In what appears to be a case of first impression for any state appellate court, a New Mexico appellate court, in Vialpando v. Ben’s Automotive Servs., 2014 N.M. App. LEXIS 50 (May 19, 2014), has held that an employer may be required to reimburse an injured employee for the expense of medical marijuana used pursuant to the Lynn and Erin Compassionate Use Act (Compassionate Use Act), N.M. Stat. Ann. § 26–2B–1 to –7, et seq, in spite of the employer’s argument that (1) the state’s Workers’ Compensation Act (the Act) and regulations promulgated pursuant to the Act did not recognize medical marijuana as a legitimate medical expense, (2) that the workers’ compensation judge’s (WCJ’s) order was tantamount to requiring the employer to violate federal law, and (3) the WCJ’s order violated public policy. The appellate court agreed with the WCJ that the Act authorized such reimbursement and held that the employer was not being asked to violate any federal law.
The employee sustained a low back injury that resulted in his undergoing a number of surgical procedures. The parties agreed that the employee had reached MMI, that he had significant whole body impairment, and that he had sustained a 99 percent PPD. One physician stated that of the thousands of patients he had treated, the employee’s pain level was among the highest. Doctors prescribed multiple narcotic based pain relievers and multiple anti-depressant medications.
Eventually, the employee filed an application for approval of a medical marijuana regime. Following a hearing, the (WCJ) found that the employee was entitled to “ongoing and reasonable medical care,” that the employee was qualified to participate in the state’s Medical Cannabis Program authorized by the Compassionate Use Act, and that such treatment would be reasonable and necessary medical care under the Act.
The employer appealed, contending in relevant part that the Act contemplated that medical care and services be provided by a health care provider (as defined under the Act), that it was illegal for a health care provider to sell marijuana, and that it could not be required to make the reimbursement. The court disagreed with the employer’s premise, finding that the Act required only that a health care provider have the responsibility for the provision of the reasonable and necessary services, not that each and every service must be provided by a health care provider.
The court agreed that marijuana was not a “prescription” drug, but rather a controlled substance. Reimbursement for the cost of the medical marijuna could be justified under the more general provision of “services.” Nothing in the Act required that medical marijuana be classified as a prescription medication to allow its provision to an injured employee.
The court continued that the legislative intent of the Compassionate Use Act was “to allow the beneficial use of medical cannabis in a regulated system for alleviating symptoms caused by debilitating medical conditions and their medical treatments.” This provision, when read together with the Workers’ Compensation Act itself supported the finding that under appropriate circumstances, an employer might be ordered to reimburse the employee for the cost of medical marijuana.
As to the employer’s argument that it was being ordered to disobey federal law, the court said the employer had not cited any federal statute it was being forced to violate. The court added, “We will not search for such a statute.” The court, therefore, declined to reverse the WCJ’s order on the basis of federal law or public policy.