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Medical Marijuana Reimbursement Update

Kaufman Workers' Compensation Law March 11, 2019

No, New Hampshire Did Not Just Direct a Carrier to Reimburse an Injured Worker for Their Medical Marijuana Costs, But...

You can read about my analysis of the case and my thoughts on the future of MMJ reimbursement in New Hampshire and Pennsylvania in Monday's edition of Workcompcentral:

The Case: Appeal of Andrew Panaggio, No. 2017 -0469 (March 7, 2019 Opinion of New Hampshire Supreme Court.)

You may have seen articles on the internet stating that the New Hampshire Supreme Court has ordered a comp carrier to reimburse an injured worker for his out-of-pocket MMJ costs, reversing the lower court. The truth is a lot more nuanced.

The Supreme Court actually vacated the prior decision of the New Hampshire Workers' Compensation Appeal Board and remanded the case back to them. The lower court was directed to write a more reasoned decision.

The facts are commonplace enough, a worker sustains a career-ending injury in 1991. He eventually gets on medical marijuana and seeks to have his carrier reimburse his out-of-pocket costs. The lower court finds the treatment to be reasonable and necessary but declines to direct reimbursement due to illegality under federal law. This appeal followed.

The Supreme Court reversed and remanded because it found that the Board did not explain in its prior decision how a carrier's reimbursement would violate Federal Law. The lower decision simply said that "possession of medical marijuana is still a federal crime." No legal authority was cited for this conclusion by the Board, especially one that would support a finding that the requested reimbursement "would expose the carrier to criminal prosecution under federal law."

We shall see what the Board does with this. Certainly, the Supreme Court decision suggests reimbursement would not violate Federal law and would be in keeping with the humanitarian goals of the workers' compensation act as well as its requirement of payment for reasonable medical treatment.

As an interesting side note, the Supreme Court mentions that, in its opinion, if a state wants to bar reimbursement for MMJ costs, it should do so in its medical marijuana statute. If the statute is silent on this (like in Pennsylvania), it should be presumed that the legislative intent was to permit reimbursement. The court then noted that several other states' laws prohibit both coverage and reimbursement.