Impact on Florida Workers' Compensation Claims from Legalizing Marijuana

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For those of you that feel that the Florida State Constitution does not have enough amendments, you can add the legalization of “Medical” Marijuana to list. The legal language of Amendment 2 was written to explicitly allow medical marijuana to be provided as a treatment for patients with the following specific diseases:

1. cancer
2. epilepsy
3. glaucoma
4. HIV
6. post-traumatic stress disorder (PTSD)
7. amyotrophic lateral sclerosis (ALS)
8. Crohn's disease
9. Parkinson's disease
10. multiple sclerosis

It is hard to argue against allowing patients suffering from any of those debilitating and sometimes deadly diseases from using marijuana even if there are no studies outlining the underlying medical benefits claimed. However, just like any language drafted by lawyers, those intending to exploit and expand the intended use that was sold to Floridians for a “yes” vote, the latest amendment contained in Article X, Section 29 of the Florida State Constitution has a “catch all” provision. Specifically, any licensed physician will have the ability to certify patients for medical marijuana use after diagnosing them with some "other debilitating medical conditions of the same kind or class as or comparable to those enumerated." I wonder what medical conditions might be considered by a licensed physician to be “of the same kind or class as or comparable to those enumerated.” For starters, not that the language of the new amendment requires it, but there is a plethora of medical literature showing the connection and similarities of Major Depressive Disorder (“MDD”) and Post-traumatic Stress Disorder (“PTSD”). In fact, Florida’s First District Court of Appeal has expanded the instances in which these disorders must be accepted as part of the compensable injury in a workers’ compensation matter. Take a look at the decision in McKenzie v. Mental Health Care (ignore the names of the attorneys) and you will see the ease at which a well-coached claimant can easily add these conditions to just about any claim. Below is a fictional anecdote to help illustrate the inevitable lowering of the bar:

Patient: Doctor, having to attend physical therapy is making me depressed.

Doctor: Not to worry, I have the perfect recommendation. Here is a script for marijuana to use “as needed” for depression.

Given this likely scenario, we are now forced to confront the issue of how this new Florida State Constitutional Amendment will impact our ever changing landscape in workers’ compensation.

I. Marijuana Recommendations for Treatment of Workplace Injuries:

One of the most important defenses available concerning the denial of medical care is that the benefit is not “medically necessary.” The Statute defines “medically necessary” as:

any medical service or medical supply which is used to identify or treat an illness or injury, is appropriate to the patient’s diagnosis and status of recovery, and is consistent with the location of service, the level of care provided, and applicable practice parameters. The service should be widely accepted among practicing health care providers, based on scientific criteria, and determined to be reasonably safe. The service must not be of an experimental, investigative or research nature.

Section 440.13(1)(l), Florida Statutes (1994) (emphasis added). Consequently, you should only consider authorizing medications, therapies and procedures that are not experimental, investigative or research nature.” However, considering the quality of the statutory construction throughout the rest of the statute, it should come as no surprise that the legislature provided guidance or definition for the terms “experimental” or “investigative”. Consequently, we are forced to look to other laws for insight on this portion of the defense in order to determine its size, scope and application. Pursuant to Florida Administrative Code in the context of reimbursable Medicaid medical expenses, the terms “Experimental”, “Experimental and clinically unproven” or “Investigational” as related to drugs, devices, medical treatments or procedures all mean that:

1. The drug or device cannot be lawfully marketed without approval of the U.S. Food and Drug Administration (FDA) and approval for marketing has not been given at the time the drug or device is furnished; or
2. Reliable evidence shows that the drug, device or medical treatment or procedure is the subject of on-going phase I, II or III clinical trials or under study to determine its maximum tolerated dose, its toxicity, its safety, its efficacy, or its efficacy as compared with the standard means of treatment or diagnosis; or
3. Reliable evidence shows that the consensus among experts regarding the drug, device, or medical treatment or procedure is that further studies or clinical trials are necessary to determine its maximum tolerated dose, toxicity, safety or efficacy as compared with the standard means of treatment or diagnosis.
4. The drug or device is used for a purpose that is not approved by the FDA.

Furthermore, in this context, “Reliable Evidence” refers to only:

published reports and articles in the authoritative medical and scientific literature; the written protocol or protocols used by the treating facility or the protocol(s) of another facility studying substantially the same drug, device or medical treatment or procedure; or the written informed consent used by the treating facility or by another facility studying substantially the same drug, device or medical treatment or procedure.

See Florida Administrative Code Rule 59G-1.010 (2006).

According to the website of the Department of Health and Human Services, the FDA has not approved any drug product containing or derived from botanical marijuana. In fact, the only studies of which the FDA is aware involve attempts to treat glaucoma, AIDS wasting syndrome, neuropathic pain, cancer, multiple sclerosis, chemotherapy-induced nausea and certain seizure disorders.

Consequently, the appropriate response to a request for authorization of a prescription from an authorized doctor for Marijuana is “NOT MEDICALLY NECESSARY.”

II. Accidents Caused by the Use of Marijuana:

Today, claims are regularly denied pursuant to the statutory authority provided employers in the workers’ compensation statute when an employee is injured while under the influence of drugs or alcohol. Pursuant to the legalization of medical marijuana, one can imagine the likelihood of the following scenario:

Patient: Doctor, the price of this bong is making me depressed.

Doctor: Not to worry, as soon as I stuff this giant chemically engineered highly potent ganja bud in that $20.00 bong you will feel much better.

Meanwhile, still under the effect of breakfast consisting of three bong-hits and seven rice crispy treats, Joe Six-pack goes to work, operates the circular saw to cut some two-by-fours and accidentally slices off the first phalange of his left index finger. He is sent to Acme Urgent-Care where his urine is tested and reveals the existence of THC in his system.

Ordinarily you might expect to have a strong argument that his workers’ compensation claim should be denied. In fact Section 440.09(7)(b) states “if the employee has a positive confirmation of a drug as defined in this act, it is presumed that the injury was occasioned primarily by the intoxication of, or by the influence of the drug upon, the employee.” This is a great defense and one of the few areas where the employer is afforded an evidentiary presumption. However, the actual section of the Statute allowing for the denial of the claim under these circumstances in Section 440.09(3) states as follows:

Compensation is not payable if the injury was occasioned primarily by the intoxication of the employee; by the influence of any drugs, barbiturates, or other stimulants not prescribed by a physician ...

Do you think the claim can be denied under these circumstances? You are not going to like the answer.

Worse yet, do you think firing this employee before he even has an accident once you find out he is smoking pot before coming to work each day could be a violation of the Americans with Disabilities Act? You will not like that answer either.

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