The Medical Marijuana Club: High Times for Workers’ Compensation?

California is poised to join an exclusive club with regard to legalized marijuana. Voters in Washington, Oregon, Colorado, Alaska and the District of Columbia have passed laws legalizing marijuana for medicinal and recreational use. Voters in 23 additional states, including California, have laws in place that legalized marijuana use for medicinal purposes. While there is little question that recreational marijuana has no place in the workforce, employees that use it for medicinal purposes fall into a separate and unique category.

Is It Legal?

While states that have legalized marijuana believe that they have conclusively answered this question, unfortunately the reality is not so simple. This is because, to the chagrin of marijuana advocates, the federal government still officially considers marijuana to be a Schedule I drug. It is among those drugs that, according to the federal government, serve no medical purpose and cannot be prescribed as treatment for any ailment. So what are employers to do if they discover an employee has been prescribed and in fact is using medical marijuana? Employers must follow federal laws, but also are governed by the laws of the state in which they sit.

Luckily for California and other states that are grappling with legal struggles surrounding marijuana, Congress recently passed legislation that decriminalizes medical marijuana. While this does not extend to recreational marijuana, it provides guidance that allows employers to treat medical marijuana like any other treatment for an employee’s injury.

Who Pays for Treatment?

One consideration for employees who use medical marijuana and find themselves involved in the workers’ compensation system is whether its use will even be covered by their employer’s insurance coverage. For example, the New Mexico court of appeals recently found that an employer was liable for paying for an injured employee’s medical marijuana as treatment for his injuries. Whether this court’s findings will be an anomaly or guidance for future courts who will have to deal with this issue is unknown, but it does show that courts in states who have recognized medical marijuana as a viable treatment option may also consider expanding its reach into the workers’ compensation arena.

In California, the issue of whether workers’ compensation insurers will be required to pay for medical marijuana as treatment for a workplace injury has not been tested. Some insurers have indicated that they are considering handling any requests on a case by case basis, as they would with any prescription drug. However, others have concerns about potential use in the workplace and whether marijuana use would constitute an impairment that could lead to further injury. This latter group is in good company, as tests for marijuana impairment are far from perfect. An important issue that will need to be addressed, most likely through individual claims under existing workers’ compensation laws, is how to determine if a workplace injury was in-part or completely due to the employee’s use of medical marijuana and therefore, not compensable.

Conclusion

California lawmakers, attorneys, and citizens should be watching how medical marijuana in the workplace is being handled by courts in states such as Colorado and New Mexico. The future of coverage for treatment will likely be heavily impacted by how those courts rule on facts that are similar to those faced by parties involved in California workers’ compensation cases.

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Workers’ Compensation Review: News of the Weird

As any workers’ compensation attorney can tell you, sometimes people are injured in some very interesting ways. The most intriguing aspect of odd injury cases is the fact that they are sometimes compensable. The following is a review of some of the more interesting workers’ compensation cases to come out of courts in California and beyond, and should serve as a reminder that the workplace is a very dangerous place indeed.

My Hero, or How One Man Took on the Vending Machine, and Lived

Few things are more dangerous to the health of Americans as processed junk food, or so some say. I would offer up a story out of Illinois as evidence that the actual snack machine is more of a threat. According to legal documents, a Circuit City employee named Clinton Dwyer was a man who could not stand idly by and allow the office snack machine to deny his coworkers the right to enjoy a bite to eat with their break. Dwyer leapt into action after the nefarious machine refused to let go of a tasty treat. Unfortunately for Dwyer, he fought the machine and the machine won when he was knocked to the ground with a broken hip. The most surprising part of this story, however, is not the sheer determination of hungry employees, but the fact that the Illinois Workers’ Compensation Commission and state appellate court found his injury to be compensable. They disagreed as to whether it was due to the personal comfort doctrine or the good Samaritan doctrine, but the end result was that the employer’s insurer had to pay for treatment.

Chasing Windmills

The final case is from 2013 out of Ohio involving an argument over what constitutes horseplay in the workplace. Specifically, an employee was casually walking down the hallway at work when she and a coworker collided, causing her to fall to the ground and suffer an injury. As the injury happened in the workplace, naturally the injured employee filed a workers’ compensation claim. This was no everyday coworker collision, however, as it was found out that the injured employee had been casually walking down the hallway while swinging her arms like windmills. According to her coworker’s testimony, the injured employee often walked down the hallway like this and so he was merely trying to block her swinging arms when she was knocked to the ground. Since horseplay generally acts as a bar to receiving workers’ compensation benefits, it is understandable that an injured worker would be creative, but the Ohio court thought differently.

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California’s Special Mission Exception

California’s Special Mission Exception in the Courts: A Review

California’s coming and going rule is a commonly cited, and often litigated, concept in the workers’ compensation arena. While seemingly straightforward, this rule has many exceptions, not least of which is the special mission exception. Courts in California have helped shape the special mission exception through decisions involving numerous different fact patterns. Understanding the nuances of these cases and reasons supporting a certain decision can help others who find themselves navigating the workers’ compensation system.

