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PHILADELPHIA – Employers seeking to deny workers compensation claims related to medical marijuana reimbursement will likely need to refine their legal strategies following the federal government’s order to reclassify the drug, a legal expert said.
Companies may have to refocus their arguments on the drug’s effectiveness for pain relief, said Frank Wickersham, a shareholder at Marshall Dennehey in King of Prussia, Pennsylvania.
Although the decision to move medical marijuana to Schedule 3 under the Controlled Substances Act will likely result in more studies on the drug’s effectiveness, he said Wednesday during a session at the Risk & Insurance Management Society’s Riskworld conference.
While medical marijuana is viewed as less risky than opioids, many employers are skeptical about its effectiveness as a pain-relief medication and often seek to avoid reimbursing workers comp claimants for its use, Mr. Wickersham said.
Previously, they had often argued that, despite state laws allowing its use, the drug was illegal under federal law and ineligible for reimbursement. Various state courts have ruled that injured employees should be reimbursed, though, and the Department of Justice’s recent order to reschedule from a highly addictive Schedule 1 drug to Schedule 3 further changes the legal landscape, he said.
“Schedule 3 is a different animal, and that means the government, by moving it to Schedule 3, sees it as having medicinal benefit,” Mr. Wickersham said.
Given the change, employers may need to focus on the drug’s efficacy, he said. In a recent Delaware casean employer successfully argued that marijuana was not a reasonable or necessary treatment for a work-related psychiatric claim, he noted.
“It’s kind of a blueprint for us on the defense side to follow, because I think we’ll probably get more cases where we’re going to be challenging the reasonableness and necessity of medical marijuana,” Mr. Wickersham said.
Employers will also likely learn more about the efficacy of marijuana because there will be more federally supported research following the rescheduling, he said.
“The reviews are positive, it’s considered to be effective, but that’s pretty anecdotal. It’s pretty subjective. I guess we’re going to learn more about that,” he said.
The rescheduling may also result in increased pricing of medical marijuana because large pharmaceutical companies will enter the market, said Kiersten Cash, senior manager, workers compensation and general liability, at the Children’s Hospital of Philadelphia.
The pharmaceutical companies could put local dispensaries out of business, she said.
“Then what do those costs look like moving forward for medical marijuana?” Ms. Cash said. “I think those skyrocket.”
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