Medical Marijuana: Reasonable and Necessary Medical Treatment for Pain?
Appellate Division of Maine’s Comp Board Orders Two Employers to Reimburse Workers for Treatment Costs
In two separate decisions, the Appellate Division of Maine’s Workers’ Compensation Board recently affirmed two ALJs’ decisions requiring employers to reimburse injured workers for the costs associated with the reasonable and proper use of medical marijuana authorized under the Maine Medical Use of Marijuana Act (MMUMA) [see Noll v. Lepage Bakeries, Inc., Me. W.C.B. No. 16–25 (App. Div. en banc Aug. 23, 2016) and Bourgoin v. Twin Rivers Paper Co., LLC, Me. W.C.B. No. 16–26 (App. Div. en banc Aug. 23, 2016)]. In both cases, the Appellate Division cast aside contentions by the employers that the ALJs’ orders put them at risk of federal prosecution because the purchase, sale, and possession of marijuana, even for medical purposes, remains illegal under the Controlled Substances Act, 21 U.S.C.A. §§ 801–904. The Appellate Division was also not persuaded that a provision in the MMUMA exempting “private health insurers” from paying for medical marijuana was sufficiently broad to aid the employers.
Background in Noll v. Lepage Bakeries, Inc.
Noll sustained a low back injury, received treatment from various medical care providers, and continued to have significant pain. Several physicians, including the employer’s § 207 medical examiner, opined that Noll was an excellent candidate for medical marijuana treatment. The medical examiner added that the use of marijuana would likely mean the worker could discontinue other pain medication.
The employer countered with two primary arguments:
- That applicable federal laws put the employer at risk of prosecution because the purchase, sale, and possession of marijuana, even for medical purposes, remains illegal under the Controlled Substances Act, 21 U.S.C.A. §§ 801–904; and
- That the employer, as a self-insurer, qualified as a “private health insurer” under § 2426(2) of the MMUMA, which provides that a “private health insurer” may not be required to reimburse a person for the costs associated with the medical use of marijuana.
ALJ Unconvinced by Employer’s Arguments
Among the reasons for siding with Noll, the ALJ indicated the risk of prosecution under federal law was not sufficiently realistic to warrant denial of Noll’s petition. The ALJ added that the employer had failed to identify any provision of the Controlled Substances Act that would render the conduct at issue illegal. The ALJ also found that a self-insurer was not a “private health insurer” under the MMUMA.
Appellate Division Agreed with ALJ
The Appellate Division (“AD”) acknowledged that the MMUMA was at odds with federal law and that the latter did not authorize marijuana use, even for medical purposes. Citing Larson’s Workers’ Compensation Law, Ch. 94, § 94.06, the AD observed that the only workers’ compensation decisions specifically permitting reimbursement for medical marijuana were from New Mexico and that three separate New Mexico Court of Appeals panels had authorized reimbursement for medical marijuana treatments for injured workers.
The AD observed that in the principal New Mexico case, Vialpando v. Ben’s Automotive Servs., 331 P.3d 975 (N.M. App. 2014), the appellate court affirmed the WCJ’s decision based on the employer’s failure to identify any particular provision of the Controlled Substances Act that would be violated by reimbursement, and it declined to search for such a statute. The AD also noted that the New Mexico court found the expressions of public policy in federal law to be equivocal at best, noting that although marijuana remained illegal under the Controlled Substances Act, the Justice Department had indicated that interfering with state medical marijuana laws was not one of its enforcement priorities.
Employer as Self-Insurer
As to the employer’s status as a self-insurer, the AD continued that in spite of the employer’s arguments to the contrary, the plain meaning of “private health insurer” in 22 M.R.S.A. § 2426(2)(A) did not include an employer who was self-insured for purposes of workers’ compensation. The AD acknowledged that “private health insurer” was not defined in the MMUMA, nor elsewhere in Maine statutory law. It added, however, that ordinarily the Maine Worker’s Compensation Act included “self-insurer” within the definition of “employer,” not within the definition of “insurance company.”
