Introduction – Our National Opioid Crisis
Our country is experiencing a crisis involving the overuse of narcotic medication leading to an alarming statistic of increasing overdose related deaths. There is evidence that medical marijuana, when properly prescribed and used, can be instrumental in reducing the effects of medical conditions, including chronic pain. The current crisis concerning the use of opioids has heightened the interest of medical marijuana as a treatment alternative. The Workers’ Compensation Commission may be among the earliest administrative bodies to reconcile the provisions of the Maryland Workers’ Compensation Statute and the Maryland Cannabis Law.
Background
The Maryland Workers’ Compensation Commission, hereafter referred to as the Commission, is often called upon to determine the reasonableness, necessity, and causal relationship of medical treatment involving chronic pain. Pain can result from surgery or non-invasive conservative treatments. In some cases, a patient’s pain has not been reduced, which results in the prescription and use of both nonnarcotic and narcotic pain medications. Patients desire and often demand to be pain free, which may result in an increasing level of narcotics. Unfortunately, increasing use of narcotic medication does not always provide the relief demanded, and in addition can increase drug dependency. Although the use of medical marijuana is still relatively new, there is anecdotal evidence that it has lessened pain, and allowed patients to increase function.
What is Happening in Maryland and Other States
Maryland has joined numerous other states and the District of Columbia in authorizing the use of marijuana for medical purposes. Maryland Health-General Article § 13-3301 et. seq. established the Natalie M. Laprade Medical Cannabis Commission, named in honor of a legislator’s mother who died from cancer and whom she believes would have benefited from medical marijuana. Indeed, the use of medical marijuana is strictly regulated beginning with the growing of marijuana, prescribing its use, and its dispensation to the ultimate user.
Section 13-1304 (d)(1)(ii) codifies the medical conditions for which medical marijuana may be used. Among the medical conditions most applicable to workers’ compensation cases are numbers: “2” and “5” of the statute:
“(ii) A chronic or debilitating disease or medical condition or the treatment of a chronic or debilitating disease that produces:
(2) severe or chronic pain
(5) severe or persistent muscle spasm.”
Section 13-1304 (e) states: “The Commission may approve applications that include any other condition that is severe and for which other medical treatments have been ineffective if the symptoms reasonably can be expected to be relieved by the medical use of cannabis.”
Marijuana is classified as a Schedule 1 drug under the Federal Controlled Substances Act (hereafter referred to as CSA), 21 U.S.C. Sections 801-904. It is still deemed by Federal Statute to be illegal. The conflict between state statutes and the CSA has yet to be ruled upon by the federal authorities, although there are conflicting decisions among the states. The issue is whether federal law preempts state statutes that authorize the growing, prescribing and dispensing of marijuana for medical purposes.
Two recent rulings from states that have addressed this issue demonstrate the conflict. In Lewis v. American General Media, 355 P. 3d 850 (N.M. App 2015), the New Mexico Court ruled that the use of medical marijuana was reasonable and necessary treatment under the New Mexico Workers’ Compensation law. The conflict between the Federal law and New Mexico law does not prevent the authorization of reasonable and necessary medical treatment. However, in a case from Maine, the majority of the court concluded there was a positive conflict between the Federal CSA and the Maine Medical Use of Marijuana Act. Accordingly, the CSA preempts the Maine statute, relieving the employer/carrier from the obligation to compensate the employee for medical marijuana costs. Bourgoin v. Twin Rivers Paper Company, LLC, et al. (2018 Me. 77) (Docket: WCB -16 – 433) (2018).
A Recent Hearing Before the Maryland Workers’ Compensation Commission
The Commission will be called upon to resolve the conflict between the Federal CSA and the Maryland Cannabis Law under its statutory authority to administer the Maryland Workers’ Compensation Act. As of this date the Maryland courts have not ruled on the issue.
A brief illustration of the issue was litigated in a recent case tried before the Commission. The injured employee had been taking opioid medications for years without any relief of pain. He testified as to his desire to stop his opioid dependency. He requested the Commission to compel the employer/insurer to authorize an evaluation for possible use of medical marijuana. The employer/insurer had previously offered the claimant a multi-disciplinary inpatient drug treatment program, which the claimant refused. The employer/insurer argued the claimant did not exhaust his treatment options under the cannabis law, and also asserted the preemption of the Federal CSA. The Commission denied the claim. The decision was not appealed.
Where Do We Go From Here?
The caption of this section underscores the current inconclusive status of these issues. Employees want relief from pain without a further risk of becoming a statistic in the opioid crisis. Employers and insurers are reluctant to violate Federal Law. The Commission, until it receives some guidance from the appellate courts of Maryland, will have to decide the issues on a case by case basis. As for the members of the bar, their advice to clients will have to be consistent with the Maryland statutes as well as the terms of the Controlled Substance Act. It is the duty of all of us to stay informed both medically and legally so that acting as reasonable people, the best solution may be achieved for all.
Donald P. Maiberger is a member of Anderson & Quinn, LLC, a law firm based in Rockville, Maryland, that provides individuals, businesses, corporations, and healthcare institutions with the legal and litigation support they need.
