Full Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D19-1684 _____________________________ PATRICK SHAWN JONES, Appellant, v. GRACE HEALTHCARE, Appellee. _____________________________ On appeal from an order of the Office of the Judges of Compensation Claims. Mark A. Massey, Judge. Date of Accident: June 18, 2001. June 30, 2021 TANENBAUM, J. Patrick Shawn Jones challenges the denial of his petition for benefits. The petition sought authorization for what Jones characterized as a “referral for Medical Marijuana.” Under Florida law, marijuana is not reimbursable within our worker’s compensation system. Moreover, extant federal law—which we are oath-bound to follow—characterizes marijuana as having no accepted medical use and makes all possession and use of it illegal throughout the United States. In turn, a referral to a physician authorized to prescribe medical marijuana, including even just for an evaluation of whether the employee is a good candidate for marijuana treatment, could not—under any circumstances—be “medically necessary,” as that term is defined and used in section 440.13, Florida Statutes. We affirm. I. Jones injured his lower back in a work-related accident in 2001. His employer, Grace Healthcare, accepted compensability and authorized Dr. Allan Honculada to provide pain management for Jones’s diagnosed chronic pain syndrome. In 2017, after treating with oral pain medications for sixteen years, Jones complained about the side effects of those medications and asked Dr. Honculada about trying medical marijuana to control his pain. Dr. Honculada indicated that he was not in a position to “prescribe” marijuana, so he wrote Jones a referral to a doctor ostensibly qualified to examine Jones and write him a certification to access marijuana in accord with subsections three and four of section 381.986, Florida Statutes (2018). Jones sought authorization for that referral, and Grace Healthcare denied the request. At the final hearing on his petition before a judge of compensation claims (“JCC”), Jones presented testimony from Dr. Honculada and his independent medical examiner, Dr. Barry Gordon. Both doctors concluded that the referral for a medical marijuana evaluation was medically necessary and causally related to Jones’s workplace accident. Grace Healthcare presented no contrary testimony; instead, it argued that state law precludes marijuana from being reimbursable and federal law prohibits an employer from paying for medical marijuana. In the final order, the JCC concluded that “medical marijuana is a medically necessary benefit to help [Jones] reduce or eliminate, and avoid the long-term side effects of, continued and indefinite use of oral pain medication.” Nevertheless, the JCC concluded that section 381.986(15)(f), Florida Statutes, which provides “[m]arijuana . . . is not reimbursable under chapter 440,” relieved an employer or carrier of the obligation to pay for medical marijuana for an injured worker. The JCC also determined that the statute prohibited reimbursement for the initial and any later evaluations by a qualified physician to obtain the certification 2 necessary to obtain medical marijuana. Finally, the JCC found that requiring Grace Healthcare to pay for or facilitate a worker’s use of marijuana would expose it to criminal liability under federal law. 1 Ultimately, the JCC denied Jones’s claim for the authorization of a referral to a physician able to evaluate him and write him a certification to access medical marijuana. Jones moved for a rehearing, arguing that the JCC misapplied section 381.986(15)(f) to deny his claim because the JCC overlooked the fact that Jones was not seeking payment for medical marijuana; instead, he was just seeking reimbursement for an evaluation by a physician who could write a certification for him to access the drug. The JCC denied the motion, rejecting Jones’s distinction between payment for the actual purchase of medical marijuana and paying for a physician to evaluate whether Jones was a candidate for medical marijuana. We now have Jones’s appeal of the JCC’s ruling. II. The JCC’s disposition turned on an application of law. Upon our de novo review, we agree with the JCC that Grace Healthcare does not have to provide reimbursement for a referral to a physician authorized to prescribe marijuana. We get there, however, via a slightly different analytical route. See Robertson v. State, 829 So. 2d 901, 906 (Fla. 2002) (“[T]he ‘tipsy coachman’ doctrine[ ] allows an appellate court to affirm a trial court that ‘reaches the right result, but for the wrong reasons’ so long as ‘there is any basis which would support the judgment in the record.’” (quoting Dade Cnty. Sch. Bd. v. Radio Station WQBA, 731 So. 2d 638, 644 (Fla. 1999))). Specifically, an evaluation by a physician able to write a certification for Jones to access marijuana treatment could not be medically necessary because as a matter of 1 The JCC also found that Jones failed to prove waiver by Grace Healthcare. See § 440.13(3)(d), Fla. Stat. (2001) (providing that an employer “consents to the medical necessity” of a medical treatment if it does not respond to an authorization request regarding a referral for that treatment within three business days). 