N.M.: Employer Must Reimburse Injured Worker for Medical Marijuana

By Susan R. Heylman Jul 29, 2014

Under the New Mexico Workers’ Compensation Act (WCA), an employer and its workers’ compensation insurer must reimburse an injured worker for costs associated with the purchase of medical marijuana used pursuant to the Lynn and Erin Compassionate Use Act, the New Mexico Court of Appeals ruled.

The worker in the case sustained a low back injury in 2000 that resulted in numerous surgeries and extremely high intensity, frequency, and duration of pain. In 2013, he filed an application seeking the approval of the workers’ compensation judge (WCJ) for medical marijuana treatment under the state’s Medical Cannabis Program authorized by the Compassionate Use Act.

The WCJ found that the worker was qualified to participate in the state’s marijuana program and that the treatment was reasonable and necessary medical care. The judge ordered the worker to pay for the medical marijuana and ordered the employer and its insurance carrier to then reimburse the worker.

The employer appealed the order, arguing that the WCA did not authorize reimbursement for medical marijuana and that any reimbursement would result in it violating federal law and public policy.

The court of appeals disagreed, and it affirmed the reimbursement order. The court noted that under the WCA, an employer was required to provide an injured worker reasonable and necessary health services from a health care provider, but that the list of health care providers in the WCA’s regulations did not include a dispenser of medical marijuana under the Compassionate Use Act.

“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,” the court said. “A worker’s treatment may well require services that are not available from a health care provider.”

Accordingly, the court held that, under the WCA, the only prerequisite was that the service be “reasonable and necessary” for the worker’s treatment, not that each and every service must be provided by a health care provider.

The court rejected the employer’s argument that the order was illegal because the employer would be required to violate federal law in reimbursing the worker for his medical marijuana expenses, noting that the employer did not challenge the legality of the Compassionate Use Act or cite any federal statute it would be forced to violate. Moreover, the order did not violate public policy.

“We observe that New Mexico public policy is clear. Our state legislature passed the Lynn and Erin 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 said.

Vialpando v. Ben’s Automotive Services, N.M. Ct. App., No. 32,920 (May 19, 2014).

Susan R. Heylman, J.D., is a freelance legal writer and editor based in the Washington, D.C., area.

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