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Giles & Ransome v. Kalix

Superior Court of Delaware

October 9, 2018

GILES & RANSOME, Appellant/Employer-Below,
PATRICK KALIX, Appellee/Employee-Below.

          Submitted: June 22, 2018

         Upon Consideration of Industrial Accident Board Appeal.

          H. Garrett Baker, Esquire, Elzufon Austin & Mondell, P.A., Attorney for Employer-Below Appellant.

          Donald E. Marston, Esquire, and James R. Donovan, Esquire, Doroshow Pasquale Krawitz & Bhaya, Attorneys for Employee-Below Appellee.


          Charles E. Butler, Judge.


         Before the Court is an appeal of an Opinion and Order issued by the Industrial Accident Board in the above matter. While the issues on appeal are fairly straightforward by litigation standards, the case illustrates some cutting edge issues likely to arise when the law must accommodate the emergence of medical marijuana. A brief history is in order.


         Mr. Kalix was a diesel mechanic, employed by Giles & Ransome in 2005 when he injured his back in a workplace accident.[1] The back injury resulted in three separate surgeries over the next few years, all performed by Dr. Bose.[2] Mr. Kalix continued to experience severe back pain, treated with various and sundry pain relievers.[3]

         During this same period, Kalix was consuming marijuana in its "prelegal" form, purchased from illegitimate sources, of unknown quality and smoked as a pastime.[4]

         Eventually, Kalix became interested in medical marijuana. He asked his doctor to authorize him to purchase it through Delaware's first medical marijuana dispensary.[5] By this time, his primary means of pain relief was OxyContin and other narcotics.[6]

         Because of his medical problems, Kalix knew a number of physicians.[7]Neurologist Dr. Bruce Grossinger is the one that signed Kalix's application for a medical marijuana card in April, 2016.[8] From the testimony, we learned that the application for a medical marijuana card is then sent to the Delaware Division of Public Health, which processes and issues the cards.[9]

         But once the medical marijuana card is obtained, the process becomes quite different from other medicines typically administered by prescription.[10] The card entitles the holder to go to the medical marijuana dispensary and choose his/her own method of marijuana ingestion and dosage, up to 168 grams (six ounces) per month, with no other limitation.[11] While the physician promises to monitor usage in the application process, the physician does not control dosage or frequency as she/he would in a typical pharmaceutical setting.[12] The patient and the clinic decide how much of what strain of marijuana and in what form the patient should take it and how often.[13] In this case, this flexibility caused the employer a number of concerns raised below.[14]

         Perhaps equally concerning to the employer was the process by which Kalix got the card. Dr. Grossinger signed off on the medical marijuana card application even though he had not seen Kalix for close to 2 years.[15] For reasons not clear in the record, a different doctor in Grossinger's office, Dr. Silberman, performed a substance abuse "risk assessment" several months after Kalix had received his marijuana card.[16] Dr. Silberman found Kalix to be at "high risk" for abuse of the marijuana. But shortly after speaking to Dr. Grossinger, Dr. Silberman amended his finding from "high risk" to "no risk" for abuse.[17] This was, perhaps understandably, a source of contention in the hearing before the Board. But whether at high risk for abuse or no risk, it appears that a medical marijuana card is available even to historical substance abusers, or at least that historical abuse is not an absolute bar.

         In addition to the deposition testimony of Drs. Grossinger and Silberman, the Board heard live testimony from Dr. Townsend, a board certified neurologist, who testified on behalf of the employer.[18] Having read the transcript, the Court agrees with the Board that put it pretty succinctly: "Dr. Townsend essentially agreed that medical marijuana was a reasonable treatment modality."[19]

         Once Kalix got his authorization to shop for marijuana at the dispensary, he began experimenting with different THC and CBD contents. He testified that this was all with a view to figuring out what dosage/active ingredients gave him the most pain relief.[20] The employer took the position at the hearing that Kalix was abusing the prescription, making many visits to the dispensary and consuming prodigious amounts of marijuana in the first 6 months of his authorization .[21] Kalix ran up over $21, 000 in medical marijuana costs in the year from May, 2016 to the hearing in May, 2017. [22] While his monthly consumption never exceeded the 168 gram per month maximum, it was still quite high in the first six months of the prescription.[23]

