On June 14, 2018, the Maine Supreme Judicial Court issued a much-anticipated ruling in Gaetan H. Bourgoin v. Twin Rivers Paper Company, LLC, et al that reversed an order requiring an injured employee to be reimbursed for the cost of medical marijuana. This workers’ compensation claim is managed by Sedgwick.

In a 5-2 decision, the court held that where an employer is subject to an order that would require it to subsidize an employee’s acquisition of medical marijuana, there is a positive conflict between federal and state law, and as a result, the Controlled Substances Act (CSA) preempts the Maine Medical Use of Marijuana Act.

Background Gaetan Bourgoin sustained a work-related back injury on March 3, 1989 while working as a paper machine laborer for Fraser Papers, which was subsequently acquired by Twin Rivers. As a result of this injury, he suffers from chronic pain syndrome and remains on total disability. Over the years, he consulted with pain management specialists and attempted various treatments including opioids. He eventually stopped using narcotics due to the adverse side effects and obtained a medical marijuana certification in January 2012. He has used medical marijuana since that time to manage his chronic pain.

In February 2012, Bourgoin filed a “petition for payment of medical and related services” with the Workers’ Compensation Board seeking reimbursement for the cost of the medical marijuana. The request was opposed for several reasons, which were all rejected by the administrative law judge (ALJ), and a written decision issued in March 2015 ordered that Bourgoin be reimbursed for his medical marijuana.

Following the appeals court's affirmation of the ALJ’s decision in August 2016, Twin Rivers petitioned the state high court for review of this case. The court’s decision focused on the Supremacy Clause of the U.S. Constitution, which states, “…if there is any conflict between federal and state law, federal law shall prevail.” In reaching its conclusion, the court noted the risk of criminal prosecution for violation of the CSA immaterial. The court’s report stated, “Prosecuted or not, the fact remains that Twin Rivers would be forced to commit a federal crime if it complied with the directive of the Workers’ Compensation Board.”

Significance and potential impact Based on this decision, as long as marijuana remains an illegal substance under federal law, reimbursement of injured employees in Maine is not required. At this time, Connecticut, Minnesota, New Jersey and New Mexico may still require employers to reimburse injured employees for medical marijuana.  

At the federal level, marijuana, even for medicinal use, remains classified as a Schedule I substance under the CSA. Schedule I substances are illegal to distribute, prescribe, purchase or use outside of medical research. According to the U.S. Drug Enforcement Administration, these substances have no currently accepted medical use and a high potential for abuse.

Currently, 30 states, the District of Columbia, Guam and Puerto Rico have comprehensive medical marijuana programs, and 16 states allow the use of low tetrahydrocannabinol (THC), high cannabidiol products. 

Sedgwick’s position Our position has been and remains that benefits will not be paid for medical marijuana, unless directed by the court, and after consulting with the employer and carrier, for the following reasons:

• Marijuana is a Schedule I drug per the CSA and illegal to distribute, prescribe or purchase in the U.S.
• Marijuana is not FDA-approved to treat any medical conditions or diseases.
• The status of marijuana as a Schedule I substance prohibits the assigning of a National Drug Code or a procedure code to medical marijuana for billing purposes. 
• Several states’ legislation contains provisions indicating that workers’ compensation is not required to cover the cost of medical marijuana.
• Medical marijuana is not approved in the Official Disability Guidelines, American College of Occupational and Environmental Medicine practice guidelines, or any of the state medical treatment guidelines, and would be denied in utilization review if recommended by a treating physician.

We recommend seeking legal assistance to develop and communicate a sound company policy addressing the use and reimbursement of medical marijuana for on-the-job injuries, as well as employee use of both medical and recreational marijuana.

Though medical marijuana is legal in the majority of states, we must continue to navigate a state-by-state patchwork of laws for guidance, unless the federal government steps in to provide clarity. This year, bipartisan bills have been introduced in the House and the Senate to amend the CSA to exempt application to any person acting in compliance with state law “relating to the manufacture, production, possession, distribution, dispensation, administration, or delivery of marijuana.” Clearly, this is a rapidly evolving issue, and Sedgwick will continue to offer updates and insights regarding changes in legislation and case law.