Two of the biggest questions around the legalization of
marijuana are: 1) whether or not the carrier or self-insured employer is going to
have to pay for it; and 2) whether or not that payment violates federal law.
New Mexico just answered the first question for payers in
their state. The Court of Appeals just released its decision in the
Vialpando v. Ben’s Automotive Services and Redwood Fire and Casualty case, in
which they upheld the WCJ’s decision to require the carrier to reimburse the
injured worker for his medical marijuana expense.
Under the New Mexico Workers’ Compensation Act, an employer
is required to provide the injured worker “reasonable and necessary healthcare
services from a health care provider.” Section 52-1-49(A) The decision
focuses on the definition of health care provider, and whether or not marijuana
is a prescription drug or a service. At no time does the court bring up
the fact that the treatment with medical marijuana might not be medically
necessary nor in line with evidence based medicine.
New Mexico recently adopted medical treatment guidelines,
and on July 1, 2013, the Official Disability Guidelines went into effect and
all medical services rendered pursuant to the most current version of ODG is
presumed reasonable and necessary.
With respect to the use of medical marijuana, the Official
Disability Guidelines state that medical marijuana is “not recommended for
pain” treatment. Therefore, it is unlikely that a health care provider in
that state could consider it reasonable and necessary treatment.
Perhaps the issue of reimbursement, which could potentially
violate federal law, could have been avoided altogether by making an evidence based medical argument first, and the legal/procedural argument
next. After all, we are ultimately talking about appropriate medical
treatment, which is a clinical issue that should be discussed and determined by
clinicians, not lawyers and judges.
Your thoughts?
Michael
Follow me on Twitter @PRIUM1
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