States around the country are grappling with changing legislation and social attitudes towards medical marijuana. In New Mexico, the state’s Court of Appeals added to the national conversation by decided that an injured employee was entitled to reimbursement for medical marijuana under the state’s workers compensation law.
Gregory Vialpando sustained a lower back injury in 2000 during the course of his job at Ben’s Automotive Services. Multiple doctors examined Mr. Vialpando, and found that he had sustained a whole body impairment between 43% and 46%, and had a 99% permanent partial disability rating. He and his employer entered into a workers’ compensation payment arrangement in 2008.
In reviewing his case, Mr. Vialpando’s main doctor found that he had, “High intensity, multiple site, chronic muscle, joint, and nerve pain directly resulting from back injury, followed by failed spinal surgery and attendant myalgia/myositis from compensatory structural imbalances.” In discussing Mr. Vialpando’s pain, the doctor went on to say that he was suffering from “some of the most extremely high intensity, frequency and duration of pain, out of all the thousands of patients I’ve treated within my 7 years of practicing medicine.”
Mr. Vialpando was prescribed multiple narcotic pain relievers and antidepressants, but still suffered from excruciating pain. Finally, he was prescribed medical marijuana which afforded him relief.
He applied to New Mexico’s Workers’ Compensation Board and asked for his medical marijuana expenses to be covered or reimbursed through his workers’ compensation payments. A Workers’ Compensation Judge (WCJ) held a hearing on the issue, and found that Mr. Vialpando was authorized to take part in a medical cannabis program authorized through by New Mexico’s Compassionate Use Act (Lynn and Erin Compassionate Use Act, NMSA 1978 §§26-2B1- to 26-2B-7 (2007)).
The WCJ ordered that Mr. Vialpando pay for his own medical marijuana, and ordered his employer to reimburse him for his expenses.
The employer appealed the decision of the WCJ to the New Mexico Court of Appeals.
Court of Appeals Decision
The employer first argued that medical marijuana was not covered by the workers' compensation statute. The Court looked at the statute, and found that it authorized “reasonable and necessary health care services from a health care provider.”
The Workers' Compensation Administration (WCA) and the administrative judge in charge of the case both found that a Mr. Vialpando’s participation in a course of cannabis treatment would constitute reasonable and necessary treatment. The Court of appeals agreed.
Next, the employer argued that a medical marijuana dispensary was not an authorized health care provider within the meaning of the statute. While the Court agreed that a dispensary is not listed as an articulated type of authorized provider, the Court found that the law does allow health care to come from “any person or facility that provides health-related services as approved by the director of the WCA.” Since the WCA had approved the treatment and the dispensary, the appellate court dismissed this argument.
Alternatively, Mr. Vialpando's employer argued that medical marijuana should be viewed as a prescription drug, meaning that it would have to be provided by a licensed pharmacist or authorized health care provider. The Court of Appeals also disagreed with that argument, and found that even if marijuana were characterized as a prescription drug, it would still be covered as an authorized treatment or service under the Compassionate Care Act.
Finally, the employer brought up federal law, which still classifies marijuana as illegal under Schedule I of the Controlled Substances Act. The employer argued that providing reimbursements for the purchase of medical marijuana would be akin to forcing the employer to violate federal law.
The New Mexico Court of Appeals refused to consider this particular argument. The employer did not cite any specific law which providing reimbursement would violate, and pointed to the Department of Justice’s other advisories to states about the legalization of medical marijuana. The Court of Appeals found that the legislative intent of New Mexico’s lawmakers, as well as shifts in public opinion and policy weighed heavily on the side of allowing compensation for recognized medical treatment with cannabis.
Visit the New Mexico Court of Appeals website to read the full text of this decision.
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