Employer/Carrier May Have to Pay for Claimant’s Medical Marijuana

Bruce Burk

Tampa, FL (WorkersCompensation.com) – Medical marijuana has been controversial since it was introduced as legal in a few states just a couple years ago. Naturally, medical marijuana is becoming more relevant with respect to how doctors treat pain and evaluate patients. Now, a new story out of New York illustrates just this.

A New York town may have to pay for a police officer’s medical marijuana. This came in the form of an appellate decision where the New York Appeals Court sent the case back to the trial court which had denied the claimant his marijuana.

The injured worker has been experiencing low back pain as a result of a car accident that occurred within the course and scope of employment while he was on-duty as a police officer.

The accident happened back in 1997 and the claimant has had chronic back pain ever since. With all that has come out about the dangers of opioids, it is possible the doctor prescribed marijuana as an alternative to addictive drugs.
Interestingly, the claimant had to seek a variance request from a workers’ compensation judge who approved the marijuana. However, the Workers’ Compensation Board could not approve the variance.
Prescribing medical marijuana is still legally controversial, especially since it is still a schedule one substance and illegal at the federal level. Even though some states have legalized it either recreationally or medicinally, it comes down to how the licensing system works.

Doctors get the licenses which allow them to write prescriptions for higher level pain medications from the DEA. Some doctors fear that that if they do something which is technically illegal at the federal level that it could jeopardize a DEA issued license.

To this day, in most states, medical marijuana cannot be authorized as a workers’ compensation benefit. Even in states where medical marijuana is legal, employers may still not be required to accommodate someone who has a medical marijuana prescription. This means the employer could require a worker to take and pass a drug test to keep his job even if he has a doctor’s recommendation for medical marijuana.

The New York case will essentially receive a second trial since the appellate court has remanded the case. When an appellate court believes that the lower court has made a mistake, they will remand the case back for an additional proceeding. This is especially true when the appellate court believes that the trial court did not have appropriate proceedings in the first place. There are other instances in a de novo style appellate review where the appellate court will review the trial court’s evidence and make its own determination on the outcome of the case.

The case will then be subject to another level of appellate review after the trial court makes a decision on the claimant’s medical marijuana. If the injured worker is awarded it as a workers’ compensation benefit, it could be used as precedent in other states to get other claimants the same result. It can also prompt state legislators to change the law for or against medical marijuana.

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