Medical Marijuana Update for Georgia Workers’ Compensation Claims

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By: Zal Linder, Partner, and Ashley Rudolph, Associate, Atlanta

With the growing trend of more and more states allowing for the use of marijuana, both medicinal and recreational, it is worth taking a closer look at the current status of the law on this issue. Under O.C.G.A. § 16-12-191, Georgia only allows the use of medical marijuana in the form of cannabis oils with below 5% THC and at least an equal amount of CDB, and it can only be prescribed for end stage cancer, Alzheimer’s, multiple sclerosis, seizure disorders, Crohn’s, mitochondrial disease, Parkinson’s, and Sickle Cell disease.

While Georgia has not had a case dealing with a claim addressing whether medical marijuana is reimbursable, five states (New Mexico, Maine, Minnesota, Connecticut, and Massachusetts) have permitted reimbursement for legal medical cannabis.

In Vialpando v. Ben’s Auto. Servs., 2014 N.M. App. LEXIS 50, 1-2 (N.M. Ct. App. May 19, 2014), the Workers’ Compensation Appeals Board agreed with the administrative law judge in ordering the reimbursement for medical marijuana to treat the injured worker’s injury despite the employer’s arguments of federal policy that marijuana was illegal.  By contrast, in Cockrell v. Farmers Insurance and Liberty Mutual Insurance Company, 2012 Cal. Wrk. Comp. P.D. LEXIS 456, the California Workers’ Compensation Appeals Board denied the reimbursement for self-procured medically recommended marijuana citing that the Health and Safety Code does not require the health insurance provider to be liable for medical use of marijuana. Whether or not an insurer is required to reimburse for medical marijuana depends greatly on the state legislation.

In Georgia, workers’ compensation benefits will be denied pursuant to O.C.G.A. § 34-9-17, if the employee: “(1) had ingested alcohol or marijuana or had improperly ingested a controlled substance; (2) so that the employee was intoxicated; (3) at the time of the accident; and, (4) the accident was proximately caused by the employee’s intoxication.” In light of this available defense, it leaves open the question of how a positive drug test from medical marijuana will be interpreted if this provision is applied.

Another important issue to remember is the federal law conflict.  Marijuana remains illegal from a federal standpoint.  Labor law in the United States is not reserved for the states.  The federal government, through the Fair Labor Standards Act, along with other laws and agency regulations, sets bounds and rules for employment. An employer must maintain a working environment that is consistent with both state and federal laws.  Furthermore, given the statutory language on medical marijuana, it does not appear to give the claimant protection in an employment setting. Therefore, it can be argued that the intoxication defense will still apply.

At this point, we do not have any court decisions in Georgia addressing this issue.  Given the extremely narrow definition of permissible medical marijuana, it is likely that there will be little impact on the intoxication defense. Nonetheless, it is our firm’s position that employer/insurers continue to deny any requests for medical marijuana treatment in workers’ compensation claims. Further, we also recommend that when there is a valid intoxication defense involving medical marijuana, the employer/insurer should continue to deny claims for this reason.