November 28, 2018
Dear Friends and Colleagues,
On November 6, 2018, Michigan voters passed Proposal 1, the Michigan Regulation and Taxation of Marihuana Act. The proposal legalized marijuana for adult recreational use. It will become effective ten days after the election results are certified (December 6th?). It may take up to one year for the Department of Licensing and Regulatory Affairs to develop rules and regulations governing the state’s recreational marijuana industry before it begins accepting applications. Commercial availability of marijuana for sale may be delayed until early 2020.
Proposal 1 allows adults age 21 and older to possess up to 2.5 ounces of marijuana on their person or up to 10 ounces in their home. Adults can grow, but not sell, up to 12 plants in their home for personal use.
Based upon an analysis of the proposal by Steven Kaplan, J.D., Michigan’s Proposal 1 allows the highest marijuana possession limits of all states in the nation. Also, it does not regulate the potency of marijuana.
According to employment and labor attorneys at Miller Johnson, Proposal 1 does not:
According to the lawyers at Miller Johnson, employers may still have policies that say what is, and what is not, acceptable workplace behavior, including the maintenance of zero-tolerance policies for their workforce. Miller Johnson recommends, however, that employers should evaluate their current prohibited substances policies to address whether there is a clear statement that marijuana is considered an illegal substance, and the form of testing and the penalty for positive tests. Miller Johnson recommends that employers consider the balance between safety and staffing when evaluating current policies, and determine whether the organization will retain a zero-tolerance policy or consider alternatives such as last change agreements.
With respect to workplace injuries, employers still have the right under MCL 418.305 to determine whether the injury was caused by the intentional and willful misconduct of the employee. If so, compensability of the injury may be disputed. If an employer can show that an injury was caused by the employee’s violation of the workplace drug policy, the worker’s compensation claim may be disputed. If the claim is disputed, it will be the employer’s burden to prove, by a preponderance of the evidence, that violation of the workplace drug policy caused the injury. Currently, there are no accurate, on-demand impairment tests for THC (marijuana) intoxication. Therefore, employers will need to do a thorough investigation and obtain circumstantial evidence that the employee was intoxicated by THC/marijuana at the time of the injury, and that the intoxication was a contributing cause to the injury. Circumstantial evidence could include eyewitness observations of erratic behavior, inattentiveness, carelessness, delayed reaction times, clumsiness, inability to follow directions, the injured worker’s statements relating to intoxication, etc., to persuade a magistrate that the injured worker was intoxicated by THC/marijuana at the time of the injury.
Where an employer would typically have accommodated work restrictions arising from an occupational injury, but a post-injury drug test is positive for THC/marijuana (even though there is no determination as to a level of toxicity) and the injured worker is properly suspended or terminated under the workplace drug policy, ongoing wage loss benefits may be subject to dispute on the basis that the injured worker’s wage loss is not attributable to the injury, but is attributable to his/her violation of the workplace drug policy, resulting in suspension or termination of employment when restrictions could have been accommodated.
If the employer is accommodating an injured workers’ post-injury work restrictions and the injured worker tests positive for THC/marijuana, resulting in suspension or termination under the employer’s workplace drug policy, reinstatement of worker’s compensation wage loss benefits would also be subject to dispute on the basis of an unreasonable refusal of accommodated work.
In summary, although the passage of Proposal 1 has resulted in freedom from state and local prosecution for possession and usage of small amounts of marijuana, the constitutional amendment does not preclude employers from disputing workers’ compensation claims where it can be proven that THC intoxication was a contributing cause to a workplace injury and/or that a violation of the workplace drug policy for testing positive for THC resulted in removal of the injured worker from available work, resulting in the wage loss.
If you have any questions or would like to discuss this matter further, please contact us at your convenience.
Last Updated on Thursday, 29 November 2018 20:02
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AN ADJUSTMENT TO THE LAW ON ALLOWABLE CHIROPRACTOR SERVICES?
