Wednesday, May 21, 2014

NM & Medical Pot - No Big Deal

Big news of the day is that a Court of Appeal in the state of New Mexico supported an order from a workers' compensation judge mandating that the employer/carrier reimburse the injured worker for expenses related to acquisition of medical marijuana.

I know there's going to be lots of commentary about the validity of the court's action, and perhaps about the sanity of such a ruling, but the court was very, very careful in what it ruled and under New Mexico law it appears the it's rationale is sound.

Remember that workers' compensation is uniquely state based - each state defines what it wants its workers' compensation system to be, and most states have broad statues that cover work injury programs. Many states have constitutional provisions authorizing workers' compensation programs.

So the first argument that any entity objecting to medical marijuana in a workers' compensation context is going to raise is that doing so violates federal law.

The New Mexico court put this to rest quite readily because of the way that the workers' compensation judge issued his order: injured worker puts himself at risk by buying the goods first then is to seek reimbursement from the carrier.

What this does is puts the injured worker at risk, if any, of violating federal law (and that risk is increasingly low with every new state that adopts medical marijuana laws, and even lower in Washington and Colorado where recreational use has been authorized under state law).

The employer/carrier does not violate any law by reimbursing the injured worker. It may violate federal law by paying directly for the drugs, but reimbursement has not been held to be violative of any law; and certainly the employer/carrier could seek a directive from the Federal Department of Justice to either get out of reimbursement or obtain some clarification of liability.

But will the DoJ really take the time to deal with "big boys" who are likely perceived as just not wanting to pay for something? I doubt it...

In the New Mexico case the justices cite a DoJ memorandum that pretty much summarizes what is of concern to the federal government - getting pot into the wrong hands, doing anything with it on federal land or creating a public nuisance or danger.

The memo lists 8 areas "of concern" to the DoJ:

(1) Preventing the distribution of marijuana to minors;
(2) Preventing revenue from the sale of marijuana from going to criminal enterprises, gangs, and cartels;
(3) Preventing the diversion of marijuana from states where it is legal under state law in some form to other states;
(4) Preventing state-authorized marijuana activity from being used as a cover or pretext for the trafficking of other illegal drugs or other illegal activity;
(5) Preventing violence and the use of firearms in the cultivation and distribution of marijuana;
(6) Preventing drugged driving and the exacerbation of other adverse public health consequences associated with marijuana use;
(7) Preventing the growing of marijuana on public lands and the attendant public safety and environmental dangers posed by marijuana production on public lands;
(8) Preventing marijuana possession or use on federal property.

Is the New Mexico ruling going to change work comp? Nah ... there are many other areas of technical workers' compensation laws and regulations that eventually will come into play: fee schedules, treatment guidelines, utilization review, etc. In reality, just as in all other areas of medical treatment under workers' compensation schemes, medical marijuana will be highly regulated.

So for now, fire up a fat one and just chill dude...


  1. Folks might not remember where they put their authorization form!

  2. How is it our WA State AG can turn an eye to Federal Law when it comes to med MJ when taxing it? But deny access to it, in Workers Comp?

    The WA State AG's office if fighting me on my WC appeal to have my med mj covered.

    Because it is not list on the FDA ectt.... but yet if I do not pay tax on medical mj should I by it, and should the med mj venders not pay their taxes on it? Will not our AG come after us? So the State profits of taxing Med mJ. but does not want to pay for it in the State run work comp ins. systems? Hmm? Interesting hey?

    Is it not taxation with out representations?

    1. And the fact that the State of WA at this point would work to deny a patient their meds, is just abuse after three years of fighting with with them for harming me in my care to start with, or at least turning a blind eye to the harm. Folks should just get the care and help to start with with out all this litigation and having to prove what we traded our rights away to not have to prove. Any way I guess WA State Dems are just not as progressive as they pretend to be.