Kaufman Workers' Compensation Law
A Good News Newsletter! Lots of Positive Developments for Injured Workers Using Medical Marijuana!
I am pleased to report that my Lancaster County MMJ reimbursement test case has settled. The carrier agreed to pay my client a significant (five-digit) lump sum based upon the anticipated monthly cost of medical marijuana purchases for the remainder of his life.
The carrier is also funding a Medicare Set-Aside for the cost of future non-MMJ treatment. While this case will not be decided by a Judge, this is a huge win as my client now has the peace of mind that comes from being able to afford the MMJ treatment which transformed his life.
Those of you waiting for PA Courts to weigh in on whether an injured worker can be reimbursed for their out-of-pocket MMJ costs need not despair. I have filed a new MMJ reimbursement case for an injured worker in Jefferson County, Western Pennsylvania. This Claimant suffered a serious knee injury in 1992. Wage loss benefits were commuted in 1996, with the carrier remaining responsible for medical care. The Claimant has been off all opiates for nearly a year with the help of MMJ. The carrier has refused to reimburse even though they tried for years to get this worker off of opiates.
I have also filed a petition for reimbursement for an emergency services worker who suffered a devastating injury to the dominant arm resulting in RSD (reflex sympathetic dystrophy) and brachial plexopathy. This worker has opted to treat their physical and mental symptoms with MMJ in lieu of a heavy pharmaceutical regimen.
I will be soon filing a reimbursement petition for a worker who suffered a career-ending low back injury in 1977 which resulted in three back surgeries and a dependence on opiates. This worker has been using MMJ to come off the opiates. The worker is now experiencing better pain relief and a new outlook on life as the opioid haze has lifted.
If you know an injured worker using MMJ to treat their work injury please do not hesitate to have them contact me to discuss making a claim for reimbursement with their carrier. Unfortunately, the out-of-pocket cost is the greatest barrier to treatment with MMJ. I offer reduced fees for Claimants seeking MMJ reimbursement if they are not currently receiving wage loss benefits.
I am also interested in hearing from Claimants (and their attorneys) who are lucky enough to have had their comp carrier agrees to reimburse MMJ without litigation to aid those who are still fighting.
NLJ Cannabis Law Trailblazers
I am honored to be named to the National Law Journal's 2019 List of Cannabis Trailblazers.
New York Joins the Ranks of States Directing Workers' Comp to Reimburse Injured Workers for Treatment with Medical Marijuana
Two recent decisions have seen the New York Workers' Comp Board approve an injured worker's request to have workers' comp carriers reimburse them for medical marijuana treatment for their work injury. Unlike Pennsylvania, New York has published treatment guidelines for different work injuries. In order for a carrier to pay for treatment outside those guidelines, a variance must be requested and approved by the NY Board.
In Our Lady of Victory Homes, Case No. G085 6772, the Board noted the conflict between federal law and New York's medical marijuana statute. In granting the employee's variance request, the Board cited the humanitarian purpose of the workers' comp law and the failure of the NY medical marijuana law to specifically prohibit workers' compensation coverage for medical marijuana (as the prohibition was limited to "health insurers"). The Rohrabacher-Blumenauer Amendment was also relied upon. That Amendment has been added to many congressional omnibus spending bills and says that the Federal Government will not prosecute those involved in legal state marijuana programs.
The New York Board again granted a variance in February 2019 in TSC Construction LLC, Case No. G074 9670. The court affirmed that New York's Medical Marijuana law is not preempted by Federal Law, and granted the request of the employee. to have MMJ treatment reimbursed by the comp carrier.
The NY Workers' Compensation Board is currently compelling payment when the following criteria is satisfied:
- the medical provider is both registered with the Department of Health and authorized with the Workers’ Compensation Board;
- medical marijuana treatment is for a (i) serious condition diagnosed at (ii) an established site; and
- MG-2 variances (i) objectively show medical marijuana is medically necessary and treatment pursuant to the Medical Treatment Guidelines is not appropriate or sufficient; and, where relevant, (ii) prove that the claimant suffers from chronic pain as defined under 10 N.Y.C.R.R. Section 1004.2(a)(8)(xi)
State of The States: Legislation Pending in Three States to Require Workers' Comp Carriers to Pay for Medical Marijuana Treatment
At present, only New Mexico has established a workers' compensation fee schedule for medical marijuana, which establishes the rate carriers are to reimburse injured workers for the cost of purchasing MMJ to treat their work injuries.
Similar laws have been proposed in New Jersey, Maryland, and Hawaii. In Maryland, Senate Bill 854 would require workers' compensation to cover treatment with "medical cannabis." The bill also bars workers' compensation for injuries solely caused by the use of medical cannabis. This bill unanimously passed the Maryland Senate and would go into effect on October 1, 2019, if passed by the House and signed into law.
In New Jersey, Assembly Bill NJ A4505 would require workers' compensation and PIP carriers to provide coverage for costs associated with the medical use of marijuana. This has yet to be voted upon.
And in Hawaii, both the House and Senate are currently considering bills that would require workers' comp carriers to reimburse injured workers for their use of medical cannabis. The reimbursement would be subject to a fee schedule like in New Mexico, SB 1523.
Meanwhile, injured workers in Canada are benefiting from the new provincial Workers' Compensation Board rules providing coverage for MMJ treatment for work injuries in some circumstances. So far, Ontario, New Brunswick, Prince Edward Island, Nova Scotia, and Alberta provinces permit workers to petition to have MMJ covered by workers' compensation.