On December 1, 2017, the State of Maryland joined 29 other states and the District of Columbia, allowing the sale of medical marijuana to residents in pain. The new law allows for thousands of Marylanders to seek a method of treatment previously unavailable to residents of the state. Medical marijuana is now available in Maryland for any condition that is severe in which other medical treatments have been ineffective, and if the symptoms “reasonably can be expected to be relieved” by marijuana. Patients with a chronic or debilitating medical condition that causes severe appetite loss, severe or chronic pain, severe nausea, seizures or severe muscle spasms also can have access, as well as people with glaucoma or post-traumatic stress disorder.
Can an injured worker in Maryland receive and be compensated for medical marijuana treatment?
No one in Maryland has a definitive answer to this yet. Workers Compensation law in Maryland provides that if a covered employee has suffered an accidental personal injury, compensable hernia, or occupational disease, the employer or its insurer shall provide to the covered employee medical, surgical, or other attendance treatment; hospital and nursing services; medicine; crutches and other apparatus; and artificial arms, feet, hands, and legs and other prosthetic appliances. Md. Labor and Employment Code Ann. §9-660(a)(1-5). Some workers who have experienced a compensable injury under Workers Compensation law may prefer to seek treatment with a medical marijuana dispensary in Maryland. This is not uncommon given the documented effects of cannabis and cannabinoid treatments. Now that medical marijuana is legal, the question is, will the Maryland Workers Compensation Commission approve treatment that includes medical marijuana consumption?
It is too early to refer to Maryland case law for answers to this question, but other jurisdictions have ruled on whether or not medical marijuana is a compensable form of treatment. While Maryland might ultimately decide not to follow other jurisdictions, it will certainly carefully review the conclusions of sister states.
In one of the few cases on the subject, the New Mexico Court of Appeals held that marijuana may be a “reasonable and necessary” medical treatment for a workplace injury, and if a treatment is reasonable and necessary, the employer and its insurer must pay the bill. See Vialpando v. Ben’s Automotive Services, 2014-NMCA-084, 331 P.3d 975 (N.M. Ct. App.), cert. denied, 331 P.3d 924 (N.M. 2014); see also Lewis v. American Gen. Media, 355 P.3d 850, 856-58 (N.M. App. 2015) (rejecting challenge to reimbursement for medical marijuana under Workers’ Compensation Act based on federal preemption); cf. Maez v. Riley Indus., 347 P.3d 732, 735-37 (N.M. App. 2015) (finding sufficient evidence that medical marijuana was medically necessary).
The New Mexico Court of Appeals found that New Mexico’s Workers’ Compensation Act does not prohibit a healthcare provider from authorizing medical marijuana treatment for an injured worker in the course of the treatment for his workplace injury. According to New Mexico’s highest state court, as long as the treatment is “reasonable and necessary”, and approved by a workers’ compensation judge, the employer is responsible for paying for it under New Mexico law. Additionally, the Court found that federal law does not preclude repayment for medical marijuana under New Mexico’s Workers’ Compensation Act.
Outside of New Mexico, administrative actions taken in California and Minnesota have also authorized reimbursement for medical marijuana under workers’ compensation law. In Cockrell v. Farmers Insurance and Liberty Mutual Insurance Company, 2012 Cal. Wrk. Comp. P.D. LEXIS 456, a California workers’ compensation court held that the use of medical marijuana was reasonable and necessary under the state workers’ comp law, and that the Compassionate Use Act of 1996, which legalized medical marijuana in California, did not bar reimbursement. In Minnesota, regulations promulgated by the Department of Labor and Industry (“DLI”) address the criteria for treatment of the most common work-related injuries, and also prohibits the use of “illegal substances” as part of workplace injury treatment. In July 2015, the DLI issued new rules that redefine “illegal substance” and specifically exclude from the definition medical marijuana prescribed under state law. Therefore, medical marijuana is a permissible and reimbursable form of medical treatment for workers’ compensation claims in Minnesota.
Surely this issue will be litigated within the Workers Compensation Commission and in Maryland’s appellate courts in the months and years to come. How Workers Compensation Commissioners and state court judges decide to rule on the compensability of medical marijuana treatment for injured workers are decisions that will undoubtedly draw interest from employers, insurers, medical providers, and workers across the state. Will the Workers Compensation Commission in Maryland choose to adopt this “reasonable and necessary” standard applied in other jurisdictions? Or will Maryland set a new standard for itself on the issue? Will the Maryland legislature decide to provide a legislative answer to this question by allowing (or prohibiting) the Maryland Workers Compensation Commission to authorize medical marijuana as treatment? What effect would allowing medical marijuana treatment in workers compensation cases have on the vocational rehabilitation process? Are the dispensaries and medical marijuana providers operating and set to operate in the state equipped to address the needs of the workers’ compensation community? The Workers Compensation attorneys at JGL are keeping an eye on this and other cutting edge developments.