Florida Employers Cannot Be Required to Pay For an Evaluation by a Health Care Provider That Has, As Its Sole Purpose, a Recommendation for Marijuana Treatment

Written by: Rayford H. Taylor, Esq.

The First District Court of Appeal in the case of Patrick Sean Jones v. Grace Health Care, ______ So.2d ______, (1D19-1684, June 30, 2021) was presented with the question of whether an employer/carrier should be required to pay for an evaluation for a referral for medical marijuana.  The case involved an injured worker who sustained a work-related accident in 2001.  In 2017 the worker asked his treating physician if he could try medical marijuana to control his pain.  The doctor indicated he was not in a position to “prescribe” medical marijuana but he wrote the injured worker a script for a referral to a doctor apparently qualified to examine him and write a certification to obtain medical marijuana in accordance with Florida law.

The employee sought authorization for the evaluation but it was denied by the employer.  At a hearing on his petition before a judge of compensation claims (JCC), the worker presented testimony from his treating physician and an independent medical examiner. Both doctors concluded that a referral for a medical marijuana evaluation was medically necessary and causally related to his workplace accident.  The employer presented no contrary testimony.  Rather, it argued state law precluded marijuana from being reimbursable and federal law prohibited an employer from paying for medical marijuana.

The JCC noted medical marijuana might reduce or eliminate the long-term side effects of continued and indefinite use of oral pain medication.  Nevertheless, the JCC ruled he was prohibited from granting the employee any relief because of Florida law.

Section 381.986(15)(f) Fla. Stat. specifically states “marijuana … is not reimbursable under Chapter 440”.  The JCC held that statute relieved an employer or carrier of the obligation to pay for medical marijuana for an injured worker.  As such, the statute prohibited reimbursement for the evaluations by a qualified physician to obtain the certification necessary to obtain medical marijuana.  Finally, the JCC found that requiring the employer/carrier to pay for a worker’s use of marijuana would expose it to criminal liability under federal law.  As such, the JCC denied the claim for authorization of a referral to a physician to evaluate him and write him a certification for medical marijuana.

On appeal, the Court of Appeal held that an evaluation by a physician able to write a certification to access marijuana treatment would not be “medically necessary” because as a matter of law the marijuana itself is neither reimbursable nor medically necessary.  The Court went onto say that the employer must provide remedial treatment care and attendance that is medically necessary.  However, there was no dispute that the only reason for the referral was to facilitate the Employee’s effort to treat with marijuana.  The Court said that since a medical evaluation is not the same as treatment a referral to another health care provider for an evaluation to simply determine whether the employee is the right patient for a medically unnecessary or non-compensable treatment by definition would not be medically necessary.

The Court went on to discuss federal law, as well as the Controlled Substances Act, in its decision.  While this case may not have wide impact upon the workers’ compensation system in Florida, it directly addresses the use of marijuana for medical purposes under the Workers’ Compensation Statute as well as any effort to have an employer/carrier pay for an evaluation on whether or not such treatment would be medically necessary.

For more information on this issue or any other workers’ compensation issue in Florida, please contact Rayford H. Taylor, Esq. by phone at 404-954-6949 or e-mail at rtaylor@hallboothsmith.com.