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Worker gets 2nd court victory over medical marijuana claim

March 2, 2021 GMT

CONCORD, N.H. (AP) — A man who was prescribed medical marijuana to help with back pain has won a second victory in his legal battle over whether workers’ compensation insurance can reimburse him for the cost, the New Hampshire Supreme Court determined Tuesday.

The court ruled in favor of Andrew Panaggio, saying “we are not persuaded” by the state’s arguments that an insurance carrier, under the federal Controlled Substances Act, could be prosecuted for aiding and abetting a marijuana possession crime if it has to reimburse Panaggio.

In 2019, the court had ruled that a state labor appeals board was wrong to determine that workers’ compensation insurance couldn’t reimburse Panaggio. But the federal law question was unresolved.

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Panaggio had hurt his back at work and was approved by the state Department of Health and Human Services to participate in a therapeutic cannabis program in 2016. He used the medical marijuana to treat ongoing pain and sought reimbursement through workers’ compensation. The labor board found Panaggio’s treatment “medically necessary,” disagreeing with the insurance carrier, but it still denied payment because “possession of marijuana is still a federal crime” that could expose an insurance carrier to prosecution.

The New Hampshire court noted Tuesday that other courts have considered whether the Controlled Substances Act preempts a state order requiring medical marijuana reimbursement, and that the results are mixed. In a 2018 case in Maine, the state supreme court ruled against a paper mill worker who was disabled after being hurt on the job in 1989. But last year, in New Jersey, an appeals court ruled that a contractor must reimburse a former employee for the cost of medical marijuana that he uses to treat pain from a work-related injury.

At least five states have found medical marijuana treatment is reimbursable under their workers’ compensation laws, and other states have proposed similar laws, according to the National Council on Compensation Insurance. Several states have passed laws excluding medical marijuana treatment from workers’ compensation reimbursement.