Dear Friends and Colleagues:
On March 29, 2017, Senator Mike Nofs introduced Senate Bill 0282 (SB-0282) in the Michigan State Senate. It eliminates the requirement that chiropractic services provided in workers’ compensation claims be consistent with the statutory definition of chiropractic care, contained in MCL 333.16401.
The relevant definitions in MCL 333.16401 are the following:
(e) "Practice of chiropractic" means that discipline within the healing arts that deals with the human nervous system and the musculoskeletal system and their interrelationship with other body systems. Practice of chiropractic includes the following:
(i) The diagnosis of human conditions and disorders of the human musculoskeletal and nervous systems as they relate to subluxations, misalignments, and joint dysfunctions. These diagnoses shall be for the purpose of detecting and correcting those conditions and disorders or offering advice to seek treatment from other health professionals in order to restore and maintain health.
(ii) The evaluation of conditions or symptoms related to subluxations, misalignments, and joint dysfunction . . ..
However, the amendment to the statute appears to be an effort by the chiropractic lobby to allow chiropractors to provide and bill for services, vitamins, supplements, devices, etc., that do not fall within the statutory definition of chiropractic services.
The consequences of implementation of this change in the law may adversely affect employers and insurers. It may potentially require payment under workers’ compensation for therapies, treatment, etc., which do not have proven effectiveness in treating injuries and other health conditions.
If you would like to stay apprised of the legislative status of this bill, the following is a link to the Michigan Legislature’s Website and this specific bill: http://www.legislature.mi.gov/(S(iqxe01v2fjucr01ypjpp4m2p))/mileg.aspx?page=GetObject&objectname=2017-SB-0282.
Last Updated on Wednesday, 12 April 2017 19:30
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Subject: Efficacy of Treating Chronic Low Back Pain With Opioid Analgesics
6/14/16
Dear Friends and Colleagues,
The results of research summarized in an article in JAMA Internal Medicine, “Avoiding Opioid Analgesics for Treatment of Chronic Low Back Pain”, by Jane C Balantyne, MD, FRCA, suggest what many involved with work related back injuries have suspected for some time. The article concludes that, for people with chronic low back pain, “opioid analgesics provide modest short-term pain relief but the effect is not likely to be clinically important within guideline recommended doses.” (Emphasis added.) The article goes on to note that “[e]vidence on long-term efficacy is lacking.”
If you are interested in reading more, the link for the article is: http://jama.jamanetwork.com/article.aspx?articleID=2528194.
Please share this email with others who might be interested in this information.
Thank you!
Len Hickey and John Combs
Last Updated on Wednesday, 15 June 2016 19:44
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FATAL SHOOTING BY CO-WORKER ON EMPLOYER’S PREMISES NOT WORK RELATED
The following is a summary of an interesting decision issued at the trial level in July.
A member of the Workers’ Compensation Board of Magistrates, Magistrate Beatrice Logan, issued an opinion in the matter of Williams v Park Family Healthcare PC on 7/11/16. In that case, the Ms. Williams was fatally shot on the employer’s premises by a maintenance worker. The maintenance worker worked in the building and had a previous romantic relationship with Ms. Williams. Magistrate Logan held that the fatal shooting did not arise out of the course of Ms. Williams’ employment.
In finding that the fatal shooting did not arise out of the employment, Magistrate Logan relied upon the following factual findings:
Therefore, Magistrate Logan found that the fatal shooting of Ms. Williams on the employer’s premises was not compensable under the Workers’ Disability Compensation Act.
We have subsequently learned that plaintiff sought a finding that the fatal shooting did NOT arise in the course of employment so that the 3 surviving children would not be precluded by the exclusive remedy provision from pursuing a death case against the employer based on negligent failure to provide a safe work place. The DEFENDANT has appealed the decision.
The full text of the decision can be found at the following link: http://w2.lara.state.mi.us/ADMS/File/ViewDmsDocument/12986
If you have any questions or would like to discuss the ramifications of this case, please contact us at your convenience.
Last Updated on Thursday, 10 November 2016 21:05
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