Garcia v. Calzadilla Constr. Corp.

Decision Date26 July 2022
Docket NumberBRB 21-0063
CourtLongshore Complaints Court of Appeals


Appeal of the Decision and Order Denying Reimbursement for Requested Medical Treatment of Stephen R. Henley, Administrative Law Judge, United States Department of Labor.

Emilio F. Soler, San Juan, Puerto Rico, for Claimant.

Manuel Porro-Vizcarra, San Juan, Puerto Rico, for Employer/Carrier.

William M. Bush (Seema Nanda, Solicitor of Labor; Barry H Joyner, Associate Solicitor; Mark A. Reinhalter, Counsel for Longshore) Washington D.C., for the Director, Office of Workers' Compensation Programs, United States Department of Labor.

Before: BUZZARD, ROLFE and JONES, Administrative Appeals Judges.



Claimant appeals Administrative Law Judge (ALJ) Stephen R Henley's Decision and Order Denying Reimbursement for Requested Medical Treatment (2020-LHC-00796)[1]rendered on a claim filed pursuant to the Longshore and Harbor Workers' Compensation Act, as amended, 33 U.S.C. §901 et seq., as extended by the Defense Base Act, 42 U.S.C. §1651 et seq. (Longshore Act). We must affirm the administrative law judge's findings of fact and conclusions of law if they are rational, supported by substantial evidence, and in accordance with applicable law. 33 U.S.C. §921(b)(3); O'Keeffe v. Smith, Hinchman & Grylls Associates, Inc., 380 U.S. 359 (1965).

Claimant injured his back at work on May 16, 1994, resulting in permanent total disability. He filed a claim for his work-related injuries. On December 29, 1998, the district director ordered Employer to furnish Claimant medical care and treatment pursuant to Section 7 of the Longshore Act, 33 U.S.C. 33 U.S.C. §907; it has "generally complied." ALJ's Decision and Order dated September 15, 2020 (Decision and Order) at 1. On March 23, 2019, Dr. Michael Soler, a licensed physician in Puerto Rico, stated Claimant "has steadily responded well" for "over one year" to prescribed "edibles infused with a specific dosage of medical cannabis," which seemed to be "one of the only treatments that best works for the patient [] at night time due to its absorption and dose doubling effect." Decision and Order (D&O) at 2. Claimant sought, but Employer denied, reimbursement for "payment of medical cannabis-infused cookies and edibles" obtained as medical treatment, prompting him to request a hearing before the Office of Administrative Law Judges (OALJ).

Prior to any hearing, the ALJ directed the parties to show cause on "whether the Controlled Substance Act's [21 U.S.C. §801 et seq., hereinafter referred to as CSA] current placement of marijuana in Schedule I entails that marijuana can never be reasonable and necessary for purposes of Section 7 of the [Longshore Act], or otherwise renders an award of such medical benefits improper or unlawful." D&O at 2. Claimant and EmployerCarrier each responded, and the Director, Office of Workers' Compensation Programs (the Director), declined to respond.

In his decision dated September 15, 2020, the ALJ found because marijuana remains a controlled substance under federal law, it cannot constitute reasonable and necessary medical treatment under the federal Longshore Act. He therefore denied Claimant's request "for a finding that medical cannabis treatment is covered" under Section 7 of the Longshore Act.

On appeal, Claimant challenges the ALJ's denial of his request for reimbursement for the cost of medical marijuana. He asks the Benefits Review Board to remand the case to the ALJ for a formal hearing on the matter. Employer and the Director have each filed responses, urging affirmance of the ALJ's decision.

Claimant asserts the CSA and the Longshore Act "may be rendered compatible and not contradictory to adjudicate" his reimbursement claim, "as the medical marijuana items' reimbursement does not entail preemptively CSA criminal exposure." Claimant's Brief (Cl. Br.) at 7 (unpaginated). He states the CSA and Longshore Act may be compatible because Puerto Rico's laws, unlike those of the federal government, recognize that registered patients with a certified physician's prescription, like him, may buy "cannabis" products for personal use at approved dispensaries. See generally Puerto Rico Law 422017, Regulation 9038 (2017). He cites case law, from states with similar legalization provisions, which favors reimbursement of expenses for medical marijuana under state workers' compensation schemes despite the CSA Schedule I marijuana classification and the Supremacy Clause of the United States Constitution. He further contends "a harmonious interpretative approach" between Puerto Rico's law, the CSA, and the Longshore Act means the CSA's classification of marijuana is not preemptive of reimbursement, but instead may be considered as part of the "reasonableness" analysis required by Section 7 of the Longshore Act.

