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The State of New Mexico has a Compassionate Care Act which provides for medical marijuana when a patient is certified for the program by his or her health care provider. In the case ofGregory Vialpando v. Ben’s Automotive Services and Redwood Fire & Casualty, the New Mexico Court of Appeals affirmed a decision of a Judge of Compensation requiring the worker’s employer to reimburse him for the cost of medical marijuana.
Mr. Vialpando was seriously injured on June 9, 2000. He underwent multiple back procedures leading to a 99% permanent partial disability. One doctor described his pain as “high intensity multiple-site” chronic pain. Vialpando had been taking multiple narcotic-based pain relievers and multiple anti-depressant medications.
On April 8, 2013, Vialpando filed an application for approval of medical treatment for medical marijuana. nbsp; He had been certified for the program by two physicians. The Judge of Compensation found that the worker was “entitled to ongoing and reasonable medical care,” including medical marijuana, and ordered the employer to pay for the care.
The employer appealed and made several interesting arguments. First, the employer argued that the New Mexico Workers’ Compensation Act did not authorize reimbursement for the costs of medical marijuana. The court noted that an employer is required to provide an injured worker with “reasonable necessary health care services from a health care provider.” However, the court conceded that the list of health care providers does not include a dispenser of medical marijuana under the State’s Compassionate Care Act. Nor has the Director of the Division of Workers’ Compensation approved a dispenser of medical marijuana as a health care provider.
On the other hand, the Act does define “services” as “health care services, . . . procedures, drugs, products or items provided to a worker by an 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 or occupational disease. . . “ Based on this definition, the court found that medical marijuana is a product from a supplier that may be reasonable and necessary for an employee’s treatment.
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.
As for the distinction that a doctor does not “prescribe” medical marijuana, but rather the employee gets certified to the New Mexico program, the court said it is unnecessary that each and every service must be provided by a health care provider.
The employer also argued that medical marijuana should be viewed as a prescription drug, and since a doctor may not order medical marijuana, it should not be reimbursable under workers’ compensation. The court rejected this argument as well. “A doctor may not order medical marijuana but may certify a patient to enroll in the medical cannabis program.” The court said that the definition of “services” is broader than the definition of a “prescription drug.” Services include non-prescription drugs and products not necessarily prescribed by licensed pharmacists. The court did concede that medical marijuana is a controlled substance and a drug but it reasoned that it makes no difference whether a pharmacist can prescribe it because the program authorized by the Department of Health is itself licensed.
Lastly, the employer contended that the court order requires the employer to violate federal law because marijuana is classified as a Schedule I Controlled Substance and is generally illegal to use or possess. The court first observed that the employer was not specifically challenging the New Mexico Compassionate Care Act. Rather, the employer was arguing that it was committing a crime in complying with the court order.
“However, Employer does not cite to any federal statute it would be forced to violate, and we will not search for such a statute.”
This case is one of the first to deal with the employer’s obligation to pay for medical marijuana through workers’ compensation, and it will not be the last. The analysis in the New Mexico case raises complex state and federal issues. Readers are invited to give your thoughts on this decision and its implications to employers in connection with the New Jersey Compassionate Use Medical Marijuana Act.