We now have a JCC level decision addressing Medical Marijuana in the FL WC system.
The claimant injured his back in 2001, and had been in long term pain management for chronic pain. Under the WC claim, his current medications where Lyrica and Tramadol. The claimant advised his pain management doctor he wanted to try medical marijuana instead, so the doctor wrote a referral for him to see a doctor that could provide that treatment (the authorized doctor later testified the referral was medically necessary and causally related). The Employer denied the referral, for, among other reasons, medical marijuana is not payable or reimbursable under the Fla WC Act (per the medical marijuana statute itself).
In his order, the JCC discusses medical necessity in detail, and notes that “some forms of treatment, even if deemed to be medically necessary, are not covered under the Workers’ Compensation Act (e.g., treatment which is experimental or investigative in nature, oral vitamins, nutrient preparations, or dietary supplements and medical food, and chiropractic services in excess of 24 treatments or rendered 12 weeks after the initial service.”
The JCC found that based on the evidence, which consisted of the testimony of the treating doctor and the claimant’s IME, that medical marijuana was medically necessary.
However, the JCC looked at the language of the FL constitutional amendment on medical marijuana and the subsequent statute. Under the plain language of the statute, a FL WC employer or carrier cannot be required to pay for medical marijuana for an injured worker. This includes paying for the initial evaluation with a qualified physician to obtain the certification to obtain medical marijuana. The JCC stated this applies whether the employee asks for the evaluation itself or for reimbursement. The JCC then discusses how other states have come to similar conclusions, although some states have allowed for reimbursement.
The JCC also noted that to rule otherwise would cause the E/C to violate the Federal Controlled Substances Act, and he therefore denied the referral.
The decision was on 4/9/19, and the claimant has 30 days to appeal it. (A JCC decision is not “law” in that no other JCC is bound to follow that ruling. A decision by the 1st District Court of Appeals would be considered “caselaw”.)
Here is the section of the statute the JCC relied upon, and the case is attached.
FL Stat 381.986 (15) APPLICABILITY.–This section does not limit the ability of an employer to establish, continue, or enforce a drug-free workplace program or policy. This section does not require an employer to accommodate the medical use of marijuana in any workplace or any employee working while under the influence of marijuana. This section does not create a cause of action against an employer for wrongful discharge or discrimination. Marijuana, as defined in this section, is not reimbursable under chapter 440.
Morgan Indek | Partner