Select Full Board and Panel Decisions

Case # G1403803
Matter of WDF Inc.
2017 NY Wrk Comp G1403803

By: Board Members Rodriguez, Foster and Paprocki

Ruling:

The carrier requests review of the Workers' Compensation Law Judge (WCLJ) decision filed on June 6, 2017. The claimant filed a timely rebuttal.

ISSUE

The issue presented for administrative review is whether the WCLJ properly directed the carrier to reimburse the claimant for medical and travel expenses relating to the purchase of medical marijuana.

FACTS

This case is established for work-related injuries to the claimant's neck and carpal tunnel syndrome relating to an accident that occurred on September 14, 2015. The claimant, a union plumber, suffered these injuries during years of carrying pipe and drilling overhead. The average weekly wage is set at $2,650.86.

By C-257 form (Claimant's Record of Medical and Travel Expenses and Request for Reimbursement) dated January 3, 2017, the claimant requested a reimbursement of $220.00 for "marijuana vaporization cartridges [and] pen" paid on November 30, 2016.

On January 17, 2017, the claimant filed an RFA-2 (Request for Further Action by Legal Counsel), requesting a hearing to address outstanding medical and travel reimbursements. A hearing was subsequently scheduled for April 5, 2017.

By C-257 form dated March 15, 2017, the claimant requested reimbursement for additional medical and travel expenses, including $200.00 for medical marijuana paid on January 16, 2017.

In a decision filed on April 10, 2017, the case was continued for litigation of the carrier's objection to payment for the claimant's medical marijuana prescription.

At a hearing held on June 1, 2017, the claimant argued that the medical marijuana had been legally prescribed by his pain management doctor, Dr. Christopher Perez, and the prescription allowed him to not be on opiates. The claimant produced his New York State medical marijuana card as evidence of the prescription's legality. The carrier countered that it should not be required to pay for the prescription because marijuana remains a controlled substance under federal law and the Board has given no specific guidance on the issue.

Following arguments, the WCLJ directed the carrier to reimburse the claimant for the medical marijuana prescription on the ground that medical marijuana is legal in New York. These findings were memorialized in a decision filed June 6, 2017.

The Board Panel takes notice that Dr. Perez is accredited by the New York State Department of Health to prescribe medical marijuana.

LEGAL ANALYSIS

The carrier argues on appeal that it should not be required to pay for the marijuana prescription because it is not specifically addressed in the Medical Treatment Guidelines; medical marijuana is illegal under the federal Controlled Substance Act; and federal law preempts state laws legalizing marijuana for medicinal use, including the New York State Compassionate Care Act.

The claimant contends that the prescription for marijuana was given in lieu of opiates, which are also controlled substances. He further maintains that medical marijuana is legal in New York and was properly prescribed.

According to the carrier, New York's legalization of marijuana pursuant to Title V-A of the Public Health Law ("Medical Use of Marijuana") is preempted by the federal Controlled Substances Act, which treats marijuana as a Schedule 1 controlled substance.

The Public Health Law permits marijuana to be prescribed to treat the following severe, debilitating or life threatening conditions: cancer, HIV infection or AIDS, amyotrophic lateral sclerosis (ALS), Parkinson's disease, multiple sclerosis, spinal cord injury with spasticity, epilepsy, inflammatory bowel disease, neuropathy, and Huntington's disease (see Public Health Law § 3360[7]). By rule adopted on March 22, 2017, the Department of Health added "chronic pain" to the list of conditions medical marijuana is approved to treat (see 10 NYCRR 1004.2[a][8][xi]). Patients must also have one of the following associated or complicating conditions: cachexia or wasting syndrome, severe or chronic pain, severe nausea, seizures, or severe or persistent muscle spasms (see Public Health Law § 3360[7][ii]; 10 NYCRR 1004.2[a][9]).

Neither the federal courts in the 2nd Circuit nor the New York Court of Appeals have found the Public Health Law invalid under federal preemption. Therefore, absent a directive by controlling authority, the Board Panel finds that Title V-A of the Public Health Law is valid and applicable law.

In addition, the Board Panel notes that current federal law provides that persons or entities operating within the confines of a state's legalized medical marijuana program will not be federally prosecuted. Particularly, the Rohrabacher-Blumenauer Amendment (formerly, the Rohrabacher-Farr Amendment) to the omnibus budget bill, extended through March 23, 2018, prohibits the U.S. Department of Justice from using federal funds to interfere with state medical marijuana programs or from prosecuting medical marijuana businesses that are compliant with state law, including New York's medical marijuana law.

WCL § 13(a) provides that "[t]he employer shall be liable for the payment of the expenses of medical, dental, surgical, optometric or other attendance or treatment, nurse and hospital service, [and] medicine ... for such period as the nature of the injury or the process of recovery may require." To advance the "economic and humanitarian objectives" of the WCL, the Board has compelled carriers to pay for wide-ranging treatment under the umbrella of "other attendance or treatment" where there is credible medical evidence of its necessity, from reimbursement for expenses incurred in connection with a change of climate to relieve the symptoms of bronchitis and emphysema (Matter of Clark v Fedders-Quigan Corp., 284 App Div 430 [1954]) to organic produce (Matter of Morrell v Onondaga County, 244 AD2d 695 [1997]) to reproductive treatment that occurred outside of claimants body so that he could impregnate his spouse (Matter of Spyhalsky v Cross Construction, 294 AD2d 23 [2002]). Compelling payment for medical marijuana under WCL § 13(a) follows the Board's and the Courts' liberal construction of the statute.

