Medical Marijuana Reimbursement in Workers' Compensation
Courts around the country continue to wrestle with the issue of whether or not medical marijuana should be reimbursed under workers’ compensation, with the latest ruling coming this week from New Hampshire. In a decision issued yesterday, the New Hampshire Supreme Court ruled that the state’s Labor Appeals Board was incorrect in ruling that an injured worker who was approved for a therapeutic cannabis program could not be reimbursed by his workers’ compensation insurer for the cost of the marijuana.
The injured worker in the New Hampshire case, Andrew Panaggio, suffered a back injury at work in 1991. In 2016, he was approved by the state’s Health Department to participate in its therapeutic cannabis program for the treatment of residual chronic pain. He subsequently requested that his workers’ comp insurer reimburse him for the program, but the insurer denied the request on the grounds the marijuana was not medically necessary. Upon appeal, the New Hampshire Labor Appeals Board rejected the insurer’s determination in regard to medical necessity, citing Panaggio’s testimony that it reduced his need for opiates; but the Board upheld the denial of payment because “possession of marijuana is still a federal crime” that could expose an insurer to criminal prosecution.
The case was ultimately taken up by the state Supreme Court, which ruled yesterday that the Labor Appeals Board’s decision had failed to cite any legal authority or identify a federal statute to support its conclusion that federal law prevented the insurer from making reimbursement. The Court said that although New Hampshire’s therapeutic cannabis law (which is similar to California’s) provides that nothing in the statute “shall be construed to require” health insurers — including workers’ comp insurers — to be liable for medical marijuana reimbursement, it disagreed with the lower court’s finding that state law prohibits reimbursement of marijuana, noting that New Hampshire’s workers’ comp law does not specifically ban such payments. The court further elaborated that had the legislature wished to bar workers’ compensation reimbursements for marijuana, it could have followed the lead of lawmakers in other states by including an express prohibition in either the cannabis law or the workers’ compensation statute. But the Court remanded the case to the Labor Appeals Board with instructions to provide an analysis of whether compelled reimbursement would violate federal law.
The Panaggio case is the latest in a string of cases around the country in which states are seeking to address whether employers should pay for medical marijuana under their workers’ comp programs. Last year, the Maine Supreme Court ruled against a paper mill worker who was disabled after being hurt on the job in 1989, noting that federal law takes precedence in a conflict between the federal Controlled Substances Act and the state’s medical marijuana law. On the flip side, courts in Connecticut, Maine, Minnesota, New Jersey, and New Mexico have all ruled that medical marijuana treatment is reimbursable under their workers’ compensation laws. Meanwhile, legislatures in Florida, North Dakota, and Michigan have enacted laws specifically excluding medical marijuana from workers’ compensation reimbursement. As for California, medical marijuana has been legal in the state since 1996. Given the momentum provided by the recent rulings and statutory activity in other states, the issue of reimbursement under workers’ compensation, including many of the same arguments currently under debate in New Hampshire, could soon resurface at the WCAB, in the courts, or in the legislature, so the Institute will continue to keep you apprised.
BY/