New Mexico: Workers’ Comp Must Cover Medical Pot

Injured while on the job? The cost of your medical marijuana may be covered by workers’ compensation. So ruled the New Mexico Court of Appeals in the case Vialpando v. Ben’s Automotive Services and Redwood Fire & Casualty.

The litigant, Gregory Vialpando, suffered a permanent lower back injury on the job in 2000. In recent years, Vialpando began using cannabis under a doctor’s authorization to treat debilitating pain from that injury. Since Vialpando’s cannabis use is licensed by the state, he sought financial compensation for his treatment from his former employer and insurer. Both parties balked at his request, stating that they should not be compelled to provide financial support for a substance deemed federally illegal.

The Court of Appeals disagreed. Writing for the three-member court, Judge James Wechsler called the Fed’s present attitudes toward pot to be “equivocal,” citing the recent Justice Department’s memo<> pledging non-interference in Colorado and Washington. By contrast, the Judge determined that “New Mexico public policy is clear.”

He wrote: “Our state legislature passed the Lynn and Erin Compassionate Use Act ‘to allow for the beneficial use of medical cannabis in a regulated system for alleviating symptoms caused by debilitating medical conditions and their medical treatments.’” The Judge agreed that the litigant’s use of marijuana constituted “reasonable and necessary care” and that such health care services are “embraced” under state law, even if they do not come directly from a state-licensed pharmacy.

“By defining ‘services’ as including a product from a supplier that is reasonable and necessary for a worker’s treatment, the regulations do not contemplate that every aspect of a worker’s reasonable and necessary treatment be directly received from a health care provider. Such a requirement would be unworkable. A worker’s treatment may well require services that are not available from a health care provider. The most obvious of such services may be medical supplies or equipment,” the appeals court ruled. In doing so, it upheld a previous order by a state workers’ compensation judge.

The New Mexico Court of Appeals ruling is one of the first favorable court decisions involving cannabis and workers’ rights. To date, the Supreme Courts of three states — California, Oregon, and Washington — have determined that state laws authorizing the physicians-supervised use of medical cannabis do not exempt patients from being fired for their off-the-job marijuana use. The Supreme Court for the state of Colorado is expected to rule<> on a similar matter imminently.

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