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Recent litigation and proposed legislation in some eastern states may have opened the door to more widespread use of cannabis to treat injured workers, experts say.
Cases heard in courts in New York, Massachusetts, Maine, New Jersey and New Hampshire have helped progress cannabis as medical treatment in the eyes of the law and insurance, they say.
“For a long time, workers compensation did not consider medical marijuana a treatment option. But in the last few years, we’ve seen a lot of litigation and the interesting thing about these cases is they all come back to the issue of federal preemption,” said Jeremy Buchalski, a New York-based partner at Wilson Elser Moskowitz Edelman & Dicker LLP.
He was speaking at the Business Insurance 2021 Virtual Cannabis & Hemp Conference last week.
While cannabis remains regulated federally as a schedule 1 substance, which means it is determined to have no medical value, state courts have been deciding whether it can be reimbursed as medical treatment in workers compensation cases.
In April, a New York appellate court ruled in Matter of Quigley v. Village of East Aurora that a workers comp insurer must reimburse a disabled police officer for the cost of his medical marijuana.
New York has continued to be a leader on cannabis reform throughout the year, announcing an updated drug formulary and the proposed launch of a web-based claims portal, OnBoard. The new formulary requests medical marijuana be a prior authorization medication, said Ronald Mazariegos, claim executive vendor manager at Arrowpoint Capital.
“This legitimizes cannabis as medicine, because what the New York workers comp board is saying is that it needs to go through the same pre-authorization process as spinal surgery, as oxycontin, as physical therapy, treating it like any other kind of medicine,” said Mark Pew, principal of The RxProfessor LLC. “It's the only state that has gone that far, and I think this is going to be a model that other states are going to look at.”
New York, New Jersey and Maryland have pending legislation that would mandate workers compensation insurers treat medical marijuana as a prescription and reimburse the injured worker.
“From our perspective it's hard to measure or to gain information with regard to what medication is being filled,” Mr. Mazariegos said. “Hopefully, one day we'll see a better bridge of understanding between the payer and the physician in order to get the recommended and sought-after treatment that we all want.”
This year also saw the effect of recent federal legislation come to fruition, Mr. Buchalski said. The 2018 Farm Bill “essentially” legalized hemp, allowing the CBD market to explode onto the shelves.
CBD is also gaining traction as an alternative therapy in pain management, said Dr. Carlos Giron, founder of the Pain Institute of Georgia in Macon, who primarily treats injured workers. CBD has been “a perfect fit,” he said.
“It became part of my toolkit to reduce opioids, so much so that in the past seven to eight years now, we're over 65% opioid reduction in my practice,” Dr. Giron said.
CBD is not covered by workers compensation insurance.
“Nonetheless, patients have come out of pocket to be able to do that for themselves and found some very good results,” Dr. Giron said, “having done so to the benefit of the workers comp system, to the benefit of society, and improving their functional status.”