Greetings, there was a recent case regarding the FL WC intoxication defense and medical marijuana,  Orlando World Center Marriott v. Gonzalez Chanza, (PCA) 1D0023-1079 (Fla. 1^st DCA 2024), OJCC 22-013883NPP.

The JCC found that the claimant’s use of legally obtained medical marijuana did not warrant a denial of the claim under the intoxication defense.   Summary of the case and nuances below.   We have an updated CEU available live or via webinar on this topic, please let me know if you’d like to schedule it for your company.

First here is a quick update on the Federal Government moving marijuana from a Schedule I drug to a Schedule III drug, allowing for medical use.  

In 2023, the White House requested the Dept. of Health and Human Services along with the DEA to review how marijuana was classified.  After the study was completed in the Spring of 2024, the recommendation was to move marijuana to a Schedule III drug, similar to anabolic steroids, ketamine, acetaminophen-codeine, etc….  A proposed rule was issued by the DEA on 8/29/24, and a hearing is currently scheduled for 12/2/24, so it likely will not go into effect until sometime in mid-2025 at earliest.

The underlying rationale for the reason we do not have to provide medical marijuana in FL WC is that it remains illegal under Federal law.  Carriers cannot pay for it directly as it violates the law and the FL medical marijuana statute (381.986(15)(f)) specifically states we do not have to reimburse claimants.

So, when it likely changes at the Federal level, we may see a change in Florida law as to whether we need to provide or reimburse claimants for medical marijuana in FL WC.

Orlando World Center Marriott v. Gonzalez Chanza, (PCA) 1D0023-1079 (Fla. 1^st DCA 2024), OJCC 22-013883NPP

The JCC sided with the claimant, and unfortunately the 1^st DCA affirmed the JCC decision without a written opinion explaining their rationale.

In this case, the claimant was previously inured while serving in the United States Army. Outside of his VA treatment, he was “recommended” for medical marijuana therapy to treat his anxiety.  

When he began work for the employer in July 2021, the claimant successfully passed a pre-hire drug screening which did not test for marijuana.  The claimant was not asked nor did he tell Marriott before or after his employment of his legal use of medical marijuana.

On April 13, 2022, the claimant was injured pouring ice from five-gallon buckets into a bar tub. T post-accident drug test was positive for THC metabolites, and he was terminated. The claimant told the MRO of his medical marijuana card.

The claimant testified he understood that if he had a workplace injury he would be drug tested, but because he had a valid medical marijuana card, he believed that he had a valid excuse for having marijuana in his system.

The employer denied the claim and asserted  that they were a statutory Drug-Free Workplace per 440.102 and 59A-24. However the JCC noted that had the Employer conducted pre-employment drug testing for THC metabolites, the claimant’s legal use of medical marijuana would have been detected before the commencement of his employment and before any work-related injury.  Per the JCC. the Employer’s drug-free workplace policy did not comply with Statute for several reasons including not testing for THC metabolites in its pre-employment drug testing. 

Therefore, the JCC concluded that the presumption of intoxication provided by Section 440.09(7)(b), Florida Statutes, that the injury was occasioned mainly by the intoxication of or the influence of the drug on the employee does not apply.  The JCC ruled that the burden then fell to the Employer to establish, by the greater weight of the evidence, that the work-related injury was occasioned mainly by the intoxication of the employee.  The JCC found the Employer did not meet this burden based on the claimant’s description of this accident and injury and the lack of expert medical testimony that the claimant was under the influence or effects of THC at the time of the accident. The JCC found it to be a compensable accident. 

• The case was appealed to the first DCA and it was affirmed without a written opinion

• Of concern, this JCC decision seems to ignore prior caselaw and the statute wherein the E/C still gets the presumption in a non-drug free workplace setting, albeit with a lesser burden on the claimant to overcome the presumption (see Guatafson’s and the statute below).  It is unclear if the DCA supports this decision but they did affirm the overall outcome.

440.09(7)(b) If the employee has, at the time of the injury, a blood alcohol level equal to or greater than the level specified in s. 316.193, or if the employee has a positive confirmation of a drug as defined in this act, it is presumed that the injury was occasioned primarily by the intoxication of, or by the influence of the drug upon, the employee.  If the employer has implemented a drug-free workplace, this presumption may be rebutted only by evidence that there is no reasonable hypothesis that the intoxication or drug influence contributed to the injury.  In the absence of a drug-free workplace program, this presumption may be rebutted by clear and convincing evidence that the intoxication or influence of the drug did not contribute to the injury.

All of these changes bear watching as the classification of marijuana, the ban on providing it and the intoxication defense evolve.  In Florida, on the ballot for the November 5^th election is the legalization of recreational marijuana in Florida.  I will certainly keep everyone updated. Be sure to join us for our holiday parties in Tampa, Orlando and Atlanta in December!

Sincerely,

Morgan Indek | Managing Partner