3 law, the marijuana itself is neither reimbursable nor medically necessary. To be sure, Grace Healthcare must provide to Jones “remedial treatment, care, and attendance” that is “medically necessary.” § 440.13(2)(a), Fla. Stat. (2001); see also id., (2)(b). Before a medical service can be considered medically necessary, however, it must be tied to treatment for Jones’s injury and be “consistent with the location of service, the level of care provided, and applicable practice parameters.” § 440.13(1)(m), Fla. Stat. (2001). It should “be widely accepted among practicing health care providers, based on scientific criteria, and determined to be reasonably safe.” Id. Here, though, Dr. Honculada already was treating Jones for pain with prescription medications widely accepted among practitioners for pain management, and Grace Healthcare provided reimbursement for those medications. There is no dispute, then, that the only reason for the referral was to facilitate Jones’s effort to treat with marijuana. That fact proves fatal to Jones’s claim. Jones wants us to distinguish the service he seeks—an evaluation for certification that will lead to marijuana treatment— from the treatment itself. This is a false distinction, and we reject it, just as the JCC did. The statutory definition of “medically necessary” ties the requested medical service to the treatment of the employee’s injury. A medical evaluation is not the same as treatment, so there can be no assessment of the medical necessity of an evaluation without looking at the treatment objective behind that evaluation. If a referral to another health care provider for an evaluation is simply to determine whether an employee is the right patient for an otherwise medically unnecessary or non- compensable treatment, then under the statutory definition, the referral cannot be medically necessary. Accord ch. 2003-412, § 15, at 39, Laws of Fla. (adding clause to § 440.13(3)(c), Florida Statutes, that requires any referral to a health care provider “be made in accordance with practice parameters and protocols of treatment as provided for in this chapter”). That is the case here. As the JCC aptly observed, the Legislature directed that marijuana “is not reimbursable under chapter 440.” § 381.986(15)(f), Fla. Stat. This statutory 4 proscription makes the treatment objective of the evaluation— acquisition of marijuana—indisputably not reimbursable. We in turn easily conclude that there can be no medical necessity in an evaluation tied to that treatment. 2 Federal law requires the same conclusion. Notwithstanding the unrebutted testimony from Jones’s witnesses, federal law provides that marijuana is not safe and has no use in medical treatment. The Controlled Substances Act (“CSA”) classifies marijuana as a Schedule I substance. 21 U.S.C. § 812(c), Sched. I(c)(10). The CSA defines a Schedule I substance as one that has “a high potential for abuse,” “has no currently accepted medical use in treatment in the United States,” and lacks safe use even under medical supervision. 21 U.S.C. § 812(b)(1). Indeed, mere possession of marijuana is a federal crime everywhere in the United States. See 21 U.S.C. § 844(a) (providing criminal penalties for “simple possession” of marijuana); cf. 21 U.S.C. § 841(b)(1)(B)(vii), (D), (E)(4) (providing criminal penalties for distribution and possession with intent to distribute marijuana). Although the CSA requires periodic updates of the schedules of controlled substances, marijuana has remained a Schedule I drug since the CSA’s enactment in 1970. See 21 U.S.C. § 812(a); Gonzales v. Raich, 545 U.S. 1, 15 n.23 (2005). 3 2 This is so despite the parties’ effective stipulation that it is, and it would be true even in the face of a waiver by the employer or carrier. One or both parties cannot agree to a determination of a factual matter that runs contrary to a determination required by law. Cf. Trejo-Perez v. Arry’s Roofing, 141 So. 3d 220, 223 (Fla. 1st DCA 2014) (noting that “unrebutted medical testimony can be rejected . . . so long as there is some reasonable basis in the record that casts doubt on the testimony” (citing Wald v. Grainger, 64 So. 3d 1201, 1206 (Fla. 2011))). 3 Notably, just several years ago, the U.S. Department of Health and Human Services once again concluded from scientific analysis that marijuana has no accepted medical use and is unsafe; and based on that conclusion, the Drug Enforcement Administration rejected another petition to move marijuana from Schedule I. See Denial of Petition to Initiate Proceedings to 5 Even though some states—including Florida—permit the purchase, possession, and use of marijuana for medical purposes, federal law must prevail in circumstances such as this. We are bound by the United States Constitution to apply the CSA over a provision in the Florida Constitution to the contrary. As the federal constitution commands, the “Laws of the United States . . . shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” Art. VI, U.S. Const. (emphasis supplied). We cannot reverse—as Jones would have us do—the JCC’s order in reliance on an undisputed characterization of medical necessity that directly conflicts with clear federal law. Cf. Ledoux-Nottingham v. Downs, 210 So. 3d 1217, 1221 (Fla. 2017) (observing that when federal law conflicts with Florida law, federal law controls under the Supremacy Clause). Simply put, Jones cannot force Grace Healthcare to pay for an evaluation by a health care provider that has as its sole purpose the facilitation of marijuana treatment, which is not reimbursable and has no accepted, safe, medical use. As a matter of law, the evaluation is not, and cannot be, medically necessary. AFFIRMED. RAY, C.J., and ROWE, J., concur. _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ Reschedule Marijuana, 81 Fed. Reg. 53,687, 53,688–53,766 (Aug. 12, 2016). 6 Nicolette E. Tsambis of Smith, Feddeler, Smith, P.A., Lakeland, for Appellant. Christopher J. DuBois and Mary E. Cruickshank of DuBois & Cruickshank, P.A., Tallahassee, for Appellee. 7