Morgan’s Tip of the Week – FL Medical Marijuana Update
Greetings,
On June 30, the 1st DCA ruled on whether an Employer/Carrier has to authorize a “referral for Medical Marijuana” in Jones v. Grace Healthcare (1D19-1684), case attached. The DCA found the E/C did not have to authorize the referral:
“Under Florida law, marijuana is not reimbursable within our worker’s compensation system. Moreover, extant federal law—which we are
oath-bound to follow—characterizes marijuana as having no accepted medical use and makes all possession and use of it illegal
throughout the United States. In turn, a referral to a physician authorized to prescribe medical marijuana, including even just for
an evaluation of whether the employee is a good candidate for marijuana treatment, could not—under any circumstances—be
“medically necessary,” as that term is defined and used in section 440.13, Florida Statutes. We affirm.”
The DCA’s rationale in the order is very clear. And I feel the language in the order could be applied to an intoxication defense if the claimant failed a drug screen for Medical Marijuana:
“Even though some states—including Florida—permit the purchase, possession, and use of marijuana for medical purposes,
federal law must prevail in circumstances such as this. We are bound by the United States Constitution to apply the CSA (Controlled Substance Act) over a
provision in the Florida Constitution to the contrary. As the federal constitution commands, the “Laws of the United States . . . shall
be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of
any State to the Contrary notwithstanding.” Art. VI, U.S. Const.”
So, my take is if a claimant fails a drug screen for Medical Marijuana, the JCC’s would be bound to follow the DCA logic in Jones that marijuana still violates Federal law/ In that case, a denial for intoxication would be valid if otherwise a solid defense.
The claimant could ask the Florida Supreme Court to review this decision, but at least per the docket, that has not been requested yet. It’s highly unlikely the Florida Supreme Court would overturn the decision.
Sincerely,