Comp claims tangled by pot laws

Managing workers compensation claims that involve the use of medical marijuana as an injury treatment protocol is so novel that employers and insurers remain confused over how to handle the claims. 

Issues of concern include dosing, coverage and reimbursement for marijuana, which remains illegal at the federal level. 

Industry experts say there’s not enough information on the drug as it pertains to such issues as pain management, weaning and return to work — issues that have also plagued opioid prescribing in claims management for more than a decade. 

“It’s a mess, it’s a quandary,” said Brian Allen, Salt Lake City-based vice president of government affairs for the pharmacy solutions team at Enlyte Group LLC subsidiary Mitchell International Inc.

While it is legal in 40 states, Mr. Allen said New Mexico is the only state with a comp fee schedule for medical marijuana. 

Nikki Wilson, senior director of clinical pharmacy services for Mitchell, said the comp industry appears to be focused on whether, and how, to cover or reimburse for the drug before its treatment application is even fully tested. 

“We’re almost putting the cart before the horse a little bit where we’ve got regulatory and legal jumping ahead of clinical, so we’re trying to play catchup in a lot of ways to capture this,” said Ms. Wilson. 

Adding to the confusion is a legal landscape that is a patchwork of state laws and rulings; some state courts have ruled workers comp payers must either cover or reimburse medical marijuana used by injured workers, but some laws prohibit or don’t require reimbursement. 

Six states allow for reimbursement of comp claims for medical marijuana while seven expressly prohibit reimbursements (see chart).

Employers and insurers have expressed concerns over having to pay for a drug that is federally illegal.

Barak Kassutto, a comp attorney with the Philadelphia law firm Morgan & Akins who represents employers and insurers, took issue with a March Pennsylvania appeals court ruling that determined insurers are not prohibited from reimbursing injured workers for medical marijuana. 

“I think the issue here is the concern that the court is compelling employers and insurers to violate federal law,” he said. 

As a result of the ruling, insurers must reimburse injured workers for the drug in cases where the treatment is deemed necessary for recovery, according to Abington, Pennsylvania-based claimants attorney Jenifer Kaufman, the solo practitioner who won the binding Commonwealth Court ruling in Fegley v. WCAB. 

Bradley Andreen, a Pittsburgh-based comp defense attorney with the firm Rulis & Bochicchio LLC, said the issue may affect comp settlements, especially those with a Medicare set-aside. Because marijuana is still illegal at the federal level, Medicare won’t pay for the drug, which could place prospective settlements in limbo, he said (see related story). 

The issue is further complicated by Pennsylvania’s medical marijuana law, which says comp insurers are not required to “cover” the drug but says nothing about prohibiting reimbursement. 

“If there’s no coverage for something, how is the carrier or the employer supposed to reimburse it,” Mr. Andreen said. “That’s part of the whole principle of insurance. If you don’t have coverage for something, then they don’t pay for it. You don’t do something indirectly that you don’t do directly.”

“They’re using it to reduce their pain, not to get high,” claimants attorney Ms. Kaufman said of injured workers and marijuana. 

Issues such as dosing and medical necessity are often a concern with drugs in general, she said. 

“I think this issue is common with all medications,” she said. “There’s still going to be a learning curve for a lot of people in the bar and for insurance companies.”

And employers still can challenge the drug’s usage in comp by filing for utilization reviews, Ms. Kaufman said. 

Utilization reviews for medical marijuana might be difficult, Mr. Andreen said. In Pennsylvania, for example, there is no “prescribing” doctor, and the person who is giving out the medication is a marijuana dispensary “salesperson.” 

“There’s no medical doctor peer for the claimant or the (dispensary) salesperson to do a utilization review,” Mr. Andreen said. “It’s basically the claimant deciding themselves what their medicines should be. How do you subject that to a utilization review?” 

Del Doherty, owner of Houston-based pharmacy benefit manager ProdigyRX, said providing reimbursements for a federally illegal substance like marijuana raises numerous concerns. 

“For this, what is the usual and customary price that you charge?” he asked. “Will you only reimburse for edibles or also for vape and smokeable products? There’s no standard for reimbursement. Just saying that you’ve got to pay for it is one thing. Now, you’re just believing what people are showing on the receipt.”

Louise Esola contributed to this report.