California’s Special Mission Exception

Lantz v. Workers’ Compensation Appeals Board (2014)

In this case, the Lantz worked as a correctional officer and commuted approximately 85 miles from his home to work each day. After completing his shift, he was ordered by his employer to stay and work the following shift. Once he completed the double shifts, he began his commute home and was killed in an automobile accident. In response to his widow’s application for workers’ compensation benefits, the Workers’ Compensation Appeals Board (WCAB) found in favor of Lantz’s employer, citing the coming and going rule to bar an award of benefits. Lantz’s widow appealed and argued that her husband was on a “special mission” for his employer after being requested to stay for a second shift.

The court of appeals affirmed the decision of the WCAB, essentially stating that the request by Lantz’s employer was not sufficient to trigger the special mission exception to the coming and going rule. The WCAB and court of appeals found that the employer’s request that Lantz stay to work a double shift was not so far out of the ordinary to be considered a special mission, and therefore, his injury did not arise out of employment. The factors that were relied upon to make this decision were that the request was a common occurrence for persons in Lantz’s position and that the duties of the second shift were sufficiently similar to the duties he performed during his regularly scheduled shift, thereby making the employer’s request not extraordinary.

Compare this outcome with that of Safeway v. WCAB, a much earlier case involving the special mission exception.

Safeway v. WCAB (1980)

In this case, a data entry clerk was asked by his employer to stay past the end of his shift to help with inventory. Approximately five hours after the time he normally would have been heading home, the worker left his place of employment and commuted home. The worker was then injured as he left his car and was walking toward his home. The employer in this case argued that the coming and going rule barred the worker from receiving workers’ compensation benefits, but the WCAB disagreed. The WCAB found that the employer’s request for the worker to stay past his shift constituted a special mission, and therefore the worker was entitled to benefits. The employer appealed and the case went before the court of appeals, which upheld the decision of the WCAB.

In the Safeway case, the court of appeals cited two factors it used in making this decision. The first factor was that the employer’s request required the worker to perform inventory duties, which were out-of-the-ordinary from his normal data entry duties. Second, the WCAB stated that a request from an employer that requires an employee to leave work at a later time than usual is similar to requesting that an employee come in earlier than usual, which is traditionally covered by the special mission exception. Citing California’s “policy of liberal construction in favor of the employee,” the court of appeals upheld the WCAB’s decision to award benefits to the injured worker.

Conclusion

Essentially, these two cases show that whenever the coming and going rule and its many exceptions are at issue, the final outcome will depend greatly on the specific facts of the matter at hand. Though seemingly simple, successfully navigating a case involving the coming and going rule can require the use of complex legal principles and novel arguments.

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Workers’ Compensation Settlements: Medicare Set Asides

The workers’ compensation process can be confusing, especially for injured workers who just want

to get back to their pre-injury lives. While the system was created to streamline cases involving

workplace injuries, the numerous statutes and rules that are govern these types of cases can get

complicated, especially when federal benefit programs are involved. For example, what if a

worker’s injuries require prescription medication or other care that may one day be covered by

Medicare? In this situation, as part of a settlement agreement, there will also be money that is

designated as a “medicare set-aside.”

Medicare Set Asides

What is a Medicare Set-Aside?

A Medicare set-aside is part of a settlement agreement that designates a portion of a workers’

compensation settlement amount to pay for future medical treatment related to the workplace

injury. Set-aside accounts are required as part of workers’ compensation settlement agreements

because Medicare is considered a second payer, which means that it wants to ensure that any

treatment that is related to the workplace injury is first payed by the workers’ compensation

insurer. Once the money in the set-aside account is depleted, so long as certain conditions have

been met, taxpayer money is then used to pay for medical treatment that is covered pursuant to the

Medicare program.

When is a Medicare Set-Aside Required?

While an attorney can provide more information, a Medicare set-aside is generally required in two

situations. First, it is required whenever an injured worker is currently designated as a Medicare

beneficiary and the settlement amount is more than $25,000. The second situation is a bit more

complicated. The second reason a Medicare set-aside account is necessary is two-pronged. Even if

an injured worker is not a current Medicare beneficiary, if there is a reasonable expectation that the

injured worker will be eligible for Medicare within thirty months of the settlement day, and if the

total settlement amount is expected to be greater than $250,000, then a set-aside will be necessary.

The total settlement amount not only includes any lump sum cash settlement, but it also takes into

account the amount that has been calculated for future medical expenses and disability or lost

wages over the life of the settlement.

Being injured at work can change someone’s life forever. Oftentimes, the highest priority of the

injured worker is to recover their health and return to the life they had pre-injury. Unfortunately

that is not always possible. Workers’ compensation laws were designed to help an injured worker

receive immediate care and treatment for a workplace injury without having to go to court. While it

is true that a large majority of cases no longer go through the court system, there are many other

administrative obstacles to navigate in order to ensure an injured worker receives the care and

treatment they deserve. Medicare set-asides are just one more element to workers’ compensation

law and it is advisable to obtain advice from someone who has experience in these matters before

entering into any settlement agreement.

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