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Court: Board wrong to deny workers’ comp for medical pot

March 7, 2019
This Tuesday, Sept. 11, 2018, file photo shows a budding marijuana plant within weeks of the harvest at SLOgrown Genetics in the coastal mountain range of San Luis Obispo, California. The New Hampshire Supreme Court has ruled that a labor appeals board was wrong to determine that workers' compensation insurance can't reimburse an employee for the cost of medical marijuana. (AP Photo/Richard Vogel, File)

CONCORD, N.H. (AP) — A labor appeals board was wrong to determine that workers’ compensation insurance can’t reimburse an employee for the cost of medical marijuana, according to a New Hampshire Supreme Court decision released Thursday. But the court left unresolved whether an insurance company can be prosecuted for it under federal law.

The court ruled in favor of reimbursement for Andrew Panaggio, 59, who hurt his back at work and was approved by the state Health Department to participate in the therapeutic cannabis program in 2016. He used the medical marijuana to treat the ongoing pain and sought reimbursement through workers’ compensation, but his insurance carrier denied it on the grounds it wasn’t necessary.

He sent the case back to the board, which found therapeutic cannabis “medically necessary” for him. But it still denied payment because “possession of marijuana is still a federal crime” that could expose an insurance carrier to criminal prosecution. The court said the board didn’t cite any legal authority or identify a federal statute in its decision.

“It’s been an emotional rollercoaster,” said Panaggio, a former chemical worker in Nashua, New Hampshire, who was injured in 1991 and has been fighting for insurance coverage ever since.

“It’s a little disheartening,” he said of the court’s opinion. “But, we live for another day.”

After his insurance carrier denied his reimbursement claim, Panaggio appealed to the state compensation appeals board. It rejected the insurance carrier’s argument, crediting his testimony that medical marijuana reduced his need for opiates and that his use of it was reasonable and medically necessary. But it still denied reimbursement.

In addition to the prosecution issue, the board noted the state therapeutic cannabis law says nothing in the statute “shall be construed to require” health insurance providers to be liable for medical marijuana reimbursement claims. It said that also applied to workers’ compensation carriers, too, which aren’t specifically mentioned. The court said the state workers’ compensation law doesn’t deny such reimbursement.

The case is not the first to address whether employers should have to pay for medical marijuana under a state workers’ compensation system. Last year in Maine, the state supreme court ruled against a paper mill worker who was disabled after being hurt on the job in 1989.

The court ruled that federal law takes precedence in a conflict between the federal Controlled Substances Act and the state medical marijuana law.

At least five states — Connecticut, Maine, Minnesota, New Jersey and New Mexico — have found medical marijuana treatment is reimbursable under their workers’ compensation laws, according to the National Council on Compensation Insurance.

Florida, North Dakota, and Michigan, meanwhile, passed laws excluding medical marijuana treatment from workers’ compensation reimbursement.

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