Employer contends the federal government's classification of marijuana in the CSA as a Schedule I substance preempts Puerto Rico's state law allowing for the prescription of medical marijuana. It maintains that as long as marijuana remains illegal under the CSA, marijuana-based treatments cannot be "reasonable and necessary" for any medical condition under the Longshore Act. Employer asserts state law is not persuasive legal authority because this case involves interpretations of federal, rather than state, statutes, and, regardless, there are also many contrary state workers' compensation decisions.

Because Congress has decided marijuana has "no currently accepted medical use," 21 U.S.C. §812(b)(1), the Director similarly avers it cannot be considered "reasonable and necessary" treatment for an injury covered by the Longshore Act. He maintains the CSA and the Longshore Act are both federal laws, and to the extent the CSA and the Puerto Rico Controlled Substance Act (PRCSA) conflict with one another, federal law prevails by virtue of the Supremacy Clause. Art. VI, cl. 2. He further contends the state cases have no persuasive value in this claim arising under federal law, and even if they did, they involve different core issues and are distinguishable.

Under Section 7 of the Longshore Act, an employer is liable for reasonable and necessary medical expenses related to a claimant's work injury. 33 U.S.C. §907(a); Ingalls Shipbuilding, Inc. v. Director, OWCP, [Baker], 991 F.2d 163, 27 BRBS 14(CRT) (5th Cir. 1993); Ballesteros v. Willamette Western Corp., 20 BRBS 184 (1988). A claimant must request authorization before receiving medical treatment to recover medical expenses. 33 U.S.C. §907(d); Pozos v. Army & Air Force Exchange Service, 31 BRBS 173 (1997). For a medical expense to be covered, it must be reasonable and necessary for treatment of the work-related injury. See 20 C.F.R. §702.402; Davison v. Bender Shipbuilding & Repair Co., Inc., 30 BRBS 45. A claimant can establish a prima facie case for compensable medical treatment where a qualified physician indicates treatment was necessary for a work-related condition. See Romeike v. Kaiser Shipyards, 22 BRBS 57 (1989). Section 702.401(a) provides medical treatment which is recognized as appropriate by the medical profession is covered. 20 C.F.R. §702.401(a); R.C. [Carter] v. Caleb Brett, LLC, 43 BRBS 75 (2009).

The CSA, 21 U.S.C. §801 et seq., "places all substances which were in some manner regulated under existing federal law into one of five schedules."[2] The CSA describes the different schedules based on three factors: 1) Potential for abuse; 2) Accepted medical use in the U.S.; and 3) Safety and potential for addiction. 21 U.S.C. §812(b). In this regard, the CSA generally creates a "closed regulatory system" making it illegal "to manufacture, distribute, dispense, or possess any controlled substance except [as] authorized by the CSA." Gonzales v. Raich, 545 U.S. 1, 12 (2005); see 21 U.S.C. §§841, 844. Marijuana is classified as a Schedule I controlled substance so, under federal law, it "has no currently accepted medical use in treatment in the United States." United States v. Oakland Cannabis Buyers' Coop., 532 U.S. 483, 491 (2001) (holding there is no medical need defense for the manufacture and distribution of Schedule 1 controlled substances) (quoting 21 U.S.C. §812(b)(1)(B)); see 21 U.S.C. §812(c).

Despite its federal classification, individual states, starting with California in 1996, see Proposition 215, Medical Marijuana Initiative (1996), began permitting the use of medical marijuana. As of May 18, 2021, "[a] total of 36 states, the District of Columbia, Guam, Puerto Rico and the U.S. Virgin Islands have approved comprehensive, publicly available medical marijuana/cannabis programs."[3] In 2015, Puerto Rico's governor signed an executive order to permit the use of medical marijuana. Executive Order 2015-10; Regulation 8766 (2016). In 2017, Puerto Rico classified "Cannabis" as a Schedule II drug, 24 L.P.R.A. §2623, under its PRCSA, 24 L.P.R.A. §2202. In reclassifying marijuana, Puerto Rico recognized, among other things, it "has a currently accepted medical use in the United States or a currently accepted medical use with severe restrictions." 24 L.P.R.A. §2202(b)(2)(B).

The question before the Board is whether the ALJ properly found marijuana is a controlled substance under federal law such that it cannot constitute "reasonable and necessary" medical treatment under Section 7 and is not compensable under the Longshore Act. Claimant's claim arises under a federal Act; thus, it was necessary for...

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