The New Mexico Court of Appeals recently ruled that an employer must pay for an injured worker’s medical marijuana. This is the nation’s first appellate court ruling in a workers’ compensation case in which an employer has been ordered to pay for medical marijuana prescribed by an employee’s healthcare provider to treat a workplace injury.¹

In 2000, George Vialpando injured his back at work in 2000 while he was employed by Ben’s Automotive Services in Santa Fe. For years, he was unable to find pain relief from narcotics and other pain medication. His physician said Vialpando believed his pain was too severe to treat with traditional medication.

In 2013, Vialpando was certified by his healthcare providers to participate in the New Mexico medical marijuana program which permits people to purchase marijuana after receiving certification from a medical practitioner licensed in New Mexico. Vialpando applied for approval from a workers’ compensation judge to have the marijuana paid for by his former employer. The workers’ compensation judge approved the application, found the requested treatment was “reasonable and necessary,” and ordered his employer to pay for the medical marijuana. Ben’s Automotive appealed to the New Mexico Court of Appeals.

Ben’s Automotive raised two arguments for why it shouldn’t be required to reimburse Vialpando: First, the Workers’ Compensation Act doesn’t authorize reimbursement for the cost of medical marijuana, and second, the workers’ compensation judge’s order was illegal under federal law. Ben’s Automotive argued that it was being forced to violate federal law because marijuana is a Schedule I controlled substance, so it’s illegal under federal law to use or possess it. There’s no exception under federal law for the medical use of marijuana. Both arguments were rejected by the court of appeals, which ruled that the New Mexico Workers’ Compensation Act doesn’t prohibit a healthcare provider from certifying that an injured worker should receive medical marijuana in the course of the treatment for his workplace injury. As long as the treatment is “reasonable and necessary” and approved by a workers’ compensation judge, the employer is responsible for paying for it under the Act regardless of the federal ban.

New Mexico employers are in the position of deciding whether to violate a federal law or a workers’ compensation judge’s order. The more states that have the chutzpah to violate the federal ban on marijuana, the faster the draconian federal law will change. Even when the U.S. Food and Drug Administration (FDA) approves medicinal cannabis studies, the researcher or institution must then obtain approval from the Public Health Service (PHS), as well as procure cannabis material from the National Institute on Drug Abuse (NIDA), which is very difficult to do, but they must keep fighting no matter how many obstacles lie ahead. Millions of people in all states could be helped by medical marijuana, which typically has more CBD than THC in it.

Another important development in the fight for medical marijuana is Amendment 3630 recently filed by Sen. Rand Paul in the Senate. Amendment 3630 would protect states that implement medical marijuana laws, as well as patients and physicians in those states, from federal prosecution. The amendment would allow states to “enact and implement laws that authorize the use, distribution, possession, or cultivation of marijuana for medical use” without fear of federal prosecution.

There are 33 states that have enacted laws protecting some form medical marijuana. The amendment also prohibits prosecution of patients and physicians for violating federal laws against the drug. The amendment is meant to encourage doctors to prescribe medical marijuana for their patients without fear of losing their license or being prosecuted by the federal government. Because the Senate is currently dysfunctional, it is very unlikely that Paul’s amendment will be passed this year. Perhaps things will change when medical marijuana becomes legal in Florida in November.
Footnotes

¹Koenig, Barbara J. (July 24, 2014). Medical Pot Covered by Worker’s Cop, says Appeals Court. (Retrieved from http://hr.blr.com/HR-news/Performance-Termination/Alcohol-and-Drugs-Testing/Medical-pot-covered-by-workers-comp-says-court#)