MEDICAL MARIJUANA AND WORKERS’ COMP

The workers’ compensation system provides injured workers with medical treatment for injuries that have been established as part of their claim. In recent years, however, the nature and extent of the medical treatment that can be provided has become highly regulated (and often limited) by the Workers’ Compensation Board’s use of “medical treatment guidelines” and a prescription drug “formulary.”

Both the guidelines and the formulary require a treating doctor to make a case for why a treatment or prescription that is not listed should be approved. Because medical marijuana is not listed, questions have arisen about whether it is ever appropriate in a workers’ compensation case. Recent cases and a publication from the Board have made it clear that the answer is “yes.”

In September of 2021, the Appellate Division upheld a Board decision that authorized medical marijuana because the injured worker suffered from debilitating chronic pain, no other form of treatment had been effective, and a prescription for medical marijuana significantly reduced the symptoms.

Around the same time, the Board issued a proposed regulation stating that a doctor must seek prior authorization for a marijuana prescription and must show (1) that the worker has a serious life-threatening condition as well as (2) a work-related injury, (3) certification from the New York State Department of Health to receive medical marijuana, (4) other forms of treatment have failed; and (5) medical marijuana is expected to result in functional improvement.

It is clear that there is now a (narrow) path for injured workers to seek approval for the prescription of medical marijuana in workers’ compensation cases.