New Mexico Supreme Court Lets Stand Appeals Court Ruling That Workers’ Compensation Can Cover Medical Marijuana

The Supreme Court of New Mexico has decided not to disturb a Court of Appeals decision which held that if medical marijuana is recommended by a physician to treat an employee’s pain resulting from a workplace injury, the employer and their workers’ compensation insurer must pay for it.

The July 25th decision by the New Mexico Supreme Court to deny what is called a Petition for Writ of Certiorari in the case of Vialpando v. Ben’s Automotive, means that the appellate court’s May decision permitting benefits for medical pot will stand.

Gregory Vialpando had suffered a serious back injury while on the job. After failed surgeries to fix his injury, he continued to suffer from what his doctor described as “some of the most extremely high intensity, frequency, and duration of pain, out of all of the thousands of patients I’ve treated within my 7 years practicing medicine.” As such, the doctor deemed medical marijuana “reasonable and necessary” to alleviate that pain, and Vialpando was approved to participate in the New Mexico Department of Health’s Medical Cannabis Program.

Vialpando’s employer, Ben’s Automotive Services, and its workers’ compensation insurer, Redwood Fire & Casualty, argued that medical marijuana should be treated as a prescription drug and that the state’s medical marijuana program is not a licensed pharmacist or health care provider.

The appeals court found that “medical marijuana is not a prescription drug,” but if it were, “our analysis would lead to the same conclusion.”

“Indeed, medical marijuana is a controlled substance and is a drug. Instead of a written order from a health care provider, it requires the functional equivalent of a prescription – certification to the program. Although it is not dispensed by a licensed pharmacist or health care provider, it is dispensed by a licensed producer through a program authorized by the Department of Health,” the court wrote.

The appellate court also rejected the argument that paying for the medical marijuana would cause the employer and insurer to violate federal law and public policy since marijuana remains a prohibited Schedule I drug under federal law.

“However, employer does not cite to any federal statute it would be forced to violate, and we will not search for such a statute,” Court of Appeals Judge James J. Wechsler wrote for the unanimous three-judge panel, adding that “Although not dispositive, we note that the Department of Justice has recently offered what we view as equivocal statements about state laws allowing marijuana use for medical and even recreational purposes.”

My take: Because marijuana has been illegal in all states until recently, and is still illegal federally, there have not been many scientific studies of its efficacy to treat back pain. Initial anecdotal reports (observations by patients and physicians without scientific proof) are that patients who are being prescribed medical marijuana are able to completely eliminate the use of such narcotics such Oxycontin and Oxycodone.

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