Although not an issue in the case, the AD mused about whether an employer with standard workers’ compensation coverage through an insurer could be required to reimburse an injured worker for medical marijuana. Parsing its words carefully, the AD indicated that workers compensation insurance is generally characterized by statute as “casualty” insurance, not “health” insurance.” The AD stressed that if the Legislature intended, it could have explicitly exempted workers’ compensation insurance carriers and self-insured employers from the obligation to reimburse injured employees for costs associated with medical marijuana claims under the Workers’ Compensation Act. It did not, of course, do so.
Bourgoin v. Twin Rivers Paper Co.
In Bourgoin, the employer appealed from an ALJ’s decision granting the injured worker’s Petition for Payment of Medical and Related Services. The ALJ specifically rejected the medical findings of an IME appointed pursuant to 39-A M.R.S.A. § 312 (Supp. 2015), concluding that in the instant case, the use of medical marijuana constituted reasonable and proper medical treatment under 39-A M.R.S.A. § 206 (Supp. 2015). It ordered the employer to reimburse the worker for costs associated with its use.
Similar to the situation in Noll, the employer contended the ALJ erred because:
- The use of marijuana contravened the federal Controlled Substances Act, 21 U.S.C. § 801 et seq.
- The order violated the restriction barring private health insurers from paying for medical marijuana set forth in the MMUMA;
- There was insufficient clear and convincing evidence to contradict the IME’s medical findings.
Citing Larson’s Workers’ Compensation Law, Ch. 94, § 96.04 and its just rendered decision in Noll, the AD held the ALJ’s order requiring the employer to reimburse the worker for the costs associated with medical marijuana use did not contravene any identified provision of the Federal Controlled Substances Act, nor did the ALJ err in rejecting the IME’s findings and concluding that the use of medical marijuana was reasonable, proper, and necessary medical treatment in this case.
Important Factor in Both Cases: Strong Medical Evidence Supported Medical Marijuana
It should be noted that in both Noll and Bourgoin, the injured workers had tried multiple pain management regimes without success. Particularly important in Noll was the fact that the employer’s own § 207 physician said the worker would likely benefit from medical marijuana use. Physicians are more and more finding themselves and their patients between the proverbial rock and a hard place. Medical marijuana is technically illegal from a federal law standpoint. Continued pain management through the use of opioids is generally not in the best interests of their patients, however. What’s a doctor or patient to do? The Maine Board agrees with the courts in New Mexico; medical marijuana is the lesser of the two evils.
Where Do These Decisions Leave Maine Workers’ Compensation Insurers?
In Noll, the Appellate Division drew a clear distinction between workers’ compensation insurers and health insurance insurers, noting that the latter are clearly exempted from any requirement to reimburse a patient for the cost of medical marijuana, and at least inferring that workers’ compensation insurers are not so exempted. The statements in Noll, of course, amount to dicta, since Noll involved a self-insuring employer and not one that had secured workers’ compensation coverage from an insurance company.
The situation was different in Bourgoin. The AD made no specific mention of the employer’s status as a self-insurer or a policyholder. I do note, however, that the employer, Twin Rivers Paper Co., is not included in the list of employers that the Maine Workers’ Compensation Board lists as being self-insured. Based on that omission, I’m assuming that the Twin Rivers was not a self-insurer and further, that the AD was broadening the Noll holding such that neither self-insuring employers nor employers that have secured insurance coverage are protected by the MMUMA’s exclusion of health care insurers.
Have Maine and New Mexico Adopted a “Look-the-Other-Way” Approach to Illegal Activity
Some may be surprised by the relatively cavalier attitude adopted by both the ADJ and the AD to violations of the federal Controlled Substances Act. Particularly in Noll, when the employer argued that it was being forced to assume the risk of prosecution because the purchase, sale, and possession of marijuana, even for medical purposes, remains illegal, the ALJ essentially replied, “Well, the risk isn’t very great.” Similarly, the AD swept away the issue in Noll by acknowledging the illegality of marijuana use, but adding that, after all, the DOJ had said enforcement of the federal ban in the face of state medical marijuana laws was not one of its priorities.
Is the Maine Board really being cavalier? I don’t think so. As noted above, long term use of many alternative pain management medications has proven quite harmful. In no case decided so far—either in New Mexico or in Maine—has medical marijuana been the treatment of first resort. Until and unless there is another good medical alternative to opioids, more and more Boards and Commissions are likely to continue to support reimbursement of medical marijuana costs.