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Morgan’s Tip of the Week – Marijuana Status

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Greetings,

A few of you have asked for a handout or summary of my talk with Dr. Frohwein at the WCI convention on Medical Marijuana, so I thought I would pass on a few takeaways.  (If you’d like the doctor and I to come present this CEU at your office, please let me know).

  • 30 states plus DC have allowed Medical Marijuana, but the Federal Gov’t still has it listed as a Schedule 1 drug under the Controlled Substance Act.   That means per the US Gov’t there is no medical purpose for it, and marijuana remains illegal. 9 states plus DC have allowed recreational marijuana.
  • I have not heard of a carrier in Florida that has provided medical marijuana to a claimant yet.  There are no JCC decisions ordering a carrier to pay or reimburse a claimant. 
  • The Fla Medical Marijuana statute (381.986 (15)) specifically says it is not reimbursable under Chapter 440 (WC statute).
  • In 7 of the 30 states permitting medical use (CT, MN, NM, NJ, NY, MA, DE), the courts have ordered the WC carriers to reimburse WC claimants for purchasing medical marijuana that a treating doctor has recommended.
  • The Fla statute also states that Medical Marijuana may not be in a smokeable form, but in May a Circuit judge ruled that was unconstitutional because it conflicted with the intent of  the Ballot initiative/Fla constitutional amendment (there is a stay on smoking pending an appeal).   I imagine we will see the same basis for a challenge on the ban on reimbursement in WC.
  • Even though marijuana stays in your system for 30 days, if a  claimant tests positive for it post-accident, it is presumed he is intoxicated/impaired.   The Gustafson case says the presumption applies to marijuana, and the 1st DCA just reiterated this in June in Brinson.  The WC statute says specifically the claimant saying I wasn’t high (or I smoked 2 weeks ago), is not evidence to rebut the presumption (440.09(7)(c)).  The only way the claimant gets out of it is to show that accident basically would have happened despite the fact he was high.  Ex- passenger in a car.
  • Do we get the intoxication defense if the claimant is using Medical Marijuana from their family doctor?   We don’t know yet, but most carriers will likely take an aggressive stance on this issue.

Sincerely,
Morgan Indek | Partner