As medical marijuana continues to gain acceptance in states for medicinal and recreational purposes we may begin to see it creep in to the workers’ compensation arena. In a New Mexico case, Vialpando v. Ben Automotive Services, a worker filed an application with the Board to approve medical marijuana treatment. The board ordered the applicant be reimbursed by the employer for the medical marijuana as it was considered reasonable and necessary medical care. The case went up to the New Mexico Court of Appeals, and the Court affirmed the holding.
By way of background, the applicant severely injured his low back during the course of his employment. He underwent various failed surgical procedures and was left with debilitating pain. He was on various pain medications until his doctor certified him for the medical marijuana program. The applicant then filed an application with the board requesting reimbursement of his medical expenses. The application was approved.
Defendants argued the medical care was in violation of federal laws and thus unenforceable. However, the Board did not agree with this contention. The Board sided with the applicant and reasoned that an employer is required to provide an injured worker “reasonable and necessary health care services from a health care provider.” Vialpando v. Ben Automotive Services (2014) 2014-NMCA-32,920, 6. The applicant had been certified by two doctors to participate in the medical marijuana program. The Court went on to say that “the only prerequisite is that the service be ‘reasonable and necessary’ for the workers treatment.” Vialpando v. Ben Automotive Services (2014) 2014-NMCA-32,920, 10. While medical marijuana remains illegal under federal law, the Court was steadfast in their reasoning based upon the fact the Department of Justice outlined eight (8) areas of enforcement priority and outside those priorities it would defer to state law. Vialpando v. Ben Automotive Services (2014) 2014-NMCA-32,920, 16. Medical marijuana was not listed as a priority.
Defendants went on to argue that medical marijuana dispensers are not considered a “health care provider” and thus they should not be required to reimburse for these services. However, the Court also rejected this argument on the basis that health care providers authorize medical equipment which is provided by an outside source and employers are responsible for paying for the medical equipment. Vialpando v. Ben Automotive Services (2014) 2014-NMCA-32,920, 10.
How does this affect us?
It is only a matter of time before we start seeing the trend in California in workers’ compensation cases. Some bloggers believe medical marijuana may replace opioid use. This may be a positive change away from applicant’s being addicted to multiple pain medications. Furthermore, medical marijuana may be a cheaper alternative than paying for compound medications, which could help reduce the cost of future medical care. Furthermore, if medical marijuana becomes more prevalent for industrial injuries we may need to change zero tolerance policies and focus more on work place safety. Would workers be allowed to come to work after taking their medicinal marijuana? If not, how would this affect the work place? At this time, the Vialpando case appears to be a case of first impression. It is currently being appealed to the New Mexico Supreme Court. We will curiously await the ruling and monitor for any medical marijuana cases in California. Stay tuned.