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Worker's Comp Covers Prescription Pot: N.M. Court

By Brett Snider, Esq. | Last updated on

A New Mexico man has won the right to toke medical marijuana on his employer's dime, as a New Mexico court ruled that his prescription pot must be covered by worker's comp.

Gregory Vialpando, 55, was a mechanic with Ben's Automotive Services, and his employer and its insurer, Redwood Fire & Casualty, refused to reimburse him for using medical marijuana as treatment for a back injury. Reuters reports that Tamar Todd, a staff attorney with the Drug Policy Alliance, believes this case may be "fairly unique" in allowing a worker to be paid for his medical cannabis.

How did prescription pot get covered, and is Vialpando's case likely to be emulated in other states?

Medical Marijuana Is 'Reasonable and Necessary'

Let's start with the basics: New Mexico is one of dozens of states which have legalized medical marijuana for the treatment of chronic, severe, and/or terminal illnesses and conditions. Among the conditions covered under the state's medical cannabis laws is severe chronic pain, which Vialpando claimed he had as a result of a lower back injury in 2000.

After years of taking multiple narcotic-based pain relievers and antidepressants for his back pain, in April 2013, Vialpando applied with a worker's comp judge for approval of treatment with medical marijuana. The judge ruled that Vialpando was both qualified to receive medical cannabis under the state's medical marijuana program and that this constituted "reasonable and necessary medical care" under his worker's comp -- meaning his employer and its insurer would have to pay for it.

The appellate court found that despite medical marijuana not being provided by a doctor, it should be covered under Vialpando's worker's comp as it is "reasonable and necessary" to treating him.

What About Federal Law?

We've noted before that other state courts have found that businesses can fire medical cannabis patients despite participation in a state-legalized program because marijuana is still illegal under federal law. The U.S. Supreme Court has ruled that federal law trumps state law in this arena, so Vialpando's employer was hoping the conflict would get it off the hook for the mechanic's medical marijuana.

However, in a strange twist, the New Mexico court noted that the employer didn't cite to any federal law it would be forced to violate, and the court "[would] not search for such a statute." Citing the DOJs agreement to back off enforcement of federal pot laws, the court let this federal conflict slide.

Good law? Probably not. But in late August the U.S. Deputy Attorney General issued the opinion in memorandum to all federal attorneys. So maybe Vialpando's case will be an example nationwide.

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