         Kalix testified that once he got his content and dosage figured out, he was able to moderate his consumption and, by the time of the hearing, he was consistently consuming about 50 grams per month.[24] Dr. Townsend agreed that 50 grams per month sounded reasonable to him, a conclusion the Board adopted as well.[25]

         The employer maintains that Kalix's high dosage of marijuana consumption in the early months of his legal access to marijuana was not dosage, mode and quality experimentation, but rather drug abuse, pure and simple. As the Court understands its argument, the employer is not so much upset with Kalix's consumption in excess of 50 grams as he experimented, but rather that his consumption was so extreme that it cannot possibly be attributed to experimentation. This is why, for the employer, the discredited doctor's testimony about his risk for substance abuse is important: Kalix is a habitual, long term marijuana smoker who was given the keys to the dispensary, took advantage of it, and now wants the employer to foot the bill for his drug abuse.

         At the Board, the employer complained that it should not be saddled with the bill for Kalix's drug abuse-or dosage and quality experimentation-depending on one's characterization, when his monthly purchases were close to 160 grams per month. After all, the expert and the Board found that about 50 grams was all that was "reasonable and necessary."[26] The Board recognized that establishing the reasonableness of the costs "is in fact a more problematic exercise because medical marijuana is not within the Healthcare Practice Guidelines nor is it part of the fee schedule, see 19 Del. C. §2322B."[27] In "normal" prescription drug circumstances, the Administrative Code provides specific caps on payment according to the "Average Wholesale Price" of the drug, but no such schedule exists for a prescription for marijuana.[28] So in the absence of "legislative guidance," the Board elected to order the employer to reimburse the claimant for the full expense of his experimentation in dosage and frequency, even that in excess of the 50 grams per month Dr. Townsend had found "reasonable."[29]


         When reviewing a Board decision, we review for errors of law and substantial evidence to support the Board's factual and legal findings. "Absent error of law, the standard of review for Industrial Accident Board's workers' compensation decision is abuse of discretion."[30] Moreover, "The appellate court 'does not sit as a trier of fact with authority to weigh the evidence, determine questions of credibility, and make its own factual findings and conclusions.' Those functions are vested in the 1AB."[31]


         It seems to the Court that there are two ways the Board could have gone here: limit the claimant to reimbursement of 50 grams per month that Dr. Townsend testified to be a reasonable, normal dose, or allow reimbursement for the claimant's "experimental period" that was a good deal in excess of 50 grams per month. How the Board reached its decision says much about how the Board viewed the conflicting arguments whether Kalix's heightened consumption period was a function of drug abuse or legitimate experimentation. The Board opted for the latter.[32] This was a legitimate choice among the available explanations for Kalix's large consumption. The employer's continued attack on those findings does not negate the deference the reviewing court gives to the Board, particularly in matters involving witness credibility.

         The issue on appeal is not whether the Board chose correctly, but rather whether its finding is supported by substantial evidence. Where the evidence is conflicting, it is not for this Court to reweigh the credibility of witnesses or make its own factual findings[33] The narrow question is whether the Board's conclusions were supported by substantial evidence. The determination of medical expenses as "reasonable and necessary," so as to be covered by the employer, is in the Board's discretion.[34] The fact that the Board might have concluded otherwise, or there was other evidence in opposition to the evidence credited by the Board does not negate the limited nature of appellate review of Board decisions.[35]

         Likewise, the employer's demand to limit the reimbursement to the 50 grams per month Kalix ultimately found relief with is an unrealistic restriction on the nature of marijuana as medicine and the normal medical practice of experimenting with pain relief. The employer contends there is no space for the patient to experiment with dosages and medications. But doing so is completely reasonable and necessary in the field of medicine generally when prescribed by a doctor.[36] The employer would place a restriction on medical marijuana that would not even be considered if the drug were, for example, ...

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