In workers' compensation, marijuana has been a hot topic for the last several years. Seminar after seminar, and expert after expert have addressed the legal, social, and medical implications of this subject. I have even written about the substance a few times, such as Marijuana May Be a Problem, You Think? Measuring Marijuana Intoxication, and So Federal Law Matters in Colorado.
Back in September, I participated in the inaugural "Hot Seat" webinar, and it was a discussion of issues regarding workers' compensation and the implications of drug formularies, marijuana and more. That program was prefaced in The Hot Seat, Opioids, Marijuana and More. As noted, a major distinction in the Hot Seat is that it is unedited, unscripted and unrehearsed. The guests know the topic before hand, and the program title might suggest some lines of inquiry, but once the cameras come on it is just a free-flowing conversation about important workers' compensation issues.
The actual program on September 29, 2017 was a great success. Hundreds tuned in. Bob Wilson wrote about it on October 1, and noted I would "soon" be following up as well. Ahem, that took a little longer than I perhaps intended; this post results from long reflection and contemplation, I have visited the "play back" and digested the comments of both the guests and the viewers.
Marijuana is a subject on which there sometimes seems scant middle ground. It appears that many people have their feelings and have reached their conclusions regarding marijuana, either pro or con. As with any issue though, perhaps there is also a population on more of a "middle ground." Some express ambivalence about the subject, and others perhaps care but have merely not arrived at a conclusion as yet. It is a struggle to understand whether there is in fact polarization and conflict, or whether that merely attracts the attention.
Mr. Pew stated that most of us come to marijuana with a bias, perhaps from our own experiences with it or from our perceptions of people we have known (or suspected) that used it. Hollywood portrayal of users was mentioned in that discussion. One attendee disagreed: "I don't agree that everyone comes in with a bias. The real issue is whether the studies show that there is a true benefit for the treatment of chronic pain etc."
The main take-ways from September were essentially that marijuana is not going away, and that it will become increasingly pertinent in workers' compensation. The financial issues are perhaps becoming less threatening as vendors and payers seem to be adapting to the complications of federal banking laws. There is apparently no fear of federal law enforcement having any significant effect. There is perception that pot is cheaper than opiods, and that money spent on pot is not included in the calculation of Medicare set-asides. Those are interesting financial points.
Mark Pew, the @RxProfessor, concluded that there are six documented cases of marijuana being provided by workers' compensation jurisdictions. One attendee commented to add a seventh. That is an interesting aspect of the live webinar format, attendees can be part of the discussion. The marijuana development began with a New Mexico claim that received significant discussion and publicity thereafter.
Though there are only the seven discussed jurisdictions, Mr. Pew said "I'm convinced that there are other states with pears paying for marijuana already." He concluded that the analysis leading to that decision was one of "reasonableness" and not so much a conclusion of efficacy. In this regard, it seems that both Mr. Pew and Commissioner Brannen find common ground regarding non-anecdotal proof of patient efficacy.
The discussion became intertwined with vocabulary distinctions and some seemingly interrelated emotions. There are those who take umbrage at the use of terms like weed, dope and even "marijuana." They contend that this substance must be referred to only as "cannabis." While news outlets such as the Baltimore Sun, Reuters, and U.S. News and World Report refer consistently to "medical marijuana," there are those who have seemingly visceral reactions to "medical marijuana," and insist instead that any discussion be about "cannabis." The Rolling Stone prefers "medical pot." In this regard, one commented "Stop calling it pot or marijuana, if its medicinal its cannabis and not smoked."
Despite this seeming war about what words are acceptable, it seems that the media has accepted "marijuana" as the description of choice. It seems doubtful that any effort will succeed in walking that back to adoption of the "cannabis" preferred by those commenting during the Hot Seat. It seems instead that "marijuana" is a term in the debate to stay, although individuals will certainly make their own word choices.
Mr. Pew noted that marijuana acceptance seems to be growing, with 93% of respondents in a recent survey favoring medical marijuana. However, he cautioned that most medical cannabis does not include a product that is smoked (consistent substantively with the vocabulary debate, but still using "marijuana"). He says the "medical marijuana" tends instead to be either edible or an oil.
Some of these products with "derivatives" provide effects of marijuana constituents (like THC) without the "high" associated with smoking. Mr. Pew expressed that the associated "high" and concerns about a "secondary gain" have impeded acceptance of medical marijuana. In light of the vocabulary discussion above, that term itself may be an impediment to some. One Hot Seat comment addressed this "my understanding if cannabis it is not smoked thus does not screen through urine as does not generate a high like smoked."
The smoking may be a valid concern. Is it practical to worry that people might consume a prescribed substance for effects beyond the original purpose of the prescription? The federal government thinks that is a potential, and claims that medicinal misuse has increased in recent years. If misuse can be an issue with opioids, depressants, and stimulants that are already in the legal market and prescribed, there seems some validity to concerns that a new market entrant like medical marijuana could raise similar concerns. It seems likely that there is at least merit in discussing the potential of secondary gain. One Hot Seat comment noted that "If recreational marijuana is legalized, does that make the medical argument moot? Kinda like medical scotch."
