Alexander Hymowitz: Medical Marijuana and Worker’s Compensation in New York

Alexander Hymowitz: Medical Marijuana and Worker’s Compensation in New York
CANNANNEW REPORT

Medical Marijuana and Worker’s Compensation in New York  Alexander Hymowitz The recently decided case of Matter of Quigley v. Vill. of E. Aurora, 2021 NY Slip Op 01174, 193 A.D.3d 207, 142 N.Y.S.3d 636 (App. Div. 3rd Dept.) makes it abundantly clear that the cost of medical marijuana is a reimbursable expense for patients who are prescribed medical marijuana by their doctor under their worker’s compensation claim. Issue The issue in this case is whether an employer, under the workers compensation laws of New York, is required to reimburse a patient for medical marijuana, which was prescribed as a form of pain treatment? Ruling An employer is required to reimburse an employee for medical marijuana when that patient was given a variance for medical marijuana treatment for chronic pain. Analysis In this case, the court explicitly explains that “Public Health Law and its accompanying regulations authorize the use of medical marihuana to treat certain enumerated and serious conditions, including — as relevant here — chronic pain.[1][2] The Workers’ Compensation Law also requires that treatment be rendered in accordance with its Medical Treatment Guidelines. As was the scenario in this case, “When a treating medical provider determines that medical care that varies from the Medical Treatment Guidelines is warranted, he or she “shall request a variance from the insurance carrier” by submitting such request in the prescribed form.[3] “The burden of proof to establish that a variance is appropriate for the claimant and medically necessary shall rest on the treating medical provider requesting the variance”. One such variance that a doctor can request is the use of medical marijuana. The treating physician, Dr. Hart submitted, among other things, “her August 2018 report, detailing claimant’s history of chronic and severe upper right extremity pain because of his February 2004 work-related injury, the functional limitations…

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