Appeals court again favors medical pot patient in workers’ comp claim

Posted: Wednesday, July 8, 2015 9:00 pm | Updated: 11:04 pm, Wed Jul 8, 2015. 

 

By Steve Terrell
The New Mexican 

 

Once again, the state Court of Appeals has ruled that a patient in the state’s Medical Cannabis Program who was injured on the job must be reimbursed by an employer for the expense of marijuana used for treatment.
It’s the third time since May 2014 that the appeals court has ruled in favor of a medical marijuana patient in a workers’ compensation claim.

In the most recent case, appeals Judge James Wechsler wrote that a workers’ compensation judge was correct in ruling that American General Media, a company that owns several radio stations in New Mexico, had to reimburse Sandra Lewis of Albuquerque for the cost of her marijuana. 

The company and its third-party workers’ compensation administrator, Gallagher Bassett Services, had appealed the August 2013 decision by the workers’ compensation judge.

Among other arguments, American General Media and Gallagher Bassett Services contended the state’s medical marijuana law created a conflict with the federal Controlled Substance Act, which prohibits all use of marijuana.

However, Wechsler wrote that “federal public policy was ambiguous in contrast with New Mexico’s clear public policy expressed in the [state] Compassionate Use Act.” His ruling refers to a 2013 U.S. Department of Justice memo that says when it comes to medical marijuana, the federal government “would generally defer to state and local authorities.”

Lewis injured her back on the job in December 1998. “She underwent several surgical procedures and currently suffers from post-laminectomy syndrome in the lumbar region,” the appeals court ruling stated. “She suffers chronic pain. Since her injury, [Lewis] has taken numerous drugs” as part of her pain management, including oxycodone, Soma, Percocet and other painkillers.

In 2010, Lewis was accepted into the state’s Medical Cannabis Program to treat her chronic pain.

Dr. Carlos Esparza of Albuquerque, in certifying Lewis’ re-enrollment in the program, wrote in 2012 that she had debilitating medical conditions and that she had “current unrelieved symptoms that have failed other medical therapies.” Esparza wrote that the “benefits of medical marijuana outweigh the risk of hyper doses of narcotic medications.”

Appeals court Judges Roderick Kennedy and Monica Zamora concurred in the decision.

In January, the Court of Appeals overturned the decision of a workers’ compensation judge who had ruled that medical marijuana didn’t constitute “reasonable and necessary medical care” for a Farmington man with work-related back injuries.

And in May 2014, the court ruled in favor of an injured worker in a case in which his employer, a Santa Fe auto mechanic shop, claimed reimbursing an employee for marijuana would force the business to break federal law.

New Mexico started its Medical Cannabis Program in 2007. More than 20 states have such programs.