Marijuana is still illegal under federal law. But a state court has told an employer and an insurance company to cover an injured worker’s medical marijuana.
Gregory Vialpando suffered a low back injury in 2000 while working for Ben’s Automotive Services in New Mexico.
In 2008, a workers’ comp judge determined Vialpando reached maximum medical improvement, and it was agreed he had a 99% permanent partial disability.
A doctor described Vialpando’s pain as “high intensity, multiple-site chronic muscle, joint and nerve pain … followed by failed back surgery.” The doctor said Vialpando’s pain was some of the worst he’d seen in his years of practice.
As a result, Vialpando had been taking multiple narcotic-based pain relievers and anti-depressant medications.
In 2013, Vialpando filed an application for approval by the workers’ compensation judge (WCJ) for medical marijuana. Two doctors certified him for the medical marijuana program.
The WCJ found Vialpando was qualified to participate in the medical marijuana program authorized by New Mexico’s Compassionate Use Act. The WCJ ordered Vialpando to pay for the medical pot, and Ben’s would reimburse him. His employer appealed this decision.
Ben’s took its case to the Court of Appeals of New Mexico and argued the WCJ’s order was illegal because the company would be required to violate federal law if it reimbursed Vialpando for his medical marijuana. Despite medical marijuana programs in 21 states, the U.S. Controlled Substances Act still considers pot to be an illegal drug.
The court noted the U.S. Department of Justice has identified eight areas of enforcement priority for marijuana. Outside of those priorities, the DoJ said it would defer to state and local authorities. Medical marijuana use wasn’t listed as an enforcement priority.
The DoJ also recently informed the governors of Colorado and Washington that it would defer its right to challenge laws allowing recreational pot in those two states.
The appeals court upheld the WCJ’s order. This sets up a situation in which workers’ comp insurance will pay for an employee’s authorized medical marijuana … at least in one state.
What do you think about the court’s decision? Let us know in the comments section.
(Gregory Vialpando v. Ben’s Automotive Services, Court of Appeals of NM, No. 32,920, 5/19/14)
