New Mexico: Health Care Provider’s “Certification” of Medical Marijuana is Functional Equivalent of Prescription for Injured Worker

An authorized treating health care provider’s “certification” authorizing the use of medical marijuana under New Mexico’s Compassionate Use Act [N.M. Stat. Ann. § 26–2B–1 et seq.] is the functional equivalent of a prescription, held the Court of Appeals of New Mexico [see Maez v. Riley Industrial, 2015 N.M. App. LEXIS 7 (Jan. 13, 2015)]. Accordingly, medical marijuana, where so authorized, can be considered “reasonable and necessary medical care” under the state’s Workers’ Compensation Act. In so holding, the appellate court reversed a decision of a state workers’ compensation judge who found that since the marijuana was not actually prescribed by the injured worker’s health care provider (“HCP”), it could not be deemed reasonable and necessary medical care.

Background

Maez sustained two work-related back injuries in 2011 and received medical treatment and disability payments for time lost from work. In 2012 and 2013, his HCP authorized the use of medical marijuana after “traditional” medical therapies failed to relieve Maez’s chronic back pain and herniated disk. The employer and insurer objected to the use of the marijuana and a workers compensation judge (“WCJ”) found that medical marijuana did not constitute reasonable and necessary medical care for Maez since Maez’s HCP did not “prescribe” the controlled substance. Since the use of medical marijuana was not reasonable and necessary medical care, the WCJ ruled that the employer and insurer need not pay for its provision and use.

In a deposition, the HCP noted that Maez had tested positive for marijuana use prior to the HPC’s “certification.” The HCP added that he had authorized medical marijuana for Maez and other patents only because they “are going to use the cannabis either one way or the other.” The HCP continued by saying if “patients request that I sign (authorization for medical marijuana), I will sign for them, but I’m not recommending or distributing or in any way advocating for the use of medical cannabis.”

Marijuana Is Not a Prescription Drug

The appellate court said that whether Maez had requested the medical marijuana treatment was not the controlling factor; it had been authorized as part of his treatment plan and it had been authorized only after other traditional treatment practices had failed to provide any relief. Moreover, one could not require a prescription for medical marijuana since the substance was not a “prescription drug.” The court reasoned that an authorization of the substance under procedures set forth in the state’s Compassionate Use Act qualified as the “functional equivalent of a prescription.”

Based on these findings, the court ruled that the WCJ’s decision that medical marijuana was not reasonable and necessary treatment for Maez was not supported by substantial evidence.

Decision is Second By New Mexico Appellate Court

Readers may recall a May 2014 decision in which the same New Mexico court held that the state’s Workers’ Compensation Act authorized reimbursement for medical marijuana used pursuant to the Compassionate Use Act [see , in Vialpando v. Ben’s Automotive Servs., 2014-NMCA–084, 331 P.3d 975, cert. denied, 331 P.3d 924 (2014)]. There the court found that an injured worker was qualified to participate in the Department of Health Medical Cannabis Program authorized by the Compassionate Use Act and that such treatment would be reasonable and necessary medical care. There the employer unsuccessfully contended that federal law did not differentiate between medical and recreational use of marijuana and that it was essentially being ordered to violate the law.  For additional discussion of Vialpando, see http://www.workcompwriter.com/new-mexico-court-orders-employer-to-reimburse-worker-for-medical-marijuana-2/.

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