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Langham: Medical Pot Evaluation

  • State: Florida
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The Florida 1st District Court of Appeal rendered Jones v. Grace Healthcare on Wednesday. This is the first interpretation dealing with the complex topic of marijuana in Florida workers' compensation.

Judge David Langham

Judge David Langham

With it, Florida is among the states that do not include pot in the universe of “medically necessary” care and treatment following a work injury. The decision is of interest in the general sense but offers some legal reminders more pertinent to the lawyers.

The court reminds of the Tipsy Coachman, the supremacy clause and statutory construction. This is a panel decision (three judges), reviewing the judge of compensation claims' denial of a referral for evaluation regarding marijuana.

There appears to be a great deal of public confusion regarding pot. The words "legal" and "legalized" have been tossed about in various media reports. More than one employee has found her/his world impacted by a mistaken belief that pot is legal in Florida. Repeatedly, I have striven to remind that pot is not legal in a single one of the United States. Unfortunately, a great many pundits insist on using that "legal" label, and the public seems misled by that word.

Most recently, Decriminalizing Marijuana recounts the woes of two disappointed teachers whose pot habits led to employment issues. That post also recounts the Florida Supreme Court's interpretation of a proposed constitutional amendment regarding further decriminalization of pot in Florida and centers in large part on the seemingly simple foundation of federal law. So Federal Law Matters in Colorado recounts the earliest bellwether on employment actions in Coates v. Dish Network.

In workers' compensation, courts across the country have reached generally consistent results regarding marijuana. See Federal Law Matters in Maine Also. However, some states have ordered workers' compensation payers (employers or carriers) to reimburse injured workers for their pot. New Mexico reached that conclusion perhaps first.

Of note, even I poorly use the phrase "legalize medical marijuana" in that post. It is a lazy reference and an unfortunate one.

New Jersey was in the news recently with its Supreme Court's order requiring reimbursement for medical pot in a workers' compensation case. Notably, that decision also addresses the Controlled Substances Act (CSA) that is discussed by the court in Jones. 

Interestingly, the Florida court in Jones was not confronted with a claim for marijuana per se, nor even for reimbursement. The injured worker there instead sought “referral for medical marijuana.” Thus, there is a subtle distinction suggested. However, the court was not persuaded. It described the pertinent state and federal law on the subject of pot and concluded that "a referral to a physician authorized to prescribe medical marijuana, including even just for an evaluation of whether the employee is a good candidate for marijuana treatment, could not — under any circumstances — be 'medically necessary.'”

This is a critical point. The court reminded that the employer/carrier's responsibility in Florida is to provide an injured worker with "remedial treatment, care and attendance" that is "medically necessary.”

The workers' compensation law provides a benefit and a burden to both employers and employees. Medical care is a major component of workers' compensation, a benefit to employees and a burden to employers. Thus, in any claim for medical care, the "medical necessity" may potentially play a prominent role as a factual dispute (experts may have differing opinions) but also as a legal dispute.

Whether care is "medically necessary" is often the topic of medical opinions in workers' compensation. It is common for trials to include records and testimony that express conclusions regarding "medical necessity."

In Jones, two physicians "concluded that the referral for a medical marijuana evaluation was medically necessary." There was no factual dispute, and thus, the factual setting was presented for the court to apply the law.

Critically, our laws are the result of our republican process. Through our elected representatives, the will of the people has seemingly been expressed, twofold. First, Congress has made it illegal to possess or use marijuana, pursuant to federal law. Second, it has forbidden federal law enforcement from enforcing that law (Rohrabacher-Farr Amendment). Some will perhaps understand why a modicum of confusion persists.

The Jones court noted that the trial judge denied the claim for a marijuana evaluation, in part, upon "Section 381.986(15)(f), Florida Statutes, which provides '[m]arijuana ... is not reimbursable under Chapter 440.'” The injured worker argued that this statute should not apply because he "was not seeking payment for medical marijuana," but only "an evaluation by a physician who could write a certification" to facilitate access to the illegal drug.

The court explained that to be "medically necessary," care must meet criteria. It noted "that the only reason for the referral was to facilitate Jones’ effort to" obtain the illegal drug. The court concluded "[t]hat fact proves fatal to Jones’ claim." The court held that the distinction between evaluation and payment for pot is "a false distinction," which it rejected. Would the outcome be different if the claim were for an evaluation regarding heroin, LSD or quaaludes? In a word, no, each is an illegal drug (on Schedule I, with pot). 

The described care, the pot, “is not reimbursable under Chapter 440.” The court explained that  "[t]his statutory proscription makes the treatment objective of the evaluation — acquisition of marijuana — indisputably not reimbursable." 

This is interesting, as it illustrates both statutory interpretation (plain meaning) and the oft-forgotten premise that not all of Florida workers' compensation is found in Chapter 440. In the end, because the ultimate goal of the evaluation is thus not medically necessary, "there can be no medical necessity in an evaluation tied to that treatment."

Beyond the state law prohibition on compensability for pot, the court noted that marijuana is illegal. It recites the Controlled Substances Act and its classification of pot a "Schedule I substance" since 1970.

Many struggle with this, but pot is illegal. It “has no currently accepted medical use in treatment in the United States.” Possession of pot "is a federal crime everywhere in the United States." The court reminded that Florida "permit(s) the purchase, possession and use of marijuana for medical purposes," but "federal law must prevail in circumstances such as this."

The court returned to its obligation under the supremacy clause of the U.S. Constitution (Article VI), noting "[w]e are bound by the United States Constitution to apply the CSA over a provision in the Florida Constitution to the contrary." One might conclude federal law matters in Florida.

Once again, the Tipsy Coachman is discussed by the court. Interestingly, the concept stems from a lengthy 18th-century poem "Retaliation." In rendering its decision, the Georgia Supreme Court used the poem to explain its analysis in Lee v. Porter (1879). A century later, the Florida Supreme Court adopted the analysis in Carraway v. Armour & Co. (1963). This is a now venerated and foundational part of Florida law. 

And the court noted that in Jones its analysis was different than the trial judge's, but the paths led to the same conclusion. Stated differently, "[T]he ‘tipsy coachman’ doctrine allows an appellate court to affirm a trial court that ‘reaches the right result, but for the wrong reasons’ so long as ‘there is any basis which would support the judgment in the record.’”

Those who consider seeking appellate review are wise to remember the coachman. Though a trial judge's conclusions might be deemed unconvincing, an appellate court may affirm the outcome anyway.

It is possible that Jones v. Grace Healthcare may not be the last word on pot in Florida workers' compensation. Appellate decisions are always applications of law to particular facts and circumstances with the potential that different facts or arguments might yield a different analysis or outcome. And there remains an outside potential that Congress might one day move beyond its current dichotomous "don't legalize but don't enforce" confusion.

However, today, in this small corner of the world, medical pot is not compensable in workers' compensation, and neither are evaluations for the purpose of obtaining this illegal drug.

David Langham is deputy chief judge of the Florida Office of Judges of Compensation Claims. This column is reprinted, with his permission, from his Florida Workers' Comp Adjudication blog.

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