New Mexico Marijuana – Five Joints Per Day Covered By Work Comp

October 6, 2015 By JL Risk Management Consultants

New Mexico Marijuana

Recent New Mexico marijuana laws have enabled injured workers in the state to consume five joints per day – at a maximum.

Wikimedia Commons – United States Fish and Wildlife Service

The state of New Mexico has always been very active in their allowance of medical marijuana for workers compensation injuries.

The most recent New Mexico marijuana laws enacted allow for consumption of up to two pounds per year – and that is to be reimbursed by insurance carriers and self-insured employers.

Two pounds of marijuana equates to five joints per day. The math used for conversion from 2 pounds to grams- according to Google- is 907.185 grams. According to the Denver Post’s 64 questions on marijuana, a PhD, yes, someone with a Doctorate degree figured out that an average joint is 1/2 gram.

So, 907.185 / .5 = 1814 joints per year. The daily total = 1814/365 = approximately five joints per day. The cost would be $10,904.54 per year – according to a fellow blogger.

For the average day of 16 hours – that would be a joint every three hours for just one person – and yes, paid by Workers Compensation and indirectly New Mexico employers (directly for self insureds).

As this wades into a political opinion to be drawn, I will not comment on whether I agree or disagree with the new rule that allows this much marijuana to be consumed by an injured worker. One has to draw their own conclusion. Feel free to comment on this issue.

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Medical Marijuana Basis For Discrimination Lawsuit

November 12, 2014 By JL Risk Management Consultants

Medical Marijuana Basis For Lawsuit

Medical Marijuana is now a basis for a discrimination lawsuit. New Mexico issued a very bad ruling last year that required an employer in the state to pay for a claimant’s marijuana prescription. This broke through an important barrier where marijuana is accepted as a prescription by the Workers Compensation community.

Wikimedia Commons – United States Fish and Wildlife Service

One had to wonder how long before someone alleges hiring discrimination due to the use of medical marijuana. Actually, lawsuits have been previously filed in other states that have legalized the use of medical marijuana.

The two differences with this legal action are the state is Rhode Island and the job applicant was a graduate student pursuing an internship.

According to ABC News, a textile company had refused to hire a graduate student for a two-month internship because she uses medical marijuana to treat frequent and debilitating migraine headaches, a decision her lawyer calls discrimination.

The applicant admitted to the textile company’s human resources department that she had a medical marijuana license. No drug test was ever administered. The company decided not to offer the internship specifically due to the marijuana issue.

The textile company may have been better served by using another reason to not allow the graduate student to begin her internship.

Medical marijuana will be a popular topic with Workers Compensation over the next few years as more states legalize its use. It is still considered a controlled substance by the Feds. Marijuana is still a Schedule I drug as listed by the FDA.

2020 Update on Medical Marijuana

Recreational marijuana legalization will likely create more instances of lawsuits due to discrimination for terminating an employee who has tested positive for THC. THC stays in a person’s system for up to two weeks. THC is a highly-fat soluble chemical that stores in fat cells for weeks if not months.

The recreational marijuana enforcement by employers may be worse than the “old days” of being concerned with only medical marijuana.

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Top 10 Challenge Areas – Expanded Part I

June 19, 2014 By JL Risk Management Consultants

Top 10 Challenge Areas – The First Five

The article on the Top 10 Challenges for Workers Compensation received a large amount of inter-buzz.

Two readers suggested an expansion (better explanation) of my list. I will split the Top 10 into two articles.

The first five of My Top 10 areas of challenge are:

Harder market – without investment returns, WC cannot sustain lowering price pressures
Captives/Alternative Insurance – every company wants out of the current WC system
States that have legalized marijuana – now what does that do for the workplace?
Employers need to monitor next year’s premium
Affordable Care Act- the elephant in the room for any healthcare discussion

Harder Market vs. Hard Market

I rarely disagree with NCCI. However, a few weeks ago, the published an article on the underwriting cycle that I did not agree with overall. Investment returns besides a minuscule rate of rate on interest bearing accounts drive the insurance markets. To NCCI’s credit, the current situation with a low rate of return (interest) is not enough to sustain a market. The stock markets have been doing very well. Other than bonds, carriers can produce a great rate of return on premium dollars invested in the stock market in the long term.

If the stock markets take a hard downturn and the interest rates stay low deflation would rule the day. Carriers have nowhere to go for a decent rate of return. They will have to look to their policyholders which would equate to a hard market.

Captives/Alternate Insurance

As companies grow, there now seems to be a large push to examine other methods to find WC coverage such as captives, PEO‘s, and small/large deductibles. Alternative insuring arrangements does carry a large risk especially if a company is going to retain a large amount of the premiums. The alternative market must be examined with caution.

States That Have Legalized Marijuana

Wikipedia – Jonathunder

Two recent New Mexico court decisions have shined a bright light on the problem of marijuana in the workplace. California issued a similar decision a few years ago. If marijuana is prescribed medication by a physician, will it be considered the same as any employee that happens to be taking a prescription while on-the-job? Will an employee file a “drug discrimination” grievance in that instance?

Employers Overpaying Premiums At Policy Inception

There are many articles in this blog concerning the level of payroll decreasing for certain employers. If your company has a 20% reduction in workforce, why would you pay the same premium base as last year?

Affordable Health Care Act

As I have written so much on this subject, I will refer to this article (click on the heading) on how the changes in healthcare will affect WC.

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New Mexico Shocker – Rocky Mountain High – Dangerous Barrier Broken

May 22, 2014 By JL Risk Management Consultants

Rocky Mountain High – In New Mexico

A New Mexico Court of Appeals has recently ruled that an injured employee’s Workers Compensation carrier must pay for his marijuana prescription. The ruling even noted the federal laws for medical marijuana would prohibit the use.

