By Barbara J. Koenig, JD, Jackson Loman Stanford & Downey
Medical marijuana remains a hot topic in the New Mexico workers’ compensation world. Injured workers with chronic pain conditions that cannot be successfully treated with prescription pain medications, including narcotics, have been increasingly turning to medical marijuana to relieve their symptoms. They then ask their employers to reimburse them for purchasing the marijuana, which raises concerns, from an employer’s viewpoint, about violating federal drug laws.
Workers, employers, and workers’ comp insurers have challenged claims for reimbursement by medical marijuana users on a variety of grounds. In the last 20 months, the New Mexico Court of Appeals has ruled in favor of workers who claimed in three separate lawsuits to be entitled to reimbursement for the cost of their medical marijuana. The cases all involved injured workers who were lawfully using medical marijuana for chronic pain caused by workplace injuries covered by workers’ comp.
In the first two cases, and more recently in the third case, the appeals court ordered the employers to reimburse the workers for the costs of their medical marijuana because using the drug to relieve pain was “reasonable and necessary” medical treatment authorized by their healthcare providers. If medical treatment for a workplace injury is authorized, reasonable, and necessary, the employer is financially responsible, through its workers’ comp carrier, for the treatment.
The most recent case raises the issue of how much evidence is required to support a finding that using medical marijuana to treat a workplace injury is reasonable and necessary under the New Mexico medical marijuana statute.