Maryland Legislature Says “Yea” To Additional Medical Presumptions, “Nay” To Medical Cannabis Reform in Workers’ Compensation Cases

The 2019 Maryland legislative session only produced one substantive law change that impacts the Maryland Workers’ Compensation framework. Additionally, two bills that did not get passed also sent conspicuous messages to practitioners within the bar.

The lone bill implicating Maryland Workers’ Compensation that was passed into Law is House Bill 595, which was approved by Governor Larry Hogan on April 30, 2019. The bill serves as an amendment to Labor & Employment Article Section 9-503 which addresses medical presumptions in workers’ compensation cases. Specifically, the bill adds additional occupational disease presumptions for specified public safety employees, namely firefighters, who contract bladder, kidney, or renal cell cancer that is caused by contact with a toxic substance encountered in the line of duty.

For any defense attorney representing local municipalities, this is an important change given the significant exposure associated with cancer claims and the immense difficulty in overcoming medical presumptions when litigating cases before the workers’ compensation commission. Effective October 1, 2019, these specified public safety employees who appear before a workers’ compensation commissioner with diagnosable bladder, kidney, or renal cell cancer will be afforded the legal presumption that said condition is due to his or her work. In turn, no additional evidence will be required in the filing of a claim for workers’ compensation. The onus now rests with the employer/insurer to rebut that presumption with a sufficiently strong piece of medical evidence. Such a presumption will not be rebutted barring a well-documented, pre-existing medical history predisposing the individual to the condition. Even with such evidence, the employer/insurer still faces an uphill battle in those cases.

Senate Bills 854 and 863 are two proposed bills specifying the use of medical cannabis in the context of workers’ compensation cases that were passed through the Senate but were not passed by the Maryland House of Delegates. However, the mere fact that these bills had significant senatorial support provides some insight into where Maryland lawmakers may be headed in the future.

Senate Bill 854 states that a covered or dependent employee is not entitled to workers’ compensation or associated benefits if the accidental injury or occupational disease was caused solely by medical cannabis and the medical cannabis was not administered or taken with the written certification of a certifying provider or the written instructions of a physician. The bill also would have altered Labor & Employment Article Section 9-660 to include medical cannabis under the list of treatment, services and medications that an employer or insurer must provide to a covered employee when directed by the commission.

Senate Bill 863 prohibited employers from requiring employees or applicants to disclose their use of marijuana and cannabis. The bill also prohibited an employer from inquiring into an employee’s use of marijuana or cannabis. An employer who violated this provision would have been subject to criminal prosecution.

The proposed bills follow a paradigm shift that has occurred within Maryland over the last 10 years in its approach to marijuana, both recreationally and medicinally. The state has quickly progressed from decriminalization of small amounts of recreational marijuana to the creation of a state-regulated medical marijuana program (Maryland Medical Cannabis Commission) to the legalization of the sale of edible medical marijuana products, which was approved in the 2019 legislative session. Though Senate Bills 854 and 863 will not be enacted into law this October, it would come as no surprise if they are revisited, and passed, in next year’s legislative session.

 

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