Courts in N.Y., N.H. Rule Workers’ Comp Should Cover Marijuana Costs for Injured Workers

By Jim Sams | March 2, 2021

Courts in New York and New Hampshire have joined jurists in New Jersey in ruling that the cost of medical marijuana should be covered by state workers’ compensation systems.

The New Hampshire Supreme Court on Tuesday overturned a decision by the state Compensation Appeals Board to deny injured worker Andrew Panaggio’s request for reimbursement for marijuana he purchased to relieve pain from a 1991 back injury. The high court said it did accept CNA Insurance Co.’s argument that requiring it to reimburse a claimant for marijuana would be tantamount to requiring it to violate the federal Controlled Substance Act.

“The CSA does not criminalize the act of insurance reimbursement for an employee’s purchase of medical marijuana,” the Supreme Court said in 4-0 decision.

A New York State appellate court ruled on Feb. 25 that a workers’ compensation insurer must reimburse an injured worker for marijuana to relieve pain from workplace injuries, despite a state law that specifically exempts health insurers from providing coverage for medical marijuana costs.

In a 5-0 decision, the 3rd Department of the New York Appellate Division upheld a State Workers’ Compensation Board ruling to grant a variance to medical treatment guidelines that allowed permanently disabled former police officer Daniel Quigley to seek reimbursement for the marijuana he uses to relieve pain from two prior workplace injuries.

The appellate court said in an opinion written by Justice John C. Egan that a state law that specifically exempts insurers from paying for marijuana under the Public Health Law or Insurance Law makes no mention of the Workers’ Compensation Law.

“If the Legislature intended for said exemption to apply to workers’ compensation insurance carriers, it certainly could have included such language in the text of the statute; it chose not to,” the opinion states.

Attorney Thomas A. Robinson noted the decision in Matter of Quigley v Village of East Aurora in a post Monday on his Work Comp Writer blog.

The New York ruling follows court decisions in New Jersey, Connecticut, Minnesota, Maine and New Mexico that allowed claimants reimbursement for medical marijuana use.

The Massachusetts Supreme Judicial Court went the opposite direction when ruling on Oct. 27 that employers and insurers could not be required to pay for medical marijuana because the substance is illegal under the federal Controlled Substances Act.

Both the New Hampshire and New York courts cited a Jan. 13, 2020 ruling by the New Jersey Appellate Division in rejecting an argument by the Village of East Aurora that requiring it to reimburse Quigley for marijuana would make it complicit in a criminal violation of the federal Controlled Substances Act. The New Hampshire Supreme Court said nothing prevents the federal government from prosecuting Panaggio for using marijuana, regardless whether CNA reimburses him.

New York’s Appellate Division said “any such criminal transaction in this regard is necessarily completed prior to any request being made for reimbursement from the carrier; thus, as ‘one cannot aid and abet a completed crime,’ under such circumstances, the carrier cannot be said to be aiding and abetting a crime and/or engaging in a conspiracy to commit same.”

The New York court said that Quigley suffered chronic pain to his right shoulder as a result of a 2004 work injury. His treating physician, Cheryl Hart, noted that medical marijuana would help her patient “get off of the opioids” he had been taking to control the pain. She reported in her variance request that Quigley’s energy and mood improved after medical marijuana was introduced to his treatment regimen.

“Having reviewed Hart’s detailed and specific report, we find that the Board’s decision to grant the requested variance to treat claimant’s chronic pain with medical marihuana is supported by substantial evidence and, as such, we decline to disturb it,” the appellate court concluded, using an alternative spelling.

According the National Council on Compensation Insurance, 15 states and the District of Columbia have legalized recreational use of marijuana and 35 states have legalized use for medical purposes.

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