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Are Maryland workers’ compensation carriers liable for payment of medical marijuana?

November 17, 2021
April 18, 2019

While marijuana has been around for many centuries, only now is it being used as legalized medicine in the United States.  Can it be claimed as medicinal for the purposes of workers’ compensation in Maryland? The answer is yes and no, and the answer is evolving.

Legalized marijuana

Maryland state lawmakers voted to allow medical marijuana in 2012. It took years to create the legal and business infrastructure to accommodate the new industry, which became operational in late 2017.

The active ingredient in marijuana is THC. It is usually prescribed for problems such as anorexia, wasting syndrome, pain, nausea, seizures, muscle spasms, glaucoma or PTSD. Therefore, other than pain relief, the uses for medical marijuana do not fit neatly into the typical workers’ compensation claims.

One of the main issues associated with medical marijuana is the fact that there are no dosages. From a medical perspective, this makes covering medical marijuana more complicated. Unlike other prescription medications that have specific dosage instructions, marijuana cannot be prescribed by a physician. According to the U.S. Food and Drug Administration, it is still considered a Schedule I illegal drug. In most states, marijuana is in the same category as heroin and cocaine.

Also, while most drugs are prescribed by doctors and distributed at pharmacies, registered medical marijuana users can receive written certification from anyone who meets the definition of a "bona fide provider-patient relationship," which includes any provider who reviews the patient's medical records, completes an in-person assessment, creates and maintains standardized records, monitors and follows up on the patient's care. The drug is distributed not at pharmacies but via licensed dispensaries.

For these reasons, insurance companies have, at times, rejected workers' compensation claims for medical marijuana.

Current State of the Law

The Maryland senate recently passed a bill that requires workers’compensation providers to cover the use of medical marijuana as part of an injured employee’s treatment plan. The bill specified that the employee must follow the specific instructions provided by their physician. In addition, if the employee becomes injured due to a misuse of medical cannabis, the employeris not responsible for those injuries.

Of course, that bill is not yet law in Maryland so there are cases presently pending before the Maryland Appellate Courts, to determine whether insurers for workers' compensation injuries are responsible for payment of marijuana prescriptions.

Experts say courts are usually loathe to get between a doctor-patient relationship and that until a national consensus is reached, the decisions are likely to be on a case-by-case basis.