Greetings,

I hope all of you that were in the path of hurricane Ian escaped with minimal issues and are doing well.

A few of you have asked for an update on medical marijuana in Florida’s WC system. There really are two aspects, do we have to pay for it under FL WC and is there an intoxication defense if someone tests positive for marijuana but has a card for medical use.

1. Do we have to pay for it?

Per the Florida medical marijuana statute,  marijuana is not compensable under the WC statute, nor is it reimbursable.   The 1^st DCA agreed in Jones, Patrick Shawn vs. Grace Healthcare Center, No. 1D19-1684, (Fla 1^st DCA 2021), stating:

“Simply put, Jones cannot force Grace Healthcare to pay for an evaluation by a health care provider that has as its sole purpose the facilitation of marijuana treatment, which is not reimbursable and has no accepted, safe, medical use. As a matter of law, the evaluation is not, and cannot be, medically necessary.”

Here is the case: https://www.jcc.state.fl.us/jccdocs20/TPA/Polk/2003/025539/03025539_291_07012021_09332638.pdf

So for now, the answer is no.*

2. Do we get an intoxication defense?

We do not have a 1^st DCA opinion yet on this issue, but there are a few JCC level decisions that seem to indicate, yes, we still get the defense.  In one 2020 case, the claimant refused to submit to a drug test, alleging it was (among other nonsense) because he had a medical marijuana card.  The JCC found his refusal was not justified and applied the intoxication defense regardless.

3. What’s changing?

As of right now, nothing yet.  However, the entire premise is based on the fact marijuana remains an illegal schedule 1 controlled substance at the Federal level with no recognized legal medical use.   There were three bills proposed but not passed in the last US Congress:

• One bill would have moved marijuana from schedule 1 to schedule 3 to allow for medical use.
• Another would have allowed for use of marijuana in Federal medical research programs
• The third bill would have decriminalized marijuana at the Federal level and would not interfere in states ability to allow or not allow its usage.

None of the three bills passed, but I imagine we will continue to see more proposed in the coming sessions,  If it does change at the Federal level, it would certainly impact our ability to use an intoxication defense if someone did have a card for medical use.   Just as you could not deny for intoxication defense if someone had a prescription for oxycodone.

As always I will keep an eye on the bills and update you as they progress.

Sincerely,

Morgan Indek | Managing Partner