Workers’ Comp Must|Cover Medical Marijuana

(CN) - Medical marijuana a doctor recommended for an injured worker's pain must be paid for by the workers' employer and insurer, the New Mexico Court of Appeals ruled.

Despite the drug's federal classification as a controlled substance, the court found that New Mexico law entitled Gregory Vialpando to reimbursement for marijuana to treat the high-intensity pain that followed failed spinal surgeries for a workplace back injury.

Vialpando met the threshold for payments under workers' compensation laws when his doctor recommended medical marijuana as reasonable and necessary for his treatment, the ruling states.

The Aug. 29 decision supports a lower court finding that Vialpando's participation in the New Mexico Department of Health's Medical Cannabis Program constituted reasonable and necessary medical care, the standard for reimbursement set by the state's Workers' Compensation Act.

A doctor cited in the lower court's 2008 compensation order said that Vialpando was taking narcotic-based pain relievers, but still suffered "from some of the most extremely high intensity, frequency, and duration of pain, out of all of the thousands of patients I've treated within my 7 years practicing medicine."

Last year, Vialpando's doctor followed rules established by the 2007 Lynn and Erin Compassionate Use Act to recommended him for the medical marijuana program.

The Court of Appeals rejected an argument from Vialpando's employer that reasonable and necessary medical services must come from a health care provider.

"By defining 'services' as including a product from a supplier that is reasonable and necessary for a worker's treatment, the regulations do not contemplate that every aspect of a worker's reasonable and necessary treatment be directly received from a health care provider. Such a requirement would be unworkable. A worker's treatment may well require services that are not available from a health care provider. The most obvious of such services may be medical supplies or equipment," the appeals court ruled.

Ben's Automotive Services, Vialpando's employer at the time of the accident, and, Redwood Fire & Casualty, its insurer, argued that medical marijuana must be treated as a prescription drug, and that the state's medical marijuana program is not a licensed pharmacist or health care provider.

The appeals court found that "medical marijuana is not a prescription drug," but if it were, "our analysis would lead to the same conclusion."

"Indeed, medical marijuana is a controlled substance and is a drug. Instead of a written order from a health care provider, it requires the functional equivalent of a prescription - certification to the program. Although it is not dispensed by a licensed pharmacist or health care provider, it is dispensed by a licensed producer through a program authorized by the Department of Health," the court wrote.

Vialpando's employer and insurer claimed that an order to reimburse him for marijuana would force them to commit a federal crime, since federal law classifies the drug as a Schedule I controlled substance.

"However, employer does not cite to any federal statute it would be forced to violate, and we will not search for such a statute," Court of Appeals Judge James J. Wechsler wrote for the unanimous three-judge panel.

Ben's and Redwood claimed that reimbursements would at the least violate federal public policy. But the appeals court rejected that, too.

"Although not dispositive, we note that the Department of Justice has recently offered what we view as equivocal statements about state laws allowing marijuana use for medical and even recreational purposes."

Subscribe to Closing Arguments

Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.

Email *

Submit