Comp and Cannabis: CO Stuck in ‘Limbo’

09.27.2017


By Dara Barney

This is the next article in WorkersCompensation.com's “Comp and Cannabis” series, as Editor Dara Barney explores medical marijuana legislation state-by-state, and what it means regarding workers' compensation.

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Colorado leads the rest of the nation as the first state to legalize recreational marijuana, but an uncertainty exists on the medical side of the industry, notes Paul Tauriello, Director of the Colorado Division of Workers' Compensation, in a recent interview with WorkersCompensation.com.

“The medical marijuana constitutional amendment here is designed not to force any insurer to pay for it. …We are in a period of growth, and the interest in marijuana as an alternative to opioids is gaining strength. There is an uncertainty in how to move forward. If you look to New Mexico, they require insurers to pay for it. But here, they aren’t forced to pay for it, but injured workers have access to it,” he said. “While some evidence can point to cannabis being an effective treatment for pain, we lack the studies to make qualified recommendations to say, ‘Yes, take this much CBD (Cannabidiol) at this weight, etc. etc. and know what the exact effect will be.’”

Although the law in Colorado doesn’t require insurance companies to reimburse for medical marijuana, there are a few payers who have been interested and have reimbursed behind the scenes, per Tauriello. “We are starting to see a situation where it isn’t just ‘No, we won’t pay for this,’ to ‘Ok, how do we go about paying for this?’”

As noted in previous Comp and Cannabis coverage, it is can be less expensive to pay for a medical marijuana supply vs. opioids.

“Payers are looking for qualified folks who are qualified to integrate both schemes: Balancing conventional pain therapy, while integrating medical cannabis into the treatment as a modification,” he said.

The qualifications to become certified as a medical-marijuana card-carrying patient can be difficult in some states, including getting two doctors to agree the patient needs it in New Mexico, said Mark Pew, Senior Vice President of PRIUM, and “RxProfessor” who presents on a national level year-round. “You can envision patients using the recreational route, and paying more with the extra taxes, to avoid that criteria. Then on top of that, may not get the advice necessary to make the best treatment choices."

But Tauriello said in Colorado, it is just a one-doctor qualification guideline.

“It’s pretty simple, it isn’t a hard hill to climb,” he said. “The problem that you run into with a hypothetical patient who has decided to self-medicate with recreational use, alcohol use, or any drug use for that matter, is that a doctor doesn’t want to treat someone with that unknown in their bodies, and can refuse to help that patient.”

Another issue, according to Dr. Kathryn Mueller, Medical Director of the Colorado Division of Workers’ Compensation, is exact dosages of the drug. “…The real problem is despite what producers are saying, it isn’t clear to us (the medical community) that they truly know what doses they are giving,” she said. “…We also aren’t completely aware of all the different side effects, i.e. whether or not it impairs driving.”

“…It isn’t federally legal. The problem, in reality, while workers’ comp won’t pay for it in most states, is that it doesn’t necessarily mean it should be a treatment for all chronic pain patients…there aren’t enough studies that point to strong enough evidence it is as effective as other treatments. It’s complicated, and the CBD effects on different patients aren’t clear.” 

Workers face a sort of “double whammy” when it comes to drug testing, according to Tauriello. “If an employer finds traces of THC in your system, even from weeks ago, post-accident, (depending on their policies), you can not only be fired, but your temporary indemnity benefits can be cut off, because you violated the company drug policy,” he said. “So employers are stuck in this weird limbo too. Do they adhere to strict testing guidelines, and perhaps limit their pool of who to hire in a state with low unemployment that may result in challenges in finding qualified people or abandon testing altogether and take a different kind of risk? It obviously depends on the industry too… dangerous constructions jobs will have different requirements than a retail job.”

With medical marijuana use legal at the state level, and illegal at the federal level, employers can refer to their drug use policies, as in the 2015 State Supreme Court Case Coats v. Dish Network. Colorado resident and medical marijuana-licensed quadriplegic Brandon Coats was fired from his job after testing positive for THC (tetrahydrocannabinol) at work. The Court ruled in favor of the employer, as the drug is still deemed illegal under federal law.

“The genie is out of the bottle and (US Attorney General) Jeff Sessions is going to have a tough time slowing things down. No matter where you stand, this is going in one direction only: Forward. Sessions came in wanting to push this all back. The thing is, if they became bound and determined, they could shut it down nationwide, but it hasn’t happened,” Tauriello said. “It’s that weird limbo where it isn’t quite legal and the medical community can’t quite touch it yet. There could be a lot of money in this, and a niche has been created. It’s only a matter of time until everyone will want to play in this sandbox. But, for now, only some people in the industry can make money right where everything sits, in this limbo.”

Tauriello talked about the federal drug schedules under the Controlled Substance Act as well. “ I think it is pretty ridiculous we are categorizing a whole plant, ‘marijuana’ a schedule I substance,” he said. “Research and studies needs to be completed on the various individual cannabinoid components in the plant before such categorizations should be made. Following such studies, it may make sense to categorize CBD under one schedule, and THC under another.”

As far as an effective tool for treatment in injured workers, Tauriello noted different studies pointing to proof in controlling pain, and lower costs. He also took the time to acknowledge negative effects, like constant use potentially leading to impairments in the work-reward parts of the brain in younger age groups, according to one study.

While cautioning the need for more scientific studies to aide in evidence, efficacy and treatment benefits, Tauriello said of the medical benefits: “I see the potential there, absolutely. It can’t be ignored.”

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Watch for the quarterly “Hot Seat” webinar scheduled to run Sept. 29, which will feature hosts WorkersCompensation.com CEO Bob Wilson and Florida Deputy Chief Judge of Compensation Claims David Langham. This month’s topic will be “Opioids and Formularies: Going to Pot?” Guests will be Pew, and Texas Workers’ Compensation Commissioner Ryan Brannan. Registration is available here.  

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