Workers' Comp Law

The Defense View

Employers still don’t have to pay for medical marijuana, even if it is reasonable and necessary treatment.

DOL finds that injured worker’s medical marijuana use for pain relief is reasonable and necessary medical treatment for his work injury, but that doesn’t meant the employer has to pay for it.  

The underlying facts in Michael Hall v. Safelite Group, Inc.  were not in dispute: claimant had a work related left elbow injury in 2014 that evolved into Complex Regional Pain Syndrome.  Claimant became certified to use medical marijuana in his home state of New Hampshire, and testified that he generally smoked between 4 to 6 joints per day.  His primary physicians testified in support of the reasonableness of this medical treatment, and the benefits over opioids.  The Department agreed that the use of medical marijuana was reasonable medical treatment, notwithstanding the limited research as to its efficacy.   The more challenging question was the claimant’s request for an Order that the employer/insurer pay for it.  (It was estimated that claimant spent between $190-$300 every four to six weeks).  There is a very thorough discussion in this Decision about the apparent conflict between federal law and the 29 states in the country that have legalized marijuana for medicinal use (and in Vermont, for recreational use as well).  The crux of it is that an employer or insurance carrier at reimburses an injured worker for medical marijuana can in theory be subject to federal prosecution under current law and Department of Justice policies notwithstanding that the practice is permissive under state law.   Some states have ordered employers/insurance carriers to do it anyway.   But Vermont’s medical marijuana statute precludes any order compelling an employer or insurance company to pay for medicinal marijuana, and the Department’s decision turned on that statute.   It seems likely, given the current opioid crisis in Vermont and the surrounding states, that legislative changes will come, whether or not more research is done.   Also, given the relative costs and risks, it may just be that paying for medical marijuana in certain cases makes far more sense than paying for opioids.  But what is clear for now is that no  change in policy or law is going to come by way of a Commissioner ruling; the statute is controlling this one, and for now, this State’s employers and insurers will not be required to pay for medical marijuana, no matter how reasonable or necessary it might be deemed to be. 

Oliver Abbott