Although Public Health Law § 3368(2) provides: "Nothing in [Title V-A of the Public Health Law] shall be construed to require an insurer or health plan under th[at] chapter or the insurance law to provide coverage for medical marijuana" because the Board's authority to compel payment derives from WCL § 13, the limitations set forth in Public Health Law § 3368(2) are inapplicable. Further, the Board Panel finds that Public Health Law § 3368(2) extends only to health insurers and not workers' compensation carriers. "Insurer" is not defined in Title V-A or within the Public Health Law generally. Guidance can be gleaned from the Insurance Law, however, which differentiates between "accident and health insurance" (see Insurance Law § 113[3]) and "basic insurance," which includes workers' compensation insurance (see Insurance Law § 4101[a]). The placement of the word "insurer" within the Public Health Law indicates that it was meant to refer only to health insurance, as defined in the Insurance Law, and not basic insurers, such as workers' compensation carriers.

To the extent that prior Board decisions have denied payment for medical marijuana, the Board Panel finds such cases inapposite. In Matter of Cohen Technology, Inc. (2016 NY Wrk Comp 30004635) and Matter of M&T Bank (2015 NY Wrk Comp G0406321), the Board denied payment for Marinol (a prescription drug derived from marijuana), which had been prescribed to treat chronic pain related to an established injury. However, at the time Cohen Technology, Inc. and M&T Bank were decided, chronic pain was not a condition authorized for medical marijuana treatment under Public Health Law § 3360(7). As chronic pain has now been added as an authorized condition for medical marijuana treatment, these cases are not controlling.

Although the Board Panel finds that compelling payment for medical marijuana is permissible under the Public Health Law and WCL, the WCL also requires compliance with the Medical Treatment Guidelines (MTGs). To this extent, the Board Panel agrees with the carrier that the WCLJ's directive violated the MTGs insofar as the claimant's treating medical provider failed to request a variance to treat the claimant with medical marijuana.

MTGs for the mid and low back, neck, knee, and shoulder were adopted by the Chair of the Workers' Compensation Board on November 3, 2010, when subchapter C of Title 12 NYCRR was amended to add new Part 324. The MTGs apply to all treatment provided to their respective body parts on or after December 1, 2010, regardless of the accident date or the date of disablement (12 NYCRR 324.2[a]). The MTGs were amended in 2013 and 2014 to add treatment for carpal tunnel syndrome and non-acute pain. Except for occasions when a variance request to depart from the MTGs has been approved by the self-insured employer/insurance carrier or authorized by the Board, treating providers must treat all existing and new work-related injuries, illnesses, or occupational diseases involving those body parts in accordance with the MTGs.

Pursuant to 12 NYCRR 324.3(a)(1), "[w]hen a Treating Medical Provider determines that medical care that varies from the [MTGs] ... is appropriate for the claimant and medically necessary, he or she shall request a variance from the insurance carrier or Special Fund by submitting the request in the format prescribed by the Chair for such purpose. A variance must be requested and granted by the carrier, Special Fund, the Board or order of the Chair before medical care that varies from the [MTGs] is provided to the claimant and a request for a variance will not be considered if the medical care has already been provided." The burden of proof to establish that a variance is appropriate for the claimant and medically necessary rests on the treating medical provider requesting the variance (see 12 NYCRR 324.3[a][2]).

Here, it appears that the claimant was prescribed medical marijuana to treat chronic pain associated with his established neck and/or carpal tunnel injuries. The record demonstrates that the marijuana was prescribed by the claimant's pain management doctor, Dr. Perez, who indicated on an MG-2 (Attending Doctor's Request for Approval of Variance), filed May 31, 2017 (which was filed regarding other treatment; not for medical marijuana), that he had prescribed a THC vape to help relieve the claimant's neck and arm pain. As such, the claimant's treating medical provider was required to adhere to the Board's Non-Acute Pain Guidelines.

The New York State Legislature has approved marijuana for specific medical uses, as set forth in Title V-A of the Public Health Law, and the New York State Department of Health has delineated a process by which patients can legally obtain medical marijuana and medical providers can prescribe it. Accordingly, the Board Panel finds that medical marijuana may be prescribed to treat conditions or sites of injury covered by the MTGs where the treating medical provider has obtained a variance to establish that the medical marijuana is medically necessary and treatment pursuant to the MTGs is not appropriate or sufficient.

Additionally, where, as here, the variance is sought to treat a claimant for chronic pain, the treating medical provider bears the burden of proving that the claimant suffers from chronic pain per the Department of Health's criteria. That is, the treating medical provider must show that the claimant experiences "severe debilitating pain that the practitioner determines degrades health and functional capability; where the patient has contraindications, has experienced intolerable side effects, or has experienced failure of one or more previously tried therapeutic options; and where there is documented medical evidence of such pain having lasted three months or more beyond onset, or the practitioner reasonably anticipates such pain to last three months or more beyond onset" (10 NYCRR 1004.2(a)[8][xi]).

The treating medical provider failed to obtain such a variance prior to prescribing medical marijuana in this case. The Board Panel therefore finds that the WCLJ's authorization for the use of medical marijuana and directive to the carrier to reimburse the claimant warrants reversal.

The Board Panel notes, however, that had the claimant's treating medical provider obtained a variance, the WCLJ would have had the authority to direct the carrier to reimburse the claimant for medical marijuana as a medical and travel expense. The Board Panel finds that such authority stems from the evidence that the claimant's treating medical provider is both accredited by the Department of Health to prescribe medical marijuana and authorized to treat workers' compensation claimants. Additionally, the medical marijuana was prescribed to treat the claimant's chronic pain, which is a condition authorized for medical marijuana treatment under Public Health Law § 3360(7), and the claimant's chronic pain is related to an established site of injury.

CONCLUSION

ACCORDINGLY, the WCLJ decision filed on June 6, 2017, is RESCINDED. No further Board action is planned at this time.

All concur.