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Marijuana, exclusive remedy challenges persist in 2019: NCCI

By Angela Childers

Marijuana-related workers' compensation cases and challenges to the exclusive remedy provision of the Workers Compensation Act continue to be widely litigated issues, according to the National Council on Compensation Insurance’s court case update, released Monday.

Legalization of marijuana and its impact on workers comp continues to be an area of broad interest, said Boca Raton, Florida-based NCCI in its update. Several states have passed marijuana legislation affecting workers' compensation in the past year. In New Jersey, employers are prohibited from taking adverse employment actions against workers using medical marijuana solely on their status as a marijuana patient. Rhode Island and Louisiana passed laws stipulating that employers were not required to pay for medical marijuana costs. 

Courts have heard several cases questioning testing and medical marijuana reimbursement. In Oklahoma, an appellate court held that THC in a workers’ blood after a workplace accident did not automatically mean the worker was intoxicated and denied workers comp benefits.

The worker, whose hand was crushed at the plastics plant where he worked, admitted to smoking marijuana but testified that he did 10 hours earlier — the night before his shift — and was injured by his co-worker trying to remove a piece of stuck plastic in a machine when his co-worker re-energized it. The case, Rose v. Berry Plastics Corp., has been appealed to the Oklahoma Supreme Court.

A Florida workers compensation judge determined in Jones v. Grace Health Center that employers and insurers cannot reimburse for medical marijuana prescribed under workers' compensation because it would violate the federal Controlled Substances Act, nor should they be required to pay for a medical evaluation to obtain medical marijuana.

The New Jersey Supreme Court will review the state’s medical marijuana law to determine if an authorized medical marijuana user can sue for discrimination since he was terminated after a positive drug test in Wild v. Carriage Funeral Holdings Inc.

In cases this year, workers also continue to challenge employer immunity from tort suits. In Amerigas Propane LP v. Aboyte-Muniz, the Texas Court of Appeals, 9th District, held that a worker failed to show that an employer name omission barred it from the exclusive remedy protection, with the court finding that the payment of premium by the employer and receipt of benefits by the injured workers was sufficient proof.

But in Oklahoma, the state’s high court ruled that when injuries are “substantially certain” to occur or that an employer acts with a willful, deliberate or specific intent to injure, the employer is not protected by the exclusive remedy provision in the state’s workers compensation act.

Other more heavily litigated areas in workers comp included challenges to American Medical Association Guides and the Official Disability Guidelines for assigning disability rating, ambulance reimbursement rates, state compensability presumptions for federal employees working at Washington state’s Hanford federal nuclear cleanup site, and when an individual’s home qualifies as a place of employment for workers compensation purposes.


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