The legalization of medical marijuana by Missouri voters on November 6, 2018 increases the probability that claims for payment for medical marijuana will be presented in Workers' Compensation cases within the Evans & Dixon service area. Such claims will raise the question of whether medicinal marijuana therapy should be authorized and/or paid for by the workers compensation carrier.
As is the case with any proposed treatment the employee will have to prove that it is reasonably necessary to relieve or cure the effects of the work related injuries. Medical marijuana raises unique issues.
Attention focused on the changes in Missouri law may lead people to overlook the fact that marijuana remains classified as a Schedule I drug under the United States Controlled Substances Act (hereafter CSA) (21 U. S. C. S. Sections 801-904).
Because marijuana is a Schedule I substance, the CSA makes it a crime to knowingly or intentionally “manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense” marijuana, 21 U.S.C.S. § 841(a)(1), as well as to “knowingly or intentionally . . . possess a controlled substance,” id. § 844(a).5 Further, and important to the question presented here, a federal prosecution can be directed against a “principal,” which is defined as any individual who “commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission,” 18 U.S.C.S. § 2(a) (LEXIS through Pub. L. No. 115-181) (emphasis added).
Violations of the CSA, including aiding and abetting, can result in significant penalties including a minimum fine of $1,000 and may also include as much as one year of incarceration, with a greater sentences if certain aggravating factors are present, such as a prior conviction for any drug offense, including offenses established by the CSA.
The Supreme Judicial Court of Maine has already ruled that:
So long as marijuana remains a Schedule I substance under the CSA, see 21 U.S.C.S. § 812(c)(Sched. I)(c)(10), an employer that is ordered to compensate an employee for medical marijuana costs is thereby required to commit a federal crime defined by the CSA. See 18 U.S.C.S. § 2(a); 21 U.S.C.S. § 844(a).
Other states have ruled to the contrary. New Mexico has ordered reimbursement of medical marijuana expenses, largely on the basis that current federal policy on prosecution of CSA violations related to medical marijuana makes it speculative as to whether one paying for medical marijuana would suffer injury in fact. As of June 29, 2018 in at least two New Jersey cases workers’ compensation judges have ordered payment for medical marijuana treatment.
Future cases in Missouri and elsewhere will have to determine whether or not workers’ compensation carriers can be ordered to pay for treatment that would constitute aiding or abetting in the possession and use of marijuana and thereby require the employer or TPA to commit a federal crime. Until such time as the CSA is amended or the matter is settled by the courts all involved will be wise to resist payment for medical marijuana therapy.