At a seminar in the spring, I challenged the audience to name any other medical treatment that is also used for non-medical, recreational, reasons. An attendee proudly exclaimed "Viagra." That example fails, of course, as the drug is administered for a medical reason, which has the effect of restoring function, which in turn allows or enhances engagement in a non-medical activity. However, the same could be said of a patient taking Flexeril, which loosens inflamation, and allows the patient to engage in a flag football game. Examples abound in this regard, and the Viagra example simply does not hold.
Perhaps a valid example is "massage therapy." That is a modality that is prescribed for people with soft tissue injury, and it provides relief of particular symptoms. The same modality is also used by people without injury, who nonetheless enjoy some relief and relaxation from the process. There may be other modality examples. However, it is rare that any substance available without a prescription is also used by prescription. The "medical scotch" point is perhaps illustrative of perceptions in this regard.
Mr. Brannan, @wrbrannen, noted that there is no medical proof demonstrating the efficacy of marijuana. There has been much discussion of the absence of science. Some claim that this absence is due to the government's prohibition stance, and the resulting lack of availability of various marijuana strains for testing, study and publication.
The medical proof versus anecdotal belief is also perhaps consistent with scientific conclusions that reasonable volume of the relief afforded by any modality may be influenced by whether a patient has faith and belief in it. In other words, if the patient does not believe something will help, it likely won't, and vice-verse. This so called "placebo effect" has been documented over the years.
In that vein, some workers' compensation experts have voiced the argument that they do not care if any modality "works," but only if the patient believes it works. That has been applied to a variety of modalities that employers have provided despite perceived equivocal scientific proof of efficacy, or their own skepticism regarding a modality.
The Hot Seat focused on this efficacy issue with discussion of the New Mexico decision ordering workers' compensation to reimburse the patient for his marijuana purchases. The conclusion seemed to be, in large part, that the pot (this was smoked) provided relief for that patient, according to his subjective reporting, and therefore it must be medically necessary for that patient. On that anecdotal conclusion of efficacy, a system change occurred, and it has begun to spread. The Hot Seat discussion focused on the establishment of workers' compensation system responsibility without scientific proof, per se.
While Mr. Pew sees this course as inevitable, Mr. Brannen returned to the dearth of scientific proof regarding efficacy. The lack of science, he says, means that it is too early to make decisions regarding medical marijuana. He noted that increasingly workers' compensation systems are governed by medical treatment guidelines and prescription formularies. Mr. Brannen notes that even if the products are legalized (a change in the federal posture), that those guidelines and parameters may nonetheless exclude (or inhibit) the products from workers' compensation.
Bob Wilson noted presentations he has seen regarding administration of the "oil." He says he has witnessed video evidence of patients being administered the derivatives (oil), and visible improvement in appearance." Mr. Wilson concedes these are likewise anecdotal, and not necessarily scientific outcomes, but notes that they are powerful, visual examples and that they may influence the ongoing debate.
Throughout the discussion, I persistently suspected that a great deal of the ongoing debate comes back to vocabulary. Mr. Pew pointed out that there are already FDA approved medications that use marijuana-derived substances. There seems to be significant acceptance of the efficacy of the "oil" that has generated significant publicity (and was apparently what Mr. Wilson witnessed). But, these are not "marijuana," "dope," "pot," or even perhaps "cannabis." Would the public perception be different, would the debate calm, if the smoking and the "high" were off the table? Would the analysis be simplified if constituent derivatives were incorporated into non-smokable, non-high-producing forms, which had different names?
Admittedly, FDA approval of the use of derivatives in medication seems at odds with the government's listing of marijuana as a Schedule I substance, which includes marijuana, heroin, ecstasy, and meth, according to the DEA. But heroin is similarly an opium derivative, an "opioid." and seemingly not absolutely distinct from the plethora of other opium derivatives, natural and synthetic, that are prescribed by physicians daily. Is that derivative nature a distinction that might quell or just modify the debate?
Thus, perhaps is it possible that some products may be appropriately constrained ("marijuana" meaning something smoked and producing a "high"), while the other might be approved ("cannabis oil" meaning something consumed and producing no "high")? Perhaps that would be a distinction as logical as the Heroin ban compared to opioid prescription availability?
At the end of the day, the real point of the Hot Seat was the exchange of ideas. While I feel that I have invested significant effort in understanding the American drug crisis and the marijuana debate, the fact is I learned from the Hot Seat. There was no PowerPoint, no rehearsed speeches, and no handouts. But this unedited, unscripted, and unrehearsed discussion was interesting.
Oh, there were some notable issues with the platform. Some attendees' companies would allow access to YouTube, which blocked their participation. Some also had issues with the browser selection. But, we live and learn. The next Hot Seat will be presented on a different platform. Stay tuned for details on that change, and the greater accessibility it promises.
But overall, the reactions seemed positive. Some said:
Actually, really like this format. Great job, guys!
Maybe next time we could have a q&a format
Good job - enjoy the weekend!
And, the conversations continue. On January 5, 2017 two workers' compensation attorneys Robert Rassp and Stuart Colburn will join us to discuss the ethical issues in workers' compensation relationships. Questions will be asked, and perspectives explored. Click here to register. I have seen these two on stage before, and they definitely have their opinions and positions. Whether you agree with either, it is likely that they will make you think. And perhaps that is what this system of systems needs the most, honest discussion, debate, and expression of thoughts.