one to the prescribing physician and one to the pharmacist that fulfilled the prescription.

If the reason for the medical marijuana prescription is one for which the claimant is treating in the compensation case (such as chronic back pain) or is related to it (such as depression, diabetes, etc.), you may have a SIF reimbursement claim. If the claimant did not admit to the condition on SIF post-hire medical questionnaire, it may be considered a 23:1208.1 fraud case. Please be advised that you need to prove prejudice to prevail on a 1208.1 claim. Proof of 1208 fraud does not require prejudice. Be sure to ask about medical marijuana use in every initial interview.

Establishing a Claimant's Routine

We recommend asking the following questions before inquiring about the incident:

• Do you use medical marijuana?
• If so, how many times a day do you use it?
• What time(s) of day do you use it?
• How long does it take for you to feel the effects?
• How long do the effects last?
• How long do you receive relief from your condition?
  

Asking About the Incident

Once you establish the claimant’s normal medical marijuana routine, you can move on to the day of the incident.

Ask the following questions:

• Did you use marijuana before beginning your work shift?
• If so, how long before beginning your shift? What time did you use it?
• Do you believe that you were still under the influence of marijuana while at work?
• Did any of your coworkers or supervisors know that you used marijuana before that shift?

Questioning the Claimant’s Judgment

If the claimant used marijuana before going to work but claims that they were not under the influence at the time of the incident, you may wish to take them through the following sequence:

• You told me that you last used marijuana at 8:00 a.m.
• You told me earlier that the effects last about 45 minutes.
• Your shift started at 9:00 a.m.
• What time did you arrive at work?
• What time did you leave your house?
• By your timelines, you were knowingly driving under the influence of marijuana, correct?

By approaching the claimant in this manner and showing that they knowingly perform activities such as driving, while under the influence, you can damage their credibility when they later claim that they were not under the influence at the time of the incident.

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5. Consider An Intoxication Defense

Given that no test can prove marijuana intoxication at a certain point in time, someone with a medical marijuana card will have an improved chance of beating an intoxication defense. An employer can prevail only if evidence other than a drug test can prove intoxication. This would primarily include witness evidence.

The mere fact that a claimant used medical cannabis products should not preclude an intoxication defense. You can take several steps to try to defeat the impact of the marijuana prescription on the intoxication defense.

First, if the claimant uses more than the prescribed dose, an intoxication defense is still possible. The claimant only has permission to use the amount on the prescription. Using more than that is not protected.

To determine if the claimant is using the appropriate amount, you will need to obtain the services of a toxicologist. They may or may not be able to opine that the claimant could not have obtained the marijuana levels in their system by medical marijuana use alone. If the toxicologist can testify that the evidence shows that the claimant is overdosing, they should lose the shield of protection from their prescription, allowing a presumption of intoxication.

Second, you can try to prove that the claimant is not obtaining all their marijuana from the pharmacy. Doing so would cause the claimant to lose the protection of their prescription. A prescription should not be blanket protection for the claimant to use as much as they want or to obtain marijuana from sources other than a legitimate pharmacy. If the claimant is acquiring it off of the street, it is not medical marijuana and the presumption should apply.

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Employees Returning to Work on Medical Marijuana in Louisiana

23:1221(g) states that “when an injured employee has been released to return to work with or without restrictions, and the employer maintains an established written and promulgated substance abuse policy which requires employer-administered drug testing before employment or a return to work, upon the employee's failure to meet the requirements of such employer's established policy and inability to qualify for the position for that reason, the obligation for all benefits pursuant to this Chapter, with the sole exception of the obligation to provide reasonable and necessary medical treatment, shall be terminated and the employee shall be subject to the terms and conditions established in the employer's promulgated drug testing policy and program. The provisions of this Subparagraph shall not apply to prescription medication prescribed for the employee in the dosages so prescribed by a physician.”

In other words, if an employee fails the employer’s return-to-work drug screen, he loses all future rights to indemnity. Therefore, if an employer prohibits the use of medical marijuana while employed, an employee failing a return-to-work drug screen could forfeit indemnity benefits.

Note that this section has not been amended to address the legal use of medical marijuana to treat the conditions mentioned above. It also provides no exceptions for opioid use or other similar drugs, which are generally prohibited in safety-sensitive environments.

However, it could be expected that if a claimant was prescribed medical marijuana or opioids and made that known to the employer upfront, this section would not apply. It is unlikely that an OWC judge would terminate benefits in the face of an otherwise valid medical treatment.

However, you can use the steps above to test whether the claimant failed the drug test due to prescription or recreational use. If you can prove recreational use, you may be able to terminate benefits according to this section.

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The Impact of Medical Marijuana On Workers' Compensation Insurance

Medical marijuana changes the workers’ compensation landscape in many ways. By closely questioning the claimant on the need for their medical marijuana use and examining evidence to ensure that the claimant is only using medical marijuana and not the street variety, you can preserve the legitimate intoxication cases.

For more support navigating medical marijuana use in the healthcare industry, check out our Medical Marijuana Toolkit.

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About the Authors

Todd A. Delcambre
Attorney, LeBas Law Offices

Todd Delcambre practices law in the areas of Louisiana workers' compensation, insurance and reinsurance, and subrogation at the LeBas Law Offices.

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Barry J. Rozas
Attorney, LeBas Law Offices

Barry Rozas practices law in the areas of Louisiana workers' compensation, general liability, and subrogation at the LeBas Law Offices.