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Board erred in denying comp benefits for medical marijuana

Medical marijuana products

An insurer may be required to cover the cost of medical marijuana, held the Supreme Court of New Hampshire when it overturned a workers compensation appeals board decision denying an injured worker’s reimbursement request for therapeutic cannabis.

In Re Appeal of Panaggio, the state’s high court on Thursday determined in a unanimous decision that since workers compensation insurers provide payments for medical treatments, that they may be subjected to the same state statutes that cover medical cannabis as a viable medical treatment. However, the decision did not address whether the insurer could be prosecuted under federal law for offering the treatment and remanded that question back to the board.

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 cannabis for his ongoing pain, and the New Hampshire Department of Health and Human Services approved him as a patient and issued him a medical marijuana ID. He purchased medicinal cannabis and submitted the receipt to Chicago-based CNA Financial Corp., his workers comp insurer, which denied payment on the grounds that “medical marijuana is not reasonable/necessary or causally related” to his injury.

Mr. Panaggio appealed the denial. Although the New Hampshire Compensation Appeals Board found Mr. Panaggio’s use of cannabis as “reasonable and medically necessary” in a 2-1 decision, the board upheld CNA’s refusal to reimburse him on the grounds that it’s “not legal under state or federal law.”

Mr. Panaggio appealed, and the Supreme Court of New Hampshire reversed the board’s decision. Although CNA argued that state statutes create “an explicit prohibition to require an insurer to pay a claim for reimbursement” of medical marijuana, the court noted that the statue also states that a qualified patient shall not be denied the right of the therapeutic use of cannabis.

“(B)arring reimbursement of an employee with a workplace injury for his reasonable and necessary medical care is to ignore this plain statutory language,” the court said. “Thus, the effect of denying reimbursement of (Mr.) Panaggio under these circumstances is to deny him his right to medical care deemed reasonable under the Workers' Compensation Law.”

Although CNA argued that if it’s ordered to reimburse for medical marijuana it would be in express violation of federal laws, the court held that the appeals board failed to cite any legal authority for concluding that ordering reimbursement would expose the insurer to criminal prosecution or analyze whether CNA’s compliance with that order would violate federal statutes.

As a result, the court remanded that question back to the board.

Jared O’Connor, shareholder at the Concord, New Hampshire, law firm of Shaheen & Gordon PA, said he’s “pleased” that the New Hampshire Supreme Court held that state law does not bar his client from getting reimbursement for medical marijuana.

“It’s the step in the right direction for my client,” he said.

Neither CNA nor its attorneys in the case immediately responded to calls for comment.





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