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Workers' Compensation

Medical Marijuana in Workers’ Comp – What We Know

Medical Marijuana in Workers’ Comp – What We Know
Co-Authored By Patrick A. Johnson Partner, Lafayette

Recently, Louisiana took its first tentative steps into the world of medical marijuana. As its use in Louisiana is so new, the number of questions far outstrip the available answers. However, there are a few answers available to some of the more common questions. This post is offered to provide an overview of the information which we currently possess, and we hope that it will help answer some of your questions. Needless to say, we will be available to offer our opinion as to other situations not currently covered by the law.
 
Under Louisiana law, a licensed physician in good standing with the Louisiana State Board of Medical Examiners may recommend the use of certain forms of medical marijuana to treat patients who have been clinically diagnosed with a “debilitating medical condition”. However, such conditions are strictly limited to the list of conditions enumerated in La. R.S. 40:1046(A)(2)(a). Of particular importance within the context of workers’ compensation are

  1. intractable pain,
  2. severe muscle spasms, and
  3. post-traumatic stress disorder.

It is likely that we will see a relatively large increase in prescriptions related to these diagnoses in the near future. We also anticipate that a push will most certainly be made to expand the reach of these three categories, as conditions such as “severe muscle spasms” and “intractable pain” are very general and lend themselves to a broad application.
 
It is also important to note that while the same statute indisputably provides that a workers’ compensation employer/insurer is not obligated and cannot be ordered to pay for medical marijuana. And, as you would expect, there is case law which holds otherwise. For instance, in Creole Steel, Inc. v. Stewart, 2011-1285 (La. App. 3 Cir. 3/7/12), 86 So. 3d 757, 760, the Louisiana Third Circuit Court of Appeal considered a case in which an injured employee’s pain management physician-prescribed Marinol, a prescription form of marijuana, for longer-lasting pain relief. Ultimately, the court held that the employer/insurer was required to reimburse the claimant for the amount he used to purchase the medication as it was a necessary medical expense. Id. We suspect that this case will be heavily cited in the near future; although, a review of the case easily reveals methods by which we should be able to limit its application.
 
Further, while generally no compensation is allowed, when an injury is found to have been caused by the injured employee’s intoxication, the legalization of medical marijuana makes establishing a viable intoxication defense increasingly difficult. According to the Third Circuit’s recent decision in Vaughn v. Dis-Tran Steel, 2017-689 (La. App. 3 Cir. 2/7/18), 239 So.3d 893, the employer/insurer is not entitled to a presumption of intoxication, when the employee possesses a valid prescription for the drug detected in the post-accident drug screen. Absent the presumption, the burden rests on the employer/insurer to prove that the claimant was impaired [i.e. intoxicated] at the time of the accident. Only then would then burden shift to the employee to prove that the intoxication was not a contributing cause of the accident and the resulting injury. To date, this has not been considered in the context of medical marijuana, but we will continue to monitor to issue as the case law develops.
 
Again, if one takes the time to ponder where this issue may go, the situations in which the use of medical marijuana will present problems will be legion, and for now, the questions easily outnumber the answers. We will continue to monitor these issues, and we will comment as issues are clarified. If you have any specific questions, which you would like us to address in more detail, please contact us directly.

Allen & Gooch is providing this legal update for informational purposes only. This article should not be construed as legal advice or a legal opinion as to any specific facts or circumstances. You should consult your own attorney concerning your particular situation and any specific legal questions you may have.