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N.M. compassionate use law allows workers comp coverage for medical pot: Court


A New Mexico employer must pay for an injured worker's medical marijuana prescription under a state “compassionate use” law, the New Mexico Court of Appeals has ruled, even though the employer and its workers compensation insurer argued such payments would be illegal under federal law.

Gregory Vialpando was injured in June 2000 while working for Ben's Automotive Services in Santa Fe, New Mexico, according to court records. The business was insured for workers comp at the time of Mr. Vialpando's accident by Redwood Fire & Casualty Insurance Co., a division of Omaha, Nebraska-based Berkshire Hathaway Homestate Cos.

In 2008, a New Mexico workers comp judge determined that Mr. Vialpando had reached maximum medical improvement and had a 99% permanent partial disability, records show. A doctor had described Mr. Vialpando's pain as including “high intensity multiple-site chronic muscle, joint and nerve pain directly resulting from back injury, followed by failed spinal surgery,” and Mr. Vialpando was taking multiple narcotic medications and antidepressants at that time.

Based on Mr. Vialpando's severe chronic pain, his health care provider and another doctor certified him to be treated with medical marijuana, according to court filings. Mr. Vialpando asked a workers comp judge to approve his medical marijuana treatment.

The judge found that Mr. Vialpando was entitled to “ongoing and reasonable medical care” that had been authorized by his providers and that he was qualified to participate in New Mexico's medical marijuana program under the state's Compassionate Use Act, records show. The 2007 act provides legal protection for medical marijuana use to patients who suffer various conditions, including severe chronic pain.


The workers comp judge ordered Mr. Vialpando to pay for his medical marijuana, and ordered Ben’s Automotive and Redwood to reimburse him. The employer and insurer appealed, arguing in part that marijuana is a controlled substance under federal law, and paying for it would be a federal crime.

A three-judge panel of the New Mexico Court of Appeals unanimously upheld the workers comp judge’s ruling on Monday.

The court’s decision noted that the federal Controlled Substances Act defines marijuana as “generally illegal to use or possess” except in cases of federally approved research. However, the court said that Ben’s Automotive and Redwood had not challenged the legality of New Mexico’s Compassionate Use Act under the federal Controlled Substances Act.

Further, the court noted that the U.S. Department of Justice has generally deferred to state and local laws on enforcing marijuana use except in high-priority cases, such as distribution of marijuana to minors or illegal trafficking of marijuana.

“In addition, the Department of Justice stated that it informed the governors of Washington and Colorado, two states that voted to legalize possession of marijuana and regulate its production and distribution, that it would defer its right to challenge those laws,” the ruling reads. “We also observe that New Mexico public policy is clear. Our State Legislature passed the … Compassionate Use Act ‘to allow the beneficial use of medical cannabis in a regulated system for alleviating symptoms caused by debilitating medical conditions and their medical treatments.’”