The Smoke Clears on Medical Cannabis for Injured Workers
In the case of Sandra Lewis v. American General Media and Gallagher Bassett 2015- NMCA-90, the New Mexico Court of Appeals again ruled that medical cannabis is a reasonable and necessary form of treatment for injured workers. Lewis the third case from the court of appeals upholding medical cannabis as reasonable and necessary treatment, following Greg Vialpando v. Ben’s Automotive Services, 2014-NMCA-084, 331 P.3d 975 cert. denied,331 P.3d 924. (2014), (holding that the Workers’ Compensation Act authorizes reimbursement for treatment and declining to hold that federal law prohibited it) and Maez v. Riley Industrial, 2015-NMCA-049, 347 P.3d 732 (considering sufficiency of evidence that supported medical cannabis as reasonable and necessary treatment for the worker in that case). In Lewis, the Employer/Insurer appealed the ruling of a Workers’ Compensation Judge (WCJ) arguing that the judge improperly considered the opinions of an unauthorized health care provider when it determined that a worker’s treatment with medical cannabis was reasonable and necessary and causally related to the work accident, and arguing that the conflict between New Mexico law and federal law rendered the ruling invalid.
Ms. Lewis suffered a work injury in 1998 and had been using medical cannabis after lengthy treatment failed to resolve her pain issues. She underwent several surgical procedures and was diagnosed with post-laminectomy syndrome in her lumbar region. She suffered chronic pain and had taken numerous drugs as part of her pain management, including Oxycodone, Oxycontin, Norflex, Soma, Gabapentin, Lyrica, Percocet, Fentanyl and Zantac. The issues concerning Worker’s treatment arose in April of 2012 when the Employer filed an Application requesting an independent medical examination (IME) to determine the scope of reasonable and necessary treatment for the Worker. The IME physician supported Worker’s request to use medical cannabis to control the pain as reasonable and appropriate.
Ms. Lewis was originally certified to participate in New Mexico’s Medical Cannabis program in March 2010. In 2012, Dr. Carlos Esparza, Worker’s authorized health care provider provided a written certification to re-enroll her in the program. Dr. Esparza certified that the Worker had debilitating medical conditions including severe chronic pain and that Worker had “current unrelieved symptoms that have failed other medical therapies.” Dr. Esparza stated, “the benefits of medical marijuana outweigh the risk of hyper-doses of narcotic medications.” A second doctor, Stephen Rosenberg also signed the certification for Worker’s enrollment in the medical cannabis program (the rules regarding enrollment for the medical cannabis program have since changed, and currently only one doctor’s signature is necessary to certify a patient for participation in the program due to chronic pain).
A trial was conducted on August 8, 2013 in which the WCJ found that the Worker’s authorized provider had recommended Worker as a candidate for medical cannabis under the Compassionate Use Act. Employer appealed and argued that because one of the doctors certifying Ms. Lewis for re-enrollment in the program was not an authorized physician under the Workers’ Compensation Act, there was insufficient evidence to support Employer reimbursing Worker for cannabis. The Court of Appeals found that while two doctors may have been necessary to enroll a patient into the medical cannabis program, it is not necessary for two doctors to determine whether a worker’s participation in the program constitutes reasonable and necessary medical treatment under the Workers’ Compensation Act. The Court found that although Dr. Rosenberg’s certification may have been necessary for Worker’s enrollment in the program, it was not required to establish the reasonableness and necessity of Worker’s medical care under the Workers’ Compensation Act. The Court also found that there was sufficient evidence to support the conclusion that medical cannabis was reasonable and necessary treatment to treat Worker’s chronic pain.
Employer then argued that the order requiring it to reimburse Worker’s purchase of medical cannabis raised a conflict between federal and state law and that federal law preempted state law rendering the WCJ’s order without effect. While the Court agreed that the Controlled Substances Act, 21 U.S.C. §§ 801-904 (2012) conflicts with Compassionate Use Act, the Court cited its prior decision in Vialpando v. Ben’s Automotive Services, noting that the employer in that case had failed to demonstrate that the order would have required it to violate a federal statute and that federal public policy was ambiguous in contrast with New Mexico’s clear public policy expressed in the Compassionate Use Act.
The employer in this case attempted to distinguish Vialpando, citing a memorandum from the U.S. Department of Justice and identifying specific federal statutes it felt would implicate Employer’s activity in carrying out the WCJ’s order. According to the Employer, New Mexico’s statutory and regulatory scheme, under its medical cannabis program, is not sufficient to satisfy the Department of Justice’s requirements that rest on the expectation that states that have enacted laws authorizing marijuana related conduct will implement clear, strong and effective regulatory enforcement systems in order to minimize the threat posed to federal enforcement priorities.
The court of appeals dismissed Employer’s argument that there was insufficient oversight in Worker’s participation in the medical cannabis program to comply with the directives set forth in the memorandum from the Department of Justice, and that the Employer faced federal exposure for reimbursing Worker’s purchase of medical cannabis. The employer argued that it could be liable for a violation of the Controlled Substance Act by way of conspiracy by aiding and abetting Worker’s purchase of a controlled substance. The Court of Appeals found Employer’s argument to be speculative in view of existing Department of Justice and federal policy. The Court noted that the 2015 federal budget directs that none of the funds made available to the Department of Justice could be used to prevent the enumerated states, including New Mexico, from implementing laws that authorize use, distribution, possession or cultivation of marijuana.
The Court concluded that in light of the equivocal federal policy and the clear New Mexico policy, as expressed in the Compassionate Use Act, it would decline to reverse the WCJ’s order. The Lewis decision, for all intents and purposes, closes the book on the debate regarding the propriety of medical cannabis as medical treatment for injured workers, barring a monumental change in course from the federal government.
Taking a cue from the court of appeals, on October 1, 2015, the Workers’ Compensation Administration implemented new rules, including 11.4.7 NMAC, which specifically recognizes medical cannabis as a form of treatment for injured workers. Rule 188.8.131.52 allows the Workers’ Compensation Administration to set the maximum payment that a Worker may be reimbursed for medical cannabis and states that medical cannabis may be a reasonable and necessary treatment “only where an authorized health care provider certifies that other treatment methods have failed.” The rule states that “at least one physician certifying for participation in the medical cannabis program shall be an authorized health care provider.”
The rules are somewhat problematic in that they appear to take on the role of physician in determining that medical cannabis may only be considered reasonable and necessary when a health care provider certifies that other treatment methods have failed. It is unclear whether this provision will cause disputes regarding other prescriptions workers might have in conjunction with medical cannabis. Moreover, the provision requiring a physician certifying a worker to participate in the program shall be an authorized health care provider, would apparently prevent a worker who is already certified in the program from becoming eligible for reimbursement by nature of the worker’s authorized health care provider simply stating that the worker’s participation in the program is reasonable and necessary treatment for the work injury.
There are still no rules or guidance for injured workers who are able to return to work while using medical cannabis. Nothing in New Mexico law prevents those workers from being disciplined or terminated for violating company drug policies. In spite of these potential complications, it is now clearly the law of New Mexico that medical cannabis is an accepted treatment for injured workers, making New Mexico the first and only state in the United States that recognizes medical cannabis as reasonable and necessary treatment for injured workers.