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Medical marijuana challenges workers comp payers

Medical marijuana prescription

PHILADELPHIA — Workers compensation payers should face up to the inevitability that they will have to pay for medical marijuana pain treatments for injured workers despite any concerns they have, experts say.

Chief among those apprehensions is pot’s effects on the injured workers themselves, who may become “guinea pigs” in an arena that has little historic data for medical use, as well as how to price the drug, they add.

“My concerns with medical marijuana are the unregulation of it and the fact that the content isn’t necessarily consistent,” Niki Ingram, Philadelphia-based director of the workers compensation department of Marshall Dennehey Warner Coleman & Goggin P.C., said at the Philly I-Day conference in Philadelphia on Tuesday. “There are studies that show that THC can create psychosis in individuals who are prone to anxiety. I wonder if we’re changing one set of problems for another. My other concern is how do you judge impairment.”

“That said, I think it’s coming, so we will probably be paying for that soon,” she added.

Samuel Marshall, president and CEO of the trade association Insurance Federation of Pennsylvania, said those were “valid concerns,” but one of the key challenges is addressing who in the workers compensation industry profits from such efforts and who is adversely impacted.

“The injured worker is a guinea pig” when it comes to alternative treatments such as medical marijuana, he said. “It’s not getting them any better. It’s not improving the quality of their life. It’s not getting them back to work sooner or becoming a productive member of society. As advocates in the area, we should focus a little bit more not on who is profiting improperly, but who is getting hurt by it.”

Marijuana is a Schedule 1 drug under federal law, meaning that it has no accepted medical use, has a lack of accepted safety for use under medical supervision and has a high potential for abuse. But Schedule 2 drugs that have a high potential for abuse such as Adderall, hydrocodone, morphine and OxyContin are all allowed under federal law, which is “interesting and food for thought” amidst the deadly opioids epidemic in the United States, said John Kutner, attorney at law with Weber Gallagher Simpson Stapleton Fires & Newby LLP in Bedminster, New Jersey.

“Since 1970, marijuana has been a Schedule 1 drug and as a result there’s been very little ability for any researchers to gain access to the drug to do research on it to really determine its medical efficacy,” he said.

Workers compensation payers who are paying for medical marijuana are reimbursing injured workers for the purchases rather than covering for it directly, Mr. Kutner said.

“In every situation it’s reimburse, because they think, I guess, that that will provide some level of insulation for the carrier or the self-insured from a federal prosecution because marijuana is a Schedule 1 drug,” he said. “I can tell you in New Jersey from firsthand experience, a lot of carriers decided because of a business decision to … reimburse for the cost as opposed to paying for the opioids. Marijuana seems to be a better alternative, but … you probably want a judge ordering you to pay for it before you go forward because that may provide some level of insulation if, god forbid, the federal government ever comes after you — which I think is probably unlikely at this point, but you never know.”

“Marijuana is going to get rescheduled,” said Sandy Shtab, assistant vice president of advocacy and compliance for Tampa, Florida-based Healthesystems LLC. “It’s not going away. I think the best thing that can happen in the insurance industry around marijuana is that when it is rescheduled, it can then be studied and carriers will have more certainty around what they should and should not pay for.”

Insurers do not want to pay for medical marijuana, in part because of the lack of standardization around dosages, she said. “Until there is dosing that is standardized and studied, carriers have no certainty around what they should and should not pay for,” Ms. Shtab said.

Anthony Natale, Philadelphia-based shareholder with Marshall Dennehey, said his key question related to the cost of medical marijuana because “if it’s going to be as costly as other forms of medication that are out there, then I know I’m going to be again in the trenches fighting over it.”

“There is no unit price of the drug,” said Ray Tan, assistance vice president of medical management, pharmacy, for Woodland Hills, California-based Zenith Insurance Co. “What concerns me the most is that although currently it might seem as if the cost may go down, what becomes the standard? How do we know the invoices won’t be increased over time? It could cost $20 today, $2,000 next year.”

“I’m playing two different sides,” he continued. “I have responsibility to an injured worker to treat their pain, but also I have the responsibility … to who’s buying that policy and who’s being hurt. It’s not just the injured worker. To me, it’s also the employer who can now not reinvest that money in their employees, in their business. It was meant to protect the employer and injured worker, and now it’s becoming the gift that keeps on giving.”



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