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Medical marijuana has been paid for under workers compensation claims in six states, and experts say the push will continue despite a dearth of medical evidence supporting cannabis as an effective pain treatment and strong opposition from the insurance industry.
“This sets a dangerous precedent for insurers to pay for it,” said Steve Bennett, Washington-based director of workers compensation programs and associate general counsel for the American Insurance Association.
Experts say the reason there are few clinical studies on the safety or efficacy of marijuana is because cannabis is classified by the U.S. Drug Enforcement Administration as an illegal Schedule I drug alongside cocaine and heroin — a category the federal government classifies as drugs that having no medical use.
“We know anecdotally that it can help, but from a clinical perspective, nobody knows what it does,” said Brian Allen, Salt Lake City-based vice president for government affairs at pharmacy benefit manager OptumRx Inc.
In a recent example, a New Jersey administrative law judge ordered Beaumont, California-based 84 Lumber Co. to reimburse one of its injured workers for medical marijuana prescribed for neuropathic pain in his left hand after an injury suffered while using a power saw at a lumber plant in New Jersey.
The December ruling by the New Jersey Department of Labor and Workforce Development’s Division of Workers’ Compensation showed that the worker had been on a steadily increasing dose of opioids and that his doctors sought medical marijuana as an alternative to reduce his reliance on strong pain medications. According to legal documents, the marijuana had helped wean the worker off opioids.
The “evidence presented in these proceedings show that the petitioner’s trial use of medicinal marijuana has been successful,” the ruling reads.
Jeffrey Adelson, Santa Ana, Californiabased general counsel and managing partner for law firm Adelson, Testan, Brundo, Novell & Jimenez, followed accounts of the New Jersey case and said the judge was “diligent” in ruling that the injured worker’s medical marijuana should be covered by workers comp.
“Ultimately, she weighed the evidence as to the applicability of the New Jersey Medical Marijuana Program (and) determined the injured worker’s condition was … a qualifying factor for the program,” Mr. Adelson said.
Mark Pew, senior vice president at Prium, a Duluth, Georgia-based medical cost management firm, has been following marijuana cases in other states, such as Maine and Connecticut. He said most injured workers fighting for medical marijuana reimbursements, like the New Jersey example, tend to “tell a good story to the judge” and have “multiple doctors determining that marijuana is a better fit (and) that the patient is on a dangerous drug regimen.”
“To judges who have heard about the opioid epidemic, that story is resonating,” Mr. Pew said.
Mr. Allen said this anecdotal approach is what helped voters in now 28 states and Washington approve medical marijuana in recent years in what he referred to as a “populist” attitude toward health care.
Meanwhile, workers comp insurers aren’t eager to cover the drug because it’s unclear whether marijuana use could complicate a claim, experts say.
“It adds risk to the claim, the unknown effects (of marijuana),” Mr. Allen said.
Experts say the other issue is that cannabis remains illegal under federal law, posing the question: Could insurers be held liable for breaking federal law?
“Nobody really knows what the (Trump) administration is going to do,” added Mr. Allen. “The last administration was hands-off on prosecuting” marijuana violations in states that legalized it.
“For insurers, it constitutes a federal crime,” Mr. Bennett said. “I don’t think insurers should be in a position where states are mandating that they violate federal law.”
Some states have taken steps to prevent marijuana payment conflicts. In North Dakota, where voters recently approved medical marijuana, legislators in January overwhelmingly voted 81-9 in favor of a bill that would prohibit North Dakota Workforce Safety & Insurance — the state’s monopoly workers comp insurer — from paying for medical marijuana.
Harvey J. Hanel, Bismarck, North Dakotabased medical services and pharmacy director for North Dakota Workforce Safety & Insurance, said the bill, which would still need the governor’s approval as of late January, is in line with what the state has been trying to do for injured workers since it introduced a prescription drug formulary: provide evidence-based care.
“When I look at studies on medical marijuana, they are not quality-controlled clinical studies. Additional study is needed … We think it is prudent for us to hold off (on paying for medical marijuana) at this time,” Mr. Hanel said.
The steady march away from opioid prescribing in workers compensation will continue into 2017, according to industry experts who call this ongoing shift in treating pain for injured workers a necessary, but complicated journey for all parties involved.