As more states legalize cannabis for both recreational and medical use, many courts are beginning to struggle with whether to cover medical cannabis costs in workers’ compensation cases. New Mexico is one of the rare places where courts have ruled that medical cannabis is a legitimate treatment for some workplace injuries and companies are required to cover its cost.
According to a review from National Institute for Occupational Safety and Health (NIOSH) researchers, six states have ruled in favor of reimbursing medical cannabis costs for workers that have been hurt on the job, while six others have ruled against it. New Mexico is one of those in favor, along with Connecticut, Minnesota, New Hampshire, New Jersey and New York. In the other boat are Maine, Massachusetts, Florida, North Dakota, Ohio and Washington—which have explicitly prohibited companies from reimbursing medical marijuana. All other states where medical cannabis is legal have either said companies are not required to reimburse medical cannabis costs (but also have not outright banned the practice) or have successfully avoided the issue thus far.
This means that if you’re a New Mexico resident who gets injured on the job, you’re one of the lucky few in this country who can successfully pay for your medicine using workers’ compensation insurance. But securing that right didn’t happen overnight. Thankfully, state authorities had employees’ needs in mind when they considered the issue.
The New Mexico Court of Appeals has repeatedly ruled in favor of workers seeking medical cannabis reimbursements. Thanks to those rulings, the state’s Workers’ Compensation Administration website now says that an injured worker is allowed “the use of medical marijuana when deemed ‘reasonable and necessary care’ under the Workers’ Compensation Act. The injured worker must pay out of pocket, and is reimbursed per fee schedule for the cost of medical cannabis deemed necessary in the workers’ compensation claim.” But the policy wasn’t always so explicit.
Courts Rule In Favor of Compensation
In 2014 auto repair shop Ben’s Automotive Services in Santa Fe fought a workers’ compensation claim seeking reimbursement for medical cannabis on the grounds that “reasonable and necessary care” for injuries in the workplace had to come from a health provider.
The claim had been filed by Gregory Vialpando, an employee of the company who suffered from a workplace back injury. According to Courthouse News a doctor who was treating Vialpando told the court that the man was suffering “from some of the most extremely high intensity, frequency and duration of pain, out of all of the thousands of patients I’ve treated within my seven years practicing medicine.” The doctor said that, although Vialpando was receiving narcotic pain relievers, the treatments weren’t helping. Vialpando’s doctor recommended that he apply for a medical cannabis card, and the patient enrolled in the state’s program.
The Court of Appeals shut the auto shop’s argument down, ruling that equipment, supplies and services from sources other than health providers were commonly covered by workers’ compensation in other circumstances. It also ruled that reimbursing a worker’s medical cannabis costs is not illegal and that a medical cannabis card qualifies as the “functional equivalent of a prescription.”
A year later, in 2015, the Court of Appeals once again ruled that a workers’ compensation claim for medical cannabis be met. Arizona-based Riley Industrial Services Inc. employee Miguel Maez filed a claim for medical cannabis reimbursement after suffering two back injuries at a Farmington company facility. Much like the previous case, Maez’s doctor said that typical opioid treatment was proving ineffective and recommended medical cannabis.
A judge initially ruled that the company did not have to pay for the treatment because Maez was never “prescribed” cannabis, but the Court of Appeals reversed the decision, ruling that medical cannabis should be considered “reasonable and necessary medical care” under the state’s compensation regulations and should be covered. The court cited the previous case in its decision.
That summer, only a few months later, the appellate court once again ruled in favor of reimbursing a worker for their use of cannabis to treat a work-related injury. American General Media, a company that operates a number of radio stations in Albuquerque, attempted to block employee Sandra Lewis’ workers’ compensation claim for cannabis reimbursement on the grounds that federal law prohibits the use of cannabis.
Lewis suffered from chronic pain due to a 1998 workplace injury and had been enrolled in the Medical Cannabis Program for five years. American General Media argued that since the drug is federally illegal in all forms, it conflicted with state law and should free them from having to pay for it. The court referred to the Cole Memorandum, which instructs federal prosecutors to leave cannabis law enforcement up to state authorities. Judges ruled that state authority superseded federal authority in this instance and ordered that Lewis’ reimbursement be paid.
NM Ahead of the Curve
This is all great news for those of us living in the Land of Enchantment, but most of the country’s leaders have remained silent on the issue. The states that have legalized the drug but failed to recognize it as a legitimate treatment for workplace injuries far outnumber those in the other camp. According to the previously mentioned NIOSH study, 36 states had legalized medical cannabis in some form at the time the study was conducted, but 14 states still do not require medical cannabis reimbursement, 10 states and Washington D.C. have not addressed the issue yet and six have outright banned the practice. Since then, three more states have legalized medical cannabis but have not addressed reimbursement policies.