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.
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