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Medical Marijuana Expense May Be Compensable Under Workers’ Compensation in Massachusetts

Insurers and employers around the United States are attempting to hold the line against paying injured workers’ expenses for medical marijuana, even in states where medical marijuana is legal. They argue that they should not be required to pay for a substance that is illegal under federal law. This issue has not yet been decided by courts in Massachusetts, but legal developments in other states indicate it is only a matter of time.

A court of appeals in New Mexico, in the case of Gregory Vialpando v Ben’s Automotive Services and Redwood Fire & Casualty, ordered an employer to reimburse an injured worker for the cost of his medical marijuana.

Vialpando had severe pain from a low back injury he incurred at work, and from the resulting failed surgeries. One doctor described him as 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 seven years practicing medicine.” Vialpando was taking narcotic-based pain relievers and anti-depressant medications, but without relief. His treating physician recommended medical marijuana.

Vialpando filed an application for approval by the Workers’ Compensation Judge (WCJ) for treatment with medical marijuana, having been certified for the program by his health care provider and another medical doctor based on his severe chronic debilitating pain. The WCJ granted Vialpando’s request and ordered his employer to reimburse him for the expenses of treatment. The employer, Ben’s Automotive Services, and the employer’s workers’ compensation insurance carrier, Redwood Fire & Casualty, moved for reconsideration.

The WCJ denied the motion, finding that under the workers’ compensation laws Vialpando was entitled to ongoing and reasonable medical care for his work-related condition. The WCJ further found that Vialpando was qualified to participate in the New Mexico Department of Health Medical Cannabis Program, authorized by the Compassionate Use Act, and that his participation in the program constituted reasonable and necessary medical care. The employer and insurer appealed.

Before the Court of Appeals, the employer argued that the workers’ compensation laws did not provide for reimbursement for medical marijuana. The Court found that such an express authorization was not necessary, since medical marijuana was reasonable and necessary for the injured worker’s treatment.

The Court also rejected the argument by the employer that the order by the WCJ was illegal because reimbursing the employee for his medical marijuana expenses would violate federal law.

The Court conceded that under 21 U.S.C. §§ 812, 822, 823(f), the federal Controlled Substances Act (CSA), marijuana is classified as a Schedule I controlled substance. This makes it illegal to use or possess except in federally approved research, with no exemption for medical use. However, the employer could not identify any federal statute it would be violating if it reimbursed the employee for the expense of medical marijuana. Therefore, the Court rejected this objection as well.

The employer also argued that the reimbursement order was against federal policy, as reflected in the Controlled Substances Act and case law. The Court replied that the United States Department of Justice, in response to the growing number of states enacting laws legalizing medical and even recreational use of marijuana, has recently identified areas where it will prioritize enforcement of federal anti-marijuana laws. Outside those areas, it would generally defer to state and local authorities. Medical use of marijuana is not one of the areas where the Justice Department prioritizes enforcement of the CSA, so the state law favoring compassionate use of marijuana would take precedence.

In sum, the New Mexico Court of Appeals ruled that the injured employee was entitled under the workers’ compensation laws to reasonable medical treatment for his severe pain from his work injury, that medical marijuana had been recommended by his health care provider, and that the employee met the requirements to participate in New Mexico’s medical marijuana program.

In addition, the employer would not be required to violate any federal law in order to reimburse the employee for the cost of his medical marijuana, and such reimbursement would not be against federal policy. For all those reasons, the Court affirmed the lower court’s decision that the employer reimburse the employee for the cost of his medical marijuana.

The Massachusetts Legislature has legalized medical marijuana by enacting the Humanitarian Medical Use of Marijuana Act of 2012. When injured workers’ health care providers recommend medical marijuana for treatment of the symptoms from their work injuries, the compensability of the expense of medical marijuana under workers’ compensation laws will inevitably become an issue for workers, employers, and insurers in Massachusetts.

While you concentrate on recovering from your work-related injury, let the experienced workers’ compensation lawyers at Kantrovitz & Associates focus on making sure you obtain the benefits that you and your family deserve. For a free consultation and evaluation of your case, contact Kantrovitz and Associates today.

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