NY Court Says “Yes” to Medical Marijuana
A New York appellate court has affirmed a decision by the state’s Workers’ Compensation Board that allowed a variance to the state treatment guidelines for workers’ compensation claims and which ordered an employer’s workers’ compensation carrier to reimburse an injured employee for medical marijuana expenses provided under New York’s Compassionate Care Act [Matter of Quigley v. Village of E. Aurora, 2021 N.Y. App. Div. LEXIS 1223 (3d Dept. Feb 25, 2021)]. According to my research, this is the first decision in New York that clearly requires an employer and/or carrier to provide reimbursement for medical marijuana. Dicta in an earlier decision [Matter of Kluge v. Town of Tonawanda, 2019 N.Y. App. Div. LEXIS 7510 (3d Dept. Oct. 17, 2019)] had hinted that reimbursement might be required under appropriate circumstances (for my discussion of that earlier N.Y. decision, click here).
Background
Claimant, a police officer, established two workers’ compensation claims—one involving a concussion and injuries to his right wrist, elbow, and shoulder stemming from a February 2004 incident where he slipped and fell on black ice while at work, and the other involving a 1998 work-related injury to his low back. Following years of treatment, which included physical therapy, surgeries and various prescription pain medications, and a subsequent diagnosis of chronic regional pain syndrome of the right upper extremity, a WCLJ classified claimant as permanently partially disabled in 2009. Claimant continued receiving treatment with varying degrees of success, and his use of prescription pain medications, including opioids, continued to increase.
In October 2016, claimant began treatment with a pain management specialist. In May 2018, she certified claimant for use of medical marijuana pursuant to N.Y. Public Health Law article 23, title V-a, also referred to as New York’s Compassionate Care Act. Claimant filed an MG-2 variance form requesting authorization to use medical marijuana to treat his chronic pain resulting from the work-related injuries. The employer and its workers’ compensation carrier denied the request. The Board initially upheld the denial but, after claimant requested further action, the Board canceled its decision and continued the case for a hearing. Following a hearing, a WCLJ approved the variance request for medical marihuana treatment as apportioned, and, as relevant here, instructed the carrier to pay for such treatment. Upon administrative review, the Board, inter alia, upheld the request for the variance. The employer and the carrier appealed.
Conflict Between Compassionate Care Act and Controlled Substances Act?
The employer and the carrier contended that, inasmuch as marihuana is a Schedule I drug under the Controlled Substances Act (see 21 USC § 812[c]), the requirement that the carrier provide insurance coverage for claimant’s medical marihuana expenses under the Compassionate Care Act conflicted with the Controlled Substances Act and, in light thereof, the Compassionate Care Act was preempted by federal law. The appellate court stressed that neither the Compassionate Care Act nor N.Y. Workers’ Comp. Law § 13(a) required a workers’ compensation carrier to manufacture, distribute or possess marihuana. Rather, pursuant to the Compassionate Care Act, the carrier was merely required to reimburse a claimant for the monetary costs associated with the medical marihuana that he or she obtained from his or her medical practitioner, an activity that was not expressly prohibited under the Controlled Substances Act.
Funding Criminal Activity?
Nor did the court buy the workers’ compensation carrier’s argument that compelling the carrier to “fund” claimant’s use of medical marihuana under the Compassionate Care Act exposed it to civil and criminal liability under the auspices of “conspiracy or aiding or abetting.” The court stressed that even assuming, without deciding, that claimant’s procurement and possession of medical marihuana under the Compassionate Care Act was illegal under the Controlled Substances Act, any such criminal transaction in this regard was necessarily completed prior to any request being made for reimbursement from the carrier. One cannot aid and abet a completed crime.
Was the Carrier Statutorily Exempt From Reimbursement Requirement?
As to the carrier’s argument that the employer and the carrier were statutorily exempt from liability for claimant’s medical marihuana expenses under Public Health Law § 3368(2), the court again disagreed. The court noted that according to its express terms, the exemption from coverage for medical marihuana expenses pertained only to three chapters of law: the Public Health Law, the Insurance Law and the Social Services Law. No reference was made in the text of the statute to an exemption from coverage under the Workers’ Compensation Law. If the Legislature intended for the exemption to apply to workers’ compensation insurance carriers, said the court, it certainly could have included such language in the text of the statute. It had chosen not to do so.
Board Properly Granted Variance
Finally, the court held the Board did not err in granting claimant’s request for a variance. The Public Health Law and its accompanying regulations authorized the use of medical marihuana to treat certain enumerated and serious conditions, including—as relevant here—chronic pain. The Workers’ Compensation Law also required that treatment be rendered in accordance with its Medical Treatment Guidelines. Where, as here, a treating medical provider determined that medical care that varies from the Medical Treatment Guidelines was warranted, he or she was to submit a variance request. The burden of proof to establish that a variance wa appropriate for the claimant and medically necessary rested on the medical provider requesting the variance.
Ultimately, said the appellate court, it was up to the Board to determine if the variance was justified. If the Board’s decision is supported by substantial evidence, the appellate court would not disturb it. The court detailed the evidence that supported the Board’s finding, including claimant’s longstanding use of opiate pain medication. The Board’s decision to allow the variance was fully supported by substantial evidence.