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Reimbursement for medical marijuana authorized under New Mexico workers’ comp law

By Kathleen Kapusta, J.D.

Agreeing with a workers’ compensation judge (WCJ) that New Mexico’s Workers’ Compensation Act and its attendant regulations authorize reimbursement for medical marijuana, a state appeals court affirmed the judge’s order requiring an employer to reimburse an injured employee for medical marijuana used under the Lynn and Erin Compassionate Use Act. Rejecting the argument that the judge’s order was contrary to federal public policy, the court noted that the Department of Justice has recently offered “equivocal statements” about state laws allowing marijuana use for medical and even recreational purposes, and has even informed the governors of two states that voted to legalize possession of the drug and regulate its production and distribution that it would defer its right to challenge those laws (Vialpando v Ben’s Automotive Services, May 19, 2014, Wechsler, J).

Lots of pain and drugs. After injuring his back at work, the employee underwent numerous surgical procedures. Although the WCJ determined that he reached maximum medical improvement in 2008, one doctor found that he was suffering “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.” At that time, he was taking multiple narcotic-based pain relievers and multiple anti-depressant medications.

Reasonable and necessary medical care. Certified for the medical marijuana program by his health care provider and another medical doctor based on severe and debilitating chronic pain, the employee filed an application for treatment in 2013. Finding that he was entitled to “ongoing and reasonable medical care,” that he was qualified to participate in the medical cannabis program authorized by the Compassionate Use Act, and that participation in the program constituted reasonable and necessary medical care, the WCJ ordered the employer to reimburse him for his medical marijuana.

On appeal, the court first noted that while the workers’ comp Act requires an employer to provide an injured worker with “reasonable and necessary health care services from a health care provider,” the term “health care provider” in Sec. 52-4-1(H) and (O) does not include a dispenser of medical marijuana under the Compassionate Use Act. Although Sec. 52-4-1(P) does include as a health care provider “any person or facility that provides health-related services in the health care industry, as approved by the director” of the Workers’ Compensation Administration, it was undisputed that the director had not approved a dispenser of medical marijuana as a health care provider under that provision.

Regulations. Turning to the applicable regulations, the court observed that they incorporated both statutory provisions and defined health care provider as “any person, entity, or facility authorized to furnish health care to an injured or disabled worker …” pursuant to Sec. 52-4-1. The regulations further defined services as “health care services … procedures, drugs, products or items provided to a worker by an HCP [health care provider], pharmacy, supplier, caregiver, or freestanding ambulatory surgical center which are reasonable and necessary for the evaluation and treatment of a worker with an injury …” under the Act.

The court found that the regulations addressed the situation in which a health care provider recommends that a worker obtain a product — such as medical marijuana — that is reasonable and necessary for the worker’s treatment but which, because of its nature, may not be available from another health care provider. The WCJ found that the worker’s participation in the medical marijuana program constituted reasonable and necessary medical care. His health care provider recommended the services and provided the medical certification necessary pursuant to the Compassionate Use Act. A second doctor also provided a certification form.

Although the employer argued that the services were not “reasonable and necessary health care services from a health care provider” because they were provided by a program that was not recognized by the director as a health care provider, the court found that the regulations did not support this argument.  By defining services as including a product from a supplier that is reasonable and necessary for a worker’s treatment, the regulations did not contemplate that every aspect of treatment be directly received from a health care provider. The only prerequisite was that a service be reasonable and necessary for the worker’s treatment.

Prescription drug vs. services. As to the employer’s contention that the “service” here had to be viewed as a prescription drug rather than another type of service, the court noted that by definition, medical marijuana is not a prescription drug. While the employer argued that the reason that the WCJ’s order did not comply with the Act or its regulations was because the medical marijuana program was not a licensed pharmacist or a health care provider, the court found that this argument “rests on the basis that the definition of a prescription drug is the only manner by which the WCJ could order Employer’s reimbursement of medical marijuana.”

This, however, did not take into account the definition of services, which was significantly broader than the definition of prescription drug, as it includes nonprescription drugs and other products, and also includes providers other than licensed pharmacists and health care providers. “There is no basis in the regulations to declare that the definition of prescription drug is the exclusive manner to address the provision of medical marijuana to an injured worker,” the court stated.

Even applying the definition of prescription drug, the court found its analysis would lead to the same conclusion. Instead of a written order from a health care provider, medical marijuana requires certification to the medical marijuana program, the functional equivalent of a prescription. Although 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.

Drugs, products, or items. Observing the legislative intent of the Compassionate Use Act “to allow the beneficial use of medical cannabis in a regulated system for alleviating symptoms caused by debilitating medical conditions and their medical treatments,” the court noted that the legislature provided in the Act that a worker receive through an employer reasonable and necessary health care services, which the regulations define to include “drugs, products or items provided to a worker” in various ways as long as “reasonable and necessary for the evaluation and treatment of a worker.” When read together, the court viewed the “legislative intent to be that a worker’s treatment under a program authorized by the Compassionate Use Act that has been determined by a WCJ to be reasonable and necessary treatment is embraced within the Act.”

Conflict with federal law. Also rejected was the employer’s argument that because marijuana is a controlled substance under federal law, ordering it to reimburse the employee essentially required the employer to commit a federal crime. Observing that the employer did not cite to any federal statute it would be forced to violate, the court refused to search for one. Pointing out that that the state legislature passed the Compassionate Use Act “to allow the beneficial use of medical cannabis in a regulated system for alleviating symptoms caused by debilitating medical conditions and their medical treatments,” the court refused to reverse the order on the basis of federal law or public policy.