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Do Employers Have to Pay for Medical Marijuana in Illinois Workers’ Compensation Claims?
“Reefer madness” is a thing of the past. Gone are the days where the general public compares cannabis with hard substances such as heroin or LSD. The decreased apprehension around marijuana, especially for medical use, is likely because of increased efforts to curb the opioid crisis. Despite the relaxed attitude, 10 years of legalization and 130 licensed cannabis dispensaries, medical marijuana is still not a reimbursable treatment under the Illinois Workers’ Compensation Act.
Due to cannabis’ classification as a Schedule 1 drug under the Federal Controlled Substances Act the Commission will not authorize it at as medical treatment. The Commission first addressed this issue in Jerry Valadez vs. City of Harvey. Jerry Valadez v. City of Harvey, 2020 Ill. Wrk. Comp. LEXIS 1124 (Ill. Workers’ Comp. Bd. December 16, 2020). Valadez was employed by the City of Harvey as a firefighter when he sustained injuries to his back while extricating three men after a car accident. Id. at 2-3. A doctor noted Valadez’s work accidents aggravated his lumbar spine to the extent of needing surgery. Id. at 52.
In May 2015, Valadez was told by a doctor that if he continued taking opioid pain medication, he would need a liver transplant. Id. at 53. As an alternative form of pain management, one of his doctors recommended he try medical marijuana for his spinal condition. Id. Under the Illinois Compassionate Use of Medical Cannabis Pilot Program Act (CMCPP), Valadez had a qualifying debilitating spinal cord injury that allowed him to purchase medical marijuana. Id. at 54. He stated the medical marijuana allowed him to function and play with his grandchildren and contrasted the marijuana with the effects of the Norco which caused him to have bloody stools. Id. at 54-55.
Despite the purported positive effect of medical marijuana on Valadez’s quality of life, the Arbitrator refused to authorize reimbursement. The Arbitrator noted that the CMCPP “exempts participants from criminal prosecution under Illinois controlled substances laws,” but the CMCPP does not exempt participants from criminal prosecution under federal controlled substance laws. Id. at 113. The Arbitrator found that “due to the principle of federal preemption medicinal marijuana is not reasonable or necessary under the Illinois Workers’ Compensation Act.” Id. at 114. The Commission affirmed the Arbitrator’s decision to deny the reimbursement/payment for medicinal cannabis. Id. at 8.
The Commission affirmed an Arbitrator’s decision to deny reimbursement for medical marijuana again in October 2023. Michael Martino v. Performance Floors Corp., et. al., 2023 Ill. Wrk. Comp. LEXIS 564, (Ill. Workers’ Comp. Bd. October 13, 2023). The petitioner in Martino sustained substantial injuries to his spine while unboxing carpet box tiles. Id. at 10. Prior to his injury in 2017, Martino had never injured nor had any work restrictions related to his lower back. Id. at 17. After various forms of treatment including surgery and injections to his spine, Petitioner had constant back pain that shot down his leg. Id. He reported taking Gabapentin, Flexeril, and medical marijuana daily. Id. The Petitioner paid for the medical marijuana out of his own pocket and did not submit any medical marijuana bills or request reimbursement for the cannabis. Id. at 41.
Though the Petitioner did not request reimbursement for medical cannabis, the Respondent asserted they should not be liable to pay the costs of medical marijuana and the Arbitrator agreed. Id. at 40. In reliance on the Valadez case, the Arbitrator stated the expense of medical marijuana cannot be authorized or awarded by the Commission. Id. at 41. The Commission affirmed and adopted the decision of the Arbitrator. Id. at 1.
Currently, five states require employers to reimburse claimants for medical marijuana if a medical practitioner finds it necessary for treatment. The five states are Connecticut, New Hampshire, New Jersey, New Mexico, and New York. Those state supreme courts basically held that denying reimbursement for medical marijuana to a workers’ compensation claimant would be antithetical to their respective state statutory laws that legalize marijuana for medical treatment. Furthermore, denying a claimant of medical marijuana in qualifying circumstances would constitute a denial of a claimant’s right to reimbursement for reasonable and necessary care. With respect to the concern that the employer would be criminally liable for aiding and abetting, the Supreme Court of New Hampshire notably concluded the employer would lack the requisite mens rea for an aiding and abetting offense because the employer’s reimbursement is compelled by state law rather than by voluntary participation.
Besides Illinois, Maine, Massachusetts, and Minnesota have firmly rejected the compensability of medical marijuana. Markedly, the Supreme Court of Minnesota rejected the aforementioned arguments and instead took the position that regardless of state-level legalization and the likelihood of criminal prosecution for reimbursing medical marijuana, Federal law ultimately leaves the door open for criminal prosecution. The two Minnesota cases that addressed this issue, Musta and Bierbach, were appealed to the U.S. Supreme Court, which in turn requested a brief from the Office of the U.S. Solicitor General. In its brief, the Solicitor General argued that this was a novel issue and that the Court would benefit from further developments of preemption questions in the lower court. The Court adopted the recommendation of the Solicitor General and denied both appeals.
In Illinois, as long as cannabis remains banned at a federal level and no Illinois state legislation or Illinois court says otherwise, employers will not be compelled to reimburse claimants for medical marijuana. On its face, this appears to be a good thing for employers. However, when faced with the heavy cost of authorizing opioid medication, the rule may end up doing more harm than good to the employer.
If you have any questions about whether to authorize treatment in a workers’ compensation case, please reach out to our attorneys here.