Picture Of New Mexico Rocky Mountain High

Wikimedia – Decumanus

According to the Santa-Fe New Mexican, The New Mexico court on Monday upheld a decision by a workers’ compensation judge that medical marijuana was “reasonable and necessary medical care” from a health care provider under terms of workers’ compensation law.

One thing that I noted from most of the buzz (no pun intended) was how well this was covered in all the Workers Comp press. The Santa-Fe New Mexican also noted that the worker had a 99% disability – how does one get a 99% but not 100% – interesting.

The dangerous barrier that this could have broken in being stoned while on the job. Over the years, I have paid and watch insurance companies lose in the courts over whether or not the alcohol or marijuana was “the proximate cause of the accident.”

Did the New Mexico Court of Appeals just allow an avenue for marijuana to be used on the job by anyone that has a medical marijuana card? The conundrum will not be the worker using it while on the job. However, will a positive marijuana test hold any water to deny a claim if the person happen to have a marijuana card? They are not that hard to obtain. Try weedmaps.com to find the nearest Dr. that will write you a RX for pot.

Wikipedia – Gorgo

Many years ago, I denied a claim due to a worker falling through an open skylight and falling in a bathtub. The spinal injury was minor, however, the area was taped off with that “DO NOT CROSS” yellow tape that he had to break to make it to the skylight.

These are two articles that I previously wrote about marijuana. Check here and here. There is going to be a rush of articles in the news on this ruling and every time there is a decision on medical marijuana.

I will try to keep the blog updated on these New Mexico and other rulings.

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Job Alcohol v. Marijuana Debate – A Great Article Readers Question

January 28, 2014 By JL Risk Management Consultants

On The Job Alcohol v. Marijuana Debate

The Job Alcohol v. Marijuana debate usually ends up with an interesting discussion. The job alcohol v. marijuana debate pits the right to privacy against the right to a safe workplace.

Vector Graphic of Job Alcohol v. Marijuana Debate Icon

StockUnlimited

A very interesting question popped up on the LinkedIn Work Comp Analysis group concerning marijuana a few days ago. As you probably have heard by now, President Obama had said that marijuana is no more harmful than alcohol. This immediately started a debate of which is worse – alcohol or marijuana.

One important point is the President did not say that pot was safer than alcohol. He basically said that it is no worse than alcohol. He did not say it was safer or more dangerous. Taking his comments one step further, should marijuana ever be excused if detected in a pre-employment or post-accident drug test?

According to most of the literature on marijuana, the most active ingredient THC stores in the body’s fat cells for quite some time after ingestion. This is the main difference which is going to be a tough area for on-the-job decisions on WC claims.

Many years ago, I was adjusting a claim where a roofer fell through an open skylight that was taped off using something similar to the yellow police tape. The claim was denied with the green light to take it to a hearing. Even though the worker was shown to be as high as a kite, the WC court decided to rule for benefits. That was the first denial I ever issued for pot.

My main point in denying the file was the yellow police tape being around the open hole in the roof. The employer decided it was best along with counsel to not appeal the case. They did not want to write bad appellate law if the case was lost on appeal.

Graphic Of Marijuana Leaf Job Alcohol v. Marijuana Debate In White Background

StockUnlimited

The one pattern I noticed on the responses to the LinkedIn question was the lack of knowledge concerning marijuana. I wanted to say up front that I am not a marijuana advocate or user. Some of the better sources for marijuana analyses are at these websites:

Drugs.com is one of the better drug interaction websites. Their marijuana info is here.
CNN’s Dr. Gupta wrote an interesting article on marijuana. Check it out here.
From the Centers for Disease Control (CDC), a study on drug levels in suicide victims is here. The only drawback to this study is the disclaimer is as long as the study.
This is actually the Whitehouse’s opinion on marijuana. See it here.

Two states (Washington and Colorado) have actually decriminalized pot. However, I do not think any state will change their views on WC laws as it pertains to weed.

This debate will go on for decades as more states such as California, Hawaii, and others attempt to fully legalize marijuana. We are unlikely to hear the end of the Job Alcohol v. Marijuana debate any time soon.

Proximate Cause – Does A Bear Smoke Pot In The Woods?

June 8, 2010 By JL Risk Management Consultants

Drugs vs. Proximate Cause

The proximate cause of an accident may not always be that obvious in a WC claim.

One area that Workers Comp insurance companies and self insureds spend a large amount of money to deny and defend claims is when an injured employee is deemed to have alcohol or drugs in their system. Many employers, TPA, and insurance carriers have a rude awakening when the employee is awarded benefits by their respective Workers Comp Commission.

Picture Of Drugs Proximate Cause In Bottle

StockUnlimited

I do not agree with the premise, but this happens often. Before a denial is issued the carrier, employer or TPA, the question has to be asked – Was the drug or alcohol in the employee’s system the proximate cause of the incident?

One of my first denials that was lost at an Industrial Commission hearing when an employee that was stoned on pot and fell through an open skylight into a bathtub. The file was denied and defended. The Deputy Commissioner awarded benefits as the PROXIMATE CAUSE of the accident was not due to the marijuana intoxication of the employee.

OK, back to the title of this post. Recently, in Montana, a worker at a tourist attraction was mauled by a grizzly bear while on the job. The worker had smoked pot just before beginning work. The worker had to enter a bear cage and was mauled by the bear.

The employer had denied the incident saying the employee was a volunteer and the fact that he smoked pot caused the accident. The Workers Compensation judge did not see it that way and awarded benefits. The judge also concluded that the proximate cause was not the worker having smoked pot.