NY Court Hints that Employer Might be Required to Pay for Medical Marijuana

In the first appellate decision from New York to deal with the intersection of the state’s medical marijuana law with its Workers’ Compensation Law, a state appellate court recently held that while it was proper for the Workers’ Compensation Board to deny an injured employee’s variance request for medical care in the form of medical marijuana to the extent that such care had already been provided [see N.Y. Comp. Codes R. & Regs. tit. 12 § 324.3(a)(1)], the Board should have addressed the merits of the request for prospective medical marijuana treatment [Matter of Kluge v. Town of Tonawanda, 2019 N.Y. App. Div. LEXIS 7510 (3d Dept. Oct. 17, 2019)]. Its failure to do so required the case to be remanded for further proceedings. With this decision, the Court appeared to signal that, under appropriate circumstances, a variance request for medical marijuana could be granted.

Background

In 1997, claimant, a police officer, sustained work-related injuries when he slipped on icy pavement while at the scene of a motor vehicle accident. His claim was established for injuries to his lower back and right hip, and he was ultimately found to have sustained a permanent partial disability.

In August 2017, claimant’s treating physician filed an MG-2 form requesting authorization to treat with medical marihuana the chronic pain that claimant was experiencing from his work-related injuries. The employer’s workers’ compensation carrier denied the request. Claimant then filed a MG-2R form seeking review of the denial of the variance request.

Following a hearing, the WCLJ approved the variance request, but the Board reversed, finding that it could not approve a variance for treatment that already been rendered. Claimant appealed.

Medical Variance

In New York, a medical provider must seek authorization for medical care that varies from the Medical Treatment Guidelines, and, generally speaking, the burden is on the claimant to establish that the variance is appropriate for the claimant and medically necessary. Here, claimant’s treating physician detailed the beneficial effects that claimant had received with medical marijuana—e.g., improved sleep, reduced pain, better interaction with family, and general emotional improvement.

No Retroactive Variances

The Court acknowledged that the Board had properly denied the variance request for retroactive care, but indicated it should have considered the merits of the request for prospective marijuana treatment. Such a prospective request was not before the Court, but from the opinion, it appears that had the Board approved the variance for ongoing medical marijuana, the appellate court would have affirmed. We will need, of course, to await a case where that is, in fact, the issue.