The New Hampshire Supreme Court on Tuesday again remanded a workers compensation medical marijuana reimbursement claim, demanding a better explanation from the state’s workers compensation appeals board on its decision to deny it.

The court directed the appeals board to “articulate the law” supporting its conclusion that asking an insurer to reimburse for medical marijuana would violate federal law. The case is In Re Appeal of Panaggio.

Andrew Panaggio suffered a work-related injury in 1991 and received a lump-sum settlement in 1997 after his permanent impairment award was approved. He sought therapeutic marijuana for his ongoing pain, which was approved by the New Hampshire Department of Health and Human Services, and submitted a receipt for its cost to workers compensation insurer CNA Financial Corp.

CNA denied payment on the grounds that “medical marijuana is not reasonable/necessary or causally related” to his injury

Although the New Hampshire Compensation Appeals Board found Mr. Panaggio’s use of medical marijuana “reasonable and medically necessary,” the board upheld CNA’s refusal to reimburse him on the grounds that it’s “not legal under state or federal law.”

In March 2019, New Hampshire Supreme Court overturned the appellate board’s decision, remanding the case back to the board. It asked the board to cite applicable legal authority to support its conclusion that ordering reimbursement would expose CNA to criminal prosecution and violate federal statutes.

The board again held that asking the insurer to pay for the medical marijuana would be “aiding and abetting Mr. Panaggio's illicit purchase and possession” of the drug.

The Supreme Court disagreed, noting that aiding and abetting “requires voluntary participation” and that the insurer’s compliance with a court or board order to reimburse Mr. Panaggio would “not constitute voluntary participation.”

The court also dismissed CNA’s argument that requiring it to reimburse for medical marijuana would result in “obstacle preemption,” essentially frustrating Congress’s intent “to control and regulate the traffic and use of controlled substances.” The court held that the high threshold for obstacle preemption had not been met.