Opinion Raises as Many Questions as It Answers
Last Thursday (March 7), the Supreme Court of New Hampshire handed down a decision that reversed, in pertinent part, a state Appeals Board decision that had refused to require a workers’ compensation carrier to reimburse an injured worker for charges related to medical marijuana dispensed under a state-approved program [Appeal of Andrew Panaggio, N.H. Comp. Appeals Bd., 2019 N.H. LEXIS 35 (Mar. 7, 2019)]. The high court deftly danced around the nagging question in medical marijuana cases—it’s still illegal under federal law. It said that the Board had erred in finding reimbursement was prohibited under a specific provision of the state’s medical marijuana law, but it remanded the case for additional consideration, indicating the Board had failed, among other things, to analyze whether the carrier’s compliance with an order to reimburse would actually violate any federal laws.
Panaggio suffered a work-related injury to his lower back in 1991. In 1996, a permanent impairment award was approved. In 1997, he received a lump-sum settlement. Unfortunately, Panaggio continued to experience pain as a result of his injury and he also experienced side effects from taking prescribed opiates.
In 2016, the New Hampshire Department of Health and Human Services determined that Panaggio qualified as a patient in the therapeutic cannabis program, and issued him a New Hampshire cannabis registry identification card. Panaggio purchased medical marijuana and submitted his receipt to the workers’ compensation insurance carrier for reimbursement. The carrier denied payment, indicating to Panaggio that medical marijuana was not reasonably necessary, nor causally connected to his injury.
Panaggio challenged the insurance carrier’s denial before the New Hampshire Department of Labor. The hearing officer found that Panaggio had failed to satisfy his burden of proof that the outstanding medical treatment was reasonable, related or made necessary by the work injury.
Board Says Use of Marijuana Was Medically Reasonable
Crediting Panaggio’s testimony that cannabis was palliative and had the added benefit of reducing his need for opiates, the Board unanimously rejected the carrier’s position that Panaggio’s use of medical marijuana was not medically reasonable or necessary.
Board Says Carrier Still May Not Be Compelled to Pay
Notwithstanding its finding that Panaggio’s use of medical marijuana was reasonable and necessary, the Board still refused to order reimbursement by the carrier. Referring to the statutory language of the medical marijuana law, the Board noted that the law could not be construed to require any “health insurance provider, health care plan, or medical assistance program to be liable for any claim for reimbursement for the therapeutic use of cannabis” [RSA 126-X:3, III(a)]. The board (with one member dissenting) determined that RSA 126-X:3, III(a) (2015) barred Panaggio’s request for reimbursement, finding that the clear purpose of the statute was “to protect such providers from being subject to criminal prosecution under federal law.”
Medical Marijuana Law Does Not Disturb Preexisting Statutory Obligations
The Supreme Court initially observed that the carrier had not challenged the Board’s finding that Panaggio’s use of medical marijuana was reasonable and medically necessary. It also noted that in other jurisdictions, such as Florida, a workers’ compensation carrier could not be compelled to pay for medical marijuana. The New Hampshire law did not specifically include workers’ compensation carriers in the list of parties who could not be compelled to pay.
The Court then drew a fine line, noting that although the medical marijuana law did not newly create an affirmative statutory obligation for any enumerated entity to reimburse any patient for money spent on therapeutic cannabis, neither did it disturb preexisting, separate statutory obligations to provide for reimbursement.
Board Erred in Prohibiting Reimbursement
The Court continued that because the board found that Panaggio’s use of medical marijuana was reasonable, medically necessary, and causally related to his work injury, the board erred when it determined that the carrier was prohibited from reimbursing Panaggio for the cost of purchasing medical marijuana. The carrier’s obligation was the sort of preexisting obligation that was unchanged by the medical marijuana law.
Dismissive of Carrier’s Argument That it Might Be Required to be Support Criminal Act
Acknowledging that the carrier had asserted that if it was ordered to reimburse Panaggio for the payment of medical marijuana, it would be in express violation of federal laws that prohibit a person from knowingly possessing a controlled substance. The Court said the Board’s order did not indicate that it had relied upon any federal statutory provisions in reaching its decision. Nor had the board analyzed whether the carrier’s compliance with an order to reimburse Panaggio for medical marijuana obtained in accordance with state law would violate any federal statute.
Board Failed to Articulate the Law
The Court concluded that because the Board had insufficiently articulated the law that supported the Board’s legal conclusion and had failed to provide an adequate explanation of its reasoning regarding federal law, it was impossible to discern the basis for the Board’s decision sufficient to conduct meaningful review.
Commentary: Where Does this Leave Other Injured Workers and Carriers?
Is New Hampshire the second state (after New Mexico) to require reimbursement for medical marijuana [see Larson’s Workers’ Compensation Law, § 94.06]? I’d say it’s certainly leaning that way, but I’m left with at least one nagging question: the issue of whether medical marijuana is reasonable and necessary treatment was not actually before the New Hampshire high court. Yes, the carrier here did not raise the issue on appeal, but does that stop the next carrier from again arguing the issue before the New Hampshire Board and then continuing to argue it on appeal? I don’t think so.
At last year’s ABA Mid-Winter Meeting of the Workers’ Compensation Committee, I had a conversation with Bob Wilson, President & CEO of WorkersCompensation.com. We were panel members at separate breakout sessions and at an afternoon coffee break, we had some time to chat about common concerns. At that time, the decision in Maine’s Burgoin case had not yet come down [see Bourgoin v. Twin Rivers Paper Co., 2018 ME 77, 2018 Me. LEXIS 79 (June 14, 2018)]. The injured worker had prevailed at the administrative appeal level; the Maine carrier had been ordered to reimburse the charges for medical marijuana.
As we discussed Bourgoin, Bob allowed, “Can a carrier be required to reimburse an injured worker for his or her Jack Daniel purchase? After all, it isn’t an opiate and it helps some workers deal with pain.”
I added, “Moreover, unlike marijuana, bourbon isn’t illegal at the federal level.”
In the instant New Hampshire case, the Board determined that marijuana was reasonable medical treatment based—at least as far as I can tell from the Supreme Court opinion—on Panaggio’s statement that marijuana helped and didn’t have the side effects of opiates. Fair enough, but is Panaggio sufficiently expert to offer such an opinion? What if he’d said two or three cocktails each evening helped his pain? Would the New Hampshire Board accept that as supportive of sending the liquor bill to the carrier?
We Need More Discussion/Debate
I’m certainly sensitive about those who suffer chronic pain and who want to stay away from opiates. I have a close friend who is in such a debilitating situation. If the science is so clear that medical marijuana is helpful, why is it still illegal in many states and at the federal level? If the science is not so clear, what then do we do? I know that there is some active, intelligent discussion of the issues currently ongoing, but we could use even more.