Alexander Hymowitz: Medical Marijuana and Worker’s Compensation in New York

Medical Marijuana and Worker’s Compensation in New York

The recently decided case of Matter of Quigley v. Vill. of E. Aurora, 2021 NY Slip Op 01174, 193 A.D.3d 207, 142 N.Y.S.3d 636 (App. Div. 3rd Dept.) makes it abundantly clear that the cost of medical marijuana is a reimbursable expense for patients who are prescribed medical marijuana by their doctor under their worker’s compensation claim.

Issue

The issue in this case is whether an employer, under the workers compensation laws of New York, is required to reimburse a patient for medical marijuana, which was prescribed as a form of pain treatment?

Ruling

An employer is required to reimburse an employee for medical marijuana when that patient was given a variance for medical marijuana treatment for chronic pain.

Analysis

In this case, the court explicitly explains that “Public Health Law and its accompanying regulations authorize the use of medical marihuana to treat certain enumerated and serious conditions, including — as relevant here — chronic pain.[1][2] The Workers’ Compensation Law also requires that treatment be rendered in accordance with its Medical Treatment Guidelines. As was the scenario in this case, “When a treating medical provider determines that medical care that varies from the Medical Treatment Guidelines is warranted, he or she “shall request a variance from the insurance carrier” by submitting such request in the prescribed form.[3] “The burden of proof to establish that a variance is appropriate for the claimant and medically necessary shall rest on the treating medical provider requesting the variance”.

One such variance that a doctor can request is the use of medical marijuana. The treating physician, Dr. Hart submitted, among other things, “her August 2018 report, detailing claimant’s history of chronic and severe upper right extremity pain because of his February 2004 work-related injury, the functional limitations associated therewith and the impact that this has had on his activities of daily living, including limitations on his ability to drive, bathe, dress and perform household chores. Hart indicated that claimant had suffered from chronic pain because of this injury for more than three months since same and documented the history of claimant’s prior surgeries and treatments, including injections, physical therapy, aqua therapy, a home exercise program and use of a TENS unit and scooter, noting the limited therapeutic benefit that they had provided to date.”

Dr. Hart filled out an MG-2 variance form requesting authorization to use medical marihuana to treat the claimant’ chronic pain resulting from his work-related injuries. Claimant was a police officer, who has two established workers’ compensation claims — one involving a concussion and injuries to his right wrist and elbow (later amended to include his right shoulder) stemming from a February 2004 incident where he slipped and fell on black ice while at work, and the other involving a 1998 work-related injury to his low back.

Once Claimant was granted the variance by the worker’s compensation board, the worker’s compensation insurance plan was required to cover the medical marijuana. The court continues by explaining that, “pursuant to Workers’ Compensation Law § 13 (a), the employer is liable “for the payment of the expenses of medical, dental, surgical, optometric or other attendance or treatment, nurse and hospital service, [and] medicine . . . for such period as the nature of the injury or the process of recovery may require.”

The court goes on to explain that, “the Workers’ Compensation Law draws a distinction between “an insurer or health benefits plan” and an employer or its workers’ compensation carrier, providing that, “[i]n the event that an insurer or health benefits plan makes payment for medical and/or hospital services for or on behalf of an injured employee[,] they shall be entitled to be reimbursed for such payments by the carrier or employer within the limits of the . . . fee schedules if the [B]oard determines that the claim is compensable”[4].

The court concludes, “In consideration of this distinction and given the economic and humanitarian purposes underlying the Workers’ Compensation Law, coupled with the fact that a plain language reading of Public Health Law § 3368 (2) reveals that no exemption for workers’ compensation carriers was provided for in the statute, it is apparent that the Legislature did not intend to exempt workers’ compensation carriers from the obligation to reimburse injured claimants for their medical marihuana expenses.”

Thus, the court reviewed Hart’s detailed and specific report and found that the Board’s decision to grant the requested variance to treat claimant’s chronic pain with medical marijuana was supported by substantial evidence and, as such, the claimant’s cost of medical marijuana was a reimbursable expense.

Conclusion

The court was very clear when they wrote, “No reference is made in the text of the statute to an exemption from coverage [for medical marijuana] under the Workers’ Compensation Law. If the Legislature intended for said exemption to apply to workers’ compensation insurance carriers, it certainly could have included such language in the text of the statute; it chose not to.” Therefore, the court was expressly clear — workers’ compensation insurance carriers are required to cover medical marijuana when a variance is granted by the worker’s compensation board.

Takeaways

1) The court was clear that a variance is required for medical marijuana to be considered part of the medical treatment of an employee. The only way to get the variance is for the prescribing physician to fill out an MG-2 variance form which can be found here: http://www.wcb.ny.gov/content/main/forms/MG2.pdf

2) The court explained that there is a difference between taking medical marijuana prior to receiving the board’s variance and after getting the variance. The court wrote, “the Board has rejected variance requests where, as here, the claimant began treating with medical marihuana prior to the submission of the variance[5],[6], the Board decided not to dismiss the subject variance request on this basis, citing claimant’s reduction in pain, increased energy and decreased opioid use.”

3) Although it seems obvious, it is important to note that the court saw the medicinal value of marijuana. In fact, they explained that medical marijuana is a treatment option for treating chronic pain and for reducing an individual’s reliance on opiates.

4) Other states are also following this trend of allowing variances for medical marijuana. In fact, the New Hampshire Supreme Court has said, “The CSA does not criminalize the act of insurance reimbursement for an employee’s purchase of medical marijuana.”[7]


[1] 10 NYCRR 1004.2 [a] [8] [xi]

[2] Public Health Law §§ 3360 [7] [a]

[3] 12 NYCRR 324.3 [a] [1]

[4] Workers’ Compensation Law § 13 [d] [1

[5] 12 NYCRR 324.3 [a] [1] [ii]

[6] Matter of Kluge v Town of Tonawanda, 176 AD3d 1370, 1371 [2019

[7] Sams, J., 2021. Courts in N.Y., N.H. Rule Workers’ Comp Should Cover Marijuana Costs for Injured Workers. [online] Claims Journal.

Alexander Hymowitz
New York Law School | + posts

Alexander is a third-year law student at New York Law School. Alex is interested in the legacy market, social-equity and regulatory scheme differences between states.

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