In Maez v. Riley Industrial and Chartis, No. 33,154 (N.M. App. 2015), the latest case to address medical cannabis in workers’ compensation cases, the New Mexico Court of Appeals overturned the decision of Workers’ Compensation Judge (WCJ) David Skinner, who found that the worker’s doctor had not prescribed medical marijuana and that medical marijuana was not reasonable and necessary medical care. Previously, in Vialpando v. Ben’s Automotive Service, 2014-NMCA-084, 331 P. 3d 924 (2014), the court of appeals affirmed the finding of Judge Terry Kramer that a worker’s participation in New Mexico’s medical cannabis program pursuant to the Lynn and Erin Compassionate Use Act (Compassionate Use Act), NMSA 1978 ¶¶ 26-2B-1 to -7 (2007), constituted reasonable and necessary medical care under the Workers’ Compensation Act. In Vialpando, the employer was more concerned with the legality of reimbursing a worker for medical marijuana and the lack of a formal prescription than the question of whether the worker benefitted from medical marijuana. In Maez, the employer and insurer raised the question of reasonableness and necessity of medical cannabis in light of some perceived ambiguities in testimony by the treating physician, but the court of appeals still found in the worker’s favor, further establishing a foothold for medical cannabis as a viable treatment option for injured workers.
In Maez, the WCJ found that the worker’s physician, Dr. Reeve, did not prescribe medical marijuana and that medical marijuana was not reasonable or necessary to treat the worker’s chronic back pain. Dr. Reeve testified that over the course of worker’s treatment he had prescribed Soma, Ultram, Sprix, Percocet, Lortab (oxycodone), and hydrocodone. During a test required for pain management patients, the worker tested positive for marijuana. Dr. Reeve informed the worker that if he was going to use marijuana he would need to have a license, and that even if he had a license he would probably only prescribe nonnarcotic pain medication. Dr. Reeve later saw the worker for a medical marijuana evaluation and stated that the worker had undergone spinal injections and chronic pain management and that the worker “has failed traditional pain management and is a candidate for the cannabis program.” Dr. Reeve’s treatment plan at that visit was to authorize medical marijuana for one year. Dr. Reeve, along with a second doctor, signed the certification form to allow the worker to qualify for the medical cannabis program.
In his deposition testimony, Dr. Reeve also stated that he was “not recommending or distributing or in any way advocating for the use of medical cannabis.” However, while the court agreed that Dr. Reeve may have not recommended medical cannabis to the worker or advocated for its use, he nevertheless made it part of his treatment plan after finding that the traditional pain management was not successful for the worker. The court found that it could not accept the idea that Dr. Reeve would certify for the worker for the medical cannabis program solely on the worker’s request without using his own medical judgment.
In hindsight, one could infer that Dr. Reeve’s testimony was at least in part motivated by not wanting to appear to be too involved in the process at a time when the perceived threat of possible professional or legal repercussions from advocating for the use of medical cannabis was more prevalent. That was then. Today, the legal and medical landscape is markedly different, as more and more states adopt their own medical cannabis statutes, while the threat of criminal prosecution diminishes. In fact, the 2015 federal budget prohibits the Department of Justice from spending federal funds to prosecute participants in the 32 states that currently have medical cannabis programs. Consolidated and Further Continuing Appropriations Act of 2015, Section 538.
In any event, it is now clear that medical cannabis constitutes reasonable and necessary treatment for injured workers in New Mexico. Physicians can now begin to focus on the question of whether medical cannabis is appropriate on a purely medical basis. In time, current critics may better understand the benefit of having medical cannabis as a treatment option for injured workers. For those injured workers who are long term sufferers of chronic pain and other debilitating conditions, this is welcome news.