Marijuana, Referral for Certification can’t be Medically Necessary in Florida

Frank Ferreri

Tallahassee, FL ( – Voters across the county, including those in Florida, have elected to make “medical marijuana” legal in their states, but as a recent Florida case shows, that doesn’t mean employers will be on the hook for injured workers seeking cannabis treatment.

Not only did the court in Jones v. Grace Healthcare, (Fla. Dist. Ct. App. 06/30/21) hold that marijuana couldn’t be medically necessary, it also found that a referral to a doctor who would certify a marijuana request couldn’t be medically necessary either.

Pain, Treatment

The worker experienced a lower back injury on the job, and his employer health care company accepted compensability. Following 16 years of treatment with oral pain medications, the worker complained about side effects and asked his doctor about trying medical marijuana to control his pain.

The doctor indicated that he was not in a position to “prescribe” marijuana, so he referred him to another doctor. When the worker sought authorization for the referral, the company denied the request, prompting the worker to petition a judge of compensation claims.

At the hearing, the worker provided testimony from both doctors concluding that the referral for a medical marijuana evaluation was medically necessary and causally related to the workplace accident. The company countered that state law precluded marijuana from being reimbursable and federal law prohibited an employer from paying for medical marijuana.

The JCC concluded that medical marijuana was a medically necessary benefit to help the worker reduce the side effects of his pain medication. However, the JCC pointed to a provision of Florida law detailing that marijuana “is not reimbursable” under state workers’ compensation law.

The JCC also determined that this provision of law prohibited reimbursement for doctors’ evaluations to obtain the certification necessary to receive medical marijuana. The JCC also concluded that requiring the company to pay for or facilitate a worker’s marijuana use would expose it to criminal liability under federal law.

The worker sought a rehearing, which the JCC denied, prompting the worker to appeal to court.

Medically Necessary?

In Florida, before a medical service can be considered medically necessary, it must be tied to treatment for an employee’s injury and be “consistent with the location of service, the level of care provided, and applicable practice parameters.”

In the worker’s case, the court explained that there was no distinction under the law between an evaluation for certification to receive medical marijuana and marijuana treatment itself.

“The statutory definition of ‘medically necessary’ ties the requested medical service to the treatment of the employee’s injury,” the court wrote. “A medical evaluation is not the same as treatment, so there can be no assessment of the medical necessity of an evaluation without looking at the treatment objective behind that evaluation.”

In the court’s analysis, because marijuana was not reimbursable under Florida workers’ compensation law, it wasn’t medically necessary and an evaluation tied to medical marijuana couldn’t be medically necessary either.

The court also pointed out that the federal Controlled Substances Act still classifies marijuana as a Schedule I drug with “no currently accepted medical use.” Although Florida law allows for the purchase, possession, and use of marijuana for medical purposes, the court held that federal law “must prevail” in a claim aimed at requiring an employer to pay for marijuana-related services.

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