Three Things About Medical Marijuana and Workers Comp

Medical marijuana is coming to Ohio. What impact will this have on compensation for work-related injuries? Will workers compensation cover an injury sustained while taking medicinal marijuana? If you are injured on-the-job, will BWC pay for medicinal weed?

1.       Will workers comp cover an injury sustained while high?

No. Ohio law creates a rebuttable presumption that any injury sustained while under the influence of pot – medical or otherwise -- was caused by the worker’s own intoxication and therefore not covered. A rebuttable presumption means that the burden of proof shifts to the worker to dis-prove this presumption – an uphill battle. It is safe to assume that most injury claims sustained while under the influence of marijuana will be denied. This is true regardless of whether the marijuana is recommended by a physician.

2.       Will BWC cover marijuana for my work-related injury?

Probably not. In order to get a marijuana prescription, you need a qualifying medical condition. Some conditions – like chronic pain, PTSD, spinal cord injury, and traumatic brain injury – can be work-related. Nevertheless, existing rules provide that drugs covered by BWC are limited to those approved by the FDA and marijuana remains illegal under federal law. Also, BWC-funded prescriptions must be given by a registered pharmacist and medical marijuana will only be dispensed from retail dispensaries.

3.       You can still get fired for the use and possession of medical marijuana.

Under Ohio’s new law, an employer retains the right to fire an employee because if his use, possession or distribution of medical marijuana. This bears repeating: an employer can fire you for using medicinal marijuana. Because the ADA (Americans with Disabilities Act) does not protect individuals currently using illegal drugs, an employee can be fired for using medicinal marijuana.

It goes without saying that using dope while working is a no-no. But these rules ignore one fact: a marijuana user will test positive for days or even weeks after use. Unlike alcohol, valid detection for cannabis cannot determine an approximate degree of impairment. These rules ignore this reality and treat our system of compensating injured workers as a branch of the penal code.

It is a bad time to be injured at work.

A lawyer's group that I subscribe to recently included the following post that I am sure resonates with many who fight on behalf of injured workers. It is entitled "I Had a Bad Day:"

I had a bad day. Long boring story. But made me stop and think. I suspect all of us do this sometimes especially on bad days. It has never been worse for WC claimants and their lawyers. True? Might there be a handful of hearing officers and BWC doctors who try to be fair and objective? Yes. I think so. We all probably know a few. And yes, there are also a handful of defense firms who we respect because they want objective opinions and fairness.

For example, a defense attorney called me recently and alerted me to a situation that enabled me to avoid a premature termination of TT and a possible claim of fraud. Very nice of him to do that. I hope I can return the favor someday. How often does that happen? Unfortunately, we can agree that these doctors and defense firms are the exception. For those of us that have been practicing a long time, we recall better times.

The C-92 percentages are unfair (they used to be predictable and reasonable).

The BWC physician reviews are biased (fair reviewers get axed).

Most DHOs and SHOs are predisposed to look for what’s wrong with a claim. Few truly objective hearing officers remain.

But for the few good ones, the hearing officers seem clueless to their biases and flaws. Is there not an arrogance and obliviousness there?

The light duty job offer trap and voluntary abandonment trap are used every day on unrepresented injured workers to defeat TT. Do others see this your practices? Employers coldly lie to injured workers about these things and get away with it nearly every time. Right? The hearing officers seemingly do not believe these things occur. They accept the employer’s version of facts and overlook the deception practiced on their unsuspecting employees. It’s like the injured worker should have known better.

When the voc rehab folks close a file, the injured worker is often blamed in a culpable way that can later defeat a PTD application. What in the system compels them to do that? This is devastating in many claims. Does this just happen to my clients?

The substantial aggravation requirements are impossible to satisfy in most cases because the requirements are strictly applied (unless the issue is intervening injury – seems like SAPE is easy for employers to use).

IME doctors find that everyone over forty years old has a pre-existing condition in whatever joint of the body is involved with the injury. This situation forces us to advance up to a $1,000 for causal relationship reports.  Either that or we just give up. Am I missing something here or doing something wrong in this area?

There are many more examples of unfairness in the system that any of us could list (unless it’s just my practice that is experiencing these bad things). Every now and then something positive happens.

I handled suicide death claim recently. The facts were compelling. The reviewing psychologist issued a report strongly supportive of the allowance of the death claim. The BWC went back to him TWICE for supplemental reports. He refused to change his opinion. Good for him. The claim was allowed. I have great respect for this psychologist. I doubt that the BWC will use him again anytime soon.

Who can recall a time when it’s been worse? I cannot.

To be fair, there are abuses on our side. Most claimants’ lawyers are good people. There are a few that are sleazy. We know who they are for the most part. And shame on them because they make an already bad situation worse for the rest of us.

Thanks to those who took the time to read this.