New Hampshire High Court Rules Board Wrong to Deny Workers’ Comp for Medical Pot

March 8, 2019

The New Hampshire Supreme Court has ruled that a labor appeals board was wrong to determine that workers’ compensation insurance can’t reimburse an employee for the cost of medical marijuana.

The court found that under the state’s medical marijuana law, a carrier is not banned from reimbursing and that a qualified patient is entitled to medical marijuana under state law. But the court sent the case back for further consideration of the effect of federal law that makes possession or use of marijuana a federal crime.

Andrew Panaggio hurt his back at work and was approved by the state Health Department to participate in the therapeutic cannabis program and receive medical marijuana for his ongoing pain in 2016. He sought reimbursement through workers’ compensation, but his insurance carrier, CNA Insurance Co., denied it on the ground that “medical marijuana is not reasonable/necessary or causally related” to his injury.

Panaggio challenged the insurance carrier’s denial before the New Hampshire Department of Labor. The hearing officer found that Panaggio had “failed to satisfy his burden of proof that the outstanding medical treatment is reasonable, related or made necessary by the work injury.” Therefore, the officer concluded that “reimbursement and payment of expense associated with the medicinal marijuana cannabis is not reasonable.”

Panaggio appealed the hearing officer’s decision to the workers’ compensation board. Following a hearing, the board rejected the insurance carrier’s position that Panaggio’s use of medical marijuana was not medically reasonable or necessary. The board credited Panaggio’s testimony that “cannabis is palliative and has the added benefit of reducing his need for opiates,” and unanimously found that Panaggio’s “use is reasonable and medically necessary.”

Nonetheless, a majority of the board upheld the carrier’s refusal to reimburse Panaggio, concluding that “the carrier is not able to provide medical marijuana” because such reimbursement is “not legal under state or federal law.”

On further appeal, the high court noted in its opinion that although the statute does not create a right to reimbursement for the cost of medical marijuana nor require any of the listed entities to participate in the therapeutic cannabis program, “neither does it bar any of those entities from providing reimbursement” and the statute also says that a “qualifying patient shall not be . . . denied any right or privilege for the therapeutic use of cannabis in accordance with this chapter.”

To read the law as barring reimbursement of an employee with a workplace injury for his reasonable and necessary medical care is to ignore this plain statutory language, the court found..

Because the board found that Panaggio’s use of medical marijuana is reasonable, medically necessary, and causally related to his work injury, the high court said the board erred when it determined that the insurance carrier is prohibited from reimbursing Panaggio for the cost of purchasing medical marijuana.

The insurance carrier argued that if it is ordered to reimburse the employee for the payment of medical marijuana, “it would be in express violation” of federal laws that prohibit a person from knowingly possessing marijuana.

Panaggio argued that the board, having noted only that Panaggio’s possession and use of medical marijuana is a federal crime, “did not explain why it necessarily follows that the carrier may not separately be ordered to comply with its own independent state law obligation to reimburse claimants for related medical treatment.”

On the state vs. federal matter, the high court said the board failed to provide an adequate explanation of its reasoning regarding federal law. On those issues, it remanded the mater to the board for further consideration.

The opinion is An Appeal of Andrew Panaggio.

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