Langham: Evaluation of the medical pot | Workers’ Compensation News


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Through David Langham

Tuesday July 6, 2021 | 0

The Florida 1st District Court of Appeals ruled Jones v. Grace Healthcare Wednesday. This is the first interpretation to deal with the complex subject of marijuana in workers’ compensation in Florida.

Judge David Langham

With her, Florida is one of the states that does not include pot in the world of “medically necessary” care and treatment following a work-related accident. The decision is of interest in a general sense but offers some more relevant legal reminders for lawyers.

The court recalls the Tipsy Coachman, the supremacy clause and the statutory interpretation. This is a decision of a panel (three judges), reviewing the judge’s denial of compensation claims for a referral for assessment regarding marijuana.

There seems to be a lot of confusion in the public regarding the pot. The words “legal” and “legalized” have been used in various press articles. More than one employee has found their world affected by a mistaken belief that pot is legal in Florida. On several occasions I have tried to remind people that pot is not legal in any one of the United States. Unfortunately, many experts insist on using this “legal” label, and the public seems to be misled by the word.

More recently, Decriminalize marijuana recounts the woes of two disappointed teachers whose potty habits led to employment problems. This post also tells the Florida Supreme Court’s interpretation of a proposed constitutional amendment regarding further decriminalization of the pot in Florida and largely focuses on the seemingly simple basis of federal law. So the federal law matters in Colorado recounts the first indicator of actions in favor of employment in Coates v. Dish Network.

When it comes to workers’ compensation, courts across the country have achieved generally consistent results regarding marijuana. See Federal law matters in Maine as well. However, some states have ordered workers’ compensation payers (employers or carriers) to reimburse injured workers for their money. New Mexico arrived at this conclusion maybe first.

It should be noted that even I misuse the phrase “legalize medical marijuana” in this article. It is a lazy and unhappy reference.

New Jersey was in the news most recently with its Supreme Court order requiring reimbursement of medical pot in a workers’ compensation case. Notably, this decision also relates to the Controlled Substances Act (CSA) which is discussed by the court in Jones.

Interestingly, the Florida court in Jones was not faced with a claim for marijuana per se, or even a refund. Instead, the injured worker there requested “a referral for medical marijuana.” Thus, a subtle distinction is suggested. However, the court was not convinced. He described the relevant federal and state law on the subject of pot and concluded that “a referral to a physician licensed to prescribe medical marijuana, including just to assess whether the employee is a good candidate for treatment. to marijuana, do not under any circumstances – be “medically necessary”.

This is a critical point. The court recalled that the responsibility of the employer / carrier in Florida is to provide an injured worker with “corrective treatment, care and assistance” that is “medically necessary”.

Workers’ compensation law provides a benefit and a burden to both employers and employees. Medical care is a major component of workers’ compensation, a benefit for employees and a burden for employers. Thus, in any request for medical care, “medical necessity” can potentially play a preponderant role as a factual dispute (experts may have differing opinions) but also as a legal dispute.

The question of whether the care is “medically necessary” is often the subject of medical opinions in the context of workers’ compensation. It is common for trials to include records and testimony that express conclusions regarding “medical necessity”.

In Jones, two doctors “concluded that referral for a medical assessment of the marijuana was medically necessary.” There was no factual dispute and therefore the factual framework was presented for the court to apply the law.

Above all, our laws are the result of our republican process. Through our elected officials, the will of the people has apparently been expressed, in two parts. First, Congress made the possession or use of marijuana illegal, under federal law. Second, he banned federal law enforcement agencies from applying this law (Rohrabacher-Farr amendment). Some may understand why a minimum of confusion persists.

Jones’ court noted that the trial judge dismissed the application for an assessment of marijuana, in part, on “Section 381.986 (15) (f), Florida Statutes, which provides”[m]arijuana … is not reimbursable under Chapter 440. ”The injured worker argued that this law should not apply because he“ was not seeking payment for marijuana for any purpose. medical “, but only” an evaluation by a doctor who could write a certificate “to facilitate access to illegal drugs.

The court explained that to be “medically necessary”, care must meet criteria. He noted “that the sole reason for the referral was to facilitate Jones’ efforts to” obtain the illegal drugs. The court concluded “[t]This fact proves fatal to Jones’ claim. The court ruled that the distinction between valuation and payment of the pot is “a false distinction”, which it rejected. Would the outcome be different if the claim was for an assessment regarding heroin, LSD, or in a nutshell, no, each is an illegal drug (on Schedule I, with pot).

The care described, the pot, “is not reimbursable under Chapter 440”. The court explained that “[t]its legal prohibition makes the objective treatment of the assessment – the acquisition of marijuana – unquestionably non-refundable.

This is interesting, because it illustrates both the statutory interpretation (ordinary meaning) and the oft-forgotten premise that not all Florida workers’ compensation is in Chapter 440. Ultimately, because the ultimate goal of the assessment is therefore not medically necessary. , “There can be no medical necessity in an assessment related to this treatment.”

Beyond the state’s ban on pot compensation, the court noted that marijuana is illegal. He cites the Controlled Substances Act and its classification of pot as a “Schedule I substance” since 1970.

Many struggle with this, but pot is illegal. It “currently has no accepted medical uses for treatment in the United States.” Possession of weed “is a federal crime throughout the United States.” The court recalled that Florida “allows the purchase, possession and use of marijuana for medical purposes”, but that “federal law must prevail in circumstances like this”.

The tribunal reverted to its obligation under the supremacy clause of the US Constitution (Article VI), noting “[w]We are required by the Constitution of the United States to apply the CSA on a contrary provision of the Constitution of Florida. One could conclude questions of federal law in Florida.

Once again, the Drunken coachman is discussed by the court. Interestingly, the concept comes from a long 18th century poem “Retaliation”. In rendering its decision, the Georgia Supreme Court used the poem to explain its analysis in Lee v. Porter (1879). A century later, the Florida Supreme Court adopted the analysis of Carraway v. Armor & Co. (1963). It is a now revered and fundamental part of Florida law.

And the court noted that in Jones his analysis was different from that of the trial judge, but the paths led to the same conclusion. In other words, “[T]The “drunken driver” doctrine allows an appeals court to say that a trial court “achieves the right result, but for the wrong reasons” as long as “there is a basis which would support the judgment in the case. file ”.

Those who are considering seeking an appellate review are wise to remember the coachman. While the findings of a trial judge may be found unconvincing, an appellate court can still uphold the result.

It is possible that Jones v. Grace Healthcare is not the last word on workers compensation in Florida. Appeal decisions are always applications of the law to particular facts and circumstances, with the possibility that different facts or arguments may give rise to a different analysis or result. And there remains external potential that Congress may one day overcome its current dichotomous confusion of “not legalizing but not enforcing”.

However, today, in this small corner of the world, the medical pot is not compensable in workers compensation, nor the assessments in order to obtain this illegal drug.

David Langham is Associate Chief Justice of the Florida Office of Judges of Compensation Claims. This column is reprinted, with permission, from his Florida Workers’ Comp Adjudication Blog.

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