A Recent First DCA Ruling May Have Some Injured Workers “Up in Smoke”…Or, will it?, by Tracie Childers, Associate, Orlando

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Orlando Florida has seen a rise in residents with medical marijuana cards since the legalization of marijuana for medical use in 2016. Not surprisingly, the legalization of medical marijuana at the state level is now raising questions of its use and the doctors that prescribe it under the Florida workers’ compensation judicial system.

According to the Florida Department of Health’s, Office of Medical Marijuana Use (OMMU), medical marijuana may only be purchased from a licensed medical marijuana treatment center and it is the responsibility of a “qualified physician” to diagnose patients with a qualifying condition. The full extent of the law is set forth in Florida’s medical use of marijuana statute, §381.986 Fla. Stat. (2018).

Of course, it was only a matter of time before authorized medical providers under workers’ compensation started writing referrals for injured workers to be treated by a physician qualified to prescribe medical marijuana. If you are wondering what this means for Carriers, the First DCA recently addressed this very question in Jones v. Grace Healthcare, 320 So. 3d 191 (Fla. 1st DCA 2021). Specifically, the Court evaluated whether a referral to a physician licensed to prescribe medical marijuana is reimbursable under chapter 440 of the Florida Statutes.

§381.986 (15)(f) Fla. Stat. (2018) states that medical marijuana itself is not reimbursable under chapter 440. However, the issue presented in Jones was whether an evaluation from a qualified physician licensed to prescribe the medical marijuana is reimbursable.

According to the facts of the case, Jones was diagnosed with chronic pain syndrome following a back injury in 2001 and sought to be evaluated by a qualified physician authorized to prescribe medical marijuana as an alternative to the oral pain medications he was prescribed. Jones alleged he was experiencing side effects from the pain medications. Jones’ authorized medical provider – not in a position to prescribe medical marijuana – wrote Jones a referral for an evaluation under a licensed medical marijuana physician pursuant to Florida’s medical use of marijuana statute.

At the lower JCC level, Jones’ authorized medical provider and in Independent medical examiner, both testified at the hearing in front of the JCC that the referral was medically necessary and causally related to the workplace accident, as defined by §440.13(2)(a), Fla. Stat. (2020). The final JCC Order concluded that while medical marijuana is a medically necessary benefit to help Jones, the language of §381.986(15)(f) Fla. Stat. (2018), expressly states “[m]arijuana, as defined by this section, is not reimbursable under chapter 440”. Id at 192. The JCC ultimately determined the statute prohibited reimbursement for evaluations by a qualified physician to obtain a prescription for medical marijuana.

Jones appealed this decision, asserting he was not seeking payment for the actual medical marijuana, but instead, only authorization for the referral to be evaluated by a qualified physician licensed to prescribe it.

On appeal, the First DCA agreed with the JCC, holding the Carrier is not responsible for reimbursement for a referral to a qualified prescriber. Only the First DCA took a slightly different approach. In its decision, the Court held that before a medical service can be considered medically necessary, it must first be tied to treatment for the injury and be consistent with the location of service, the level of care provided, and applicable practice parameters in accordance with §440.13(1)(m), Fla. Stat. (2020). Furthermore, the court opined the treatment should be widely accepted among practicing health care providers, based on scientific criteria and determined to be reasonably safe. Id at 193. Therefore, the First DCA stated, if the referral is in fact medically necessary, there is no dispute the only reason for the referral was to facilitate Jones’ effort to treat with marijuana.

For this reason, the First DCA concluded, “an evaluation by a physician able to write a certification for Jones to access marijuana treatment could not be medically necessary because as a matter of law, the marijuana itself is neither reimbursable nor medically necessary. Id.

Furthermore, the First DCA unequivocally opined that even though Florida permits the use of medical marijuana, Federal Law still labels marijuana a schedule I substance that is unsafe and has no medical treatment. Moreover, the mere possession of marijuana is a federal crime in the United States. Accordingly, an evaluation for the sole purpose of facilitation of marijuana treatment that has no accepted, safe, medical use, cannot be “under any circumstance”, medically necessary. Id. At 194.

The ruling in Jones lays out a clear, concise and unambiguous answer to whether the Carrier is responsible for a referral to a medical provider authorized to prescribe medical marijuana. So, for the time being, not only will injured workers no be getting medical marijuana treatment paid for under workers’ compensation, they also do not get a free pass to obtain their medical marijuana card.

An important thing to take away from this case is that federal law controls whenever there is a direct conflict between federal and state laws. In the future, should the federal government decriminalize marijuana, the First DCA may very well change its stance regarding the use of medical marijuana for treatment of work related injuries. For now though, the appropriate response is to “deny the high”.

Tracie Childers | Orlando Office