Lewis v. Am. Gen. Media

• Decision Date: 26 June 2015
• Docket Number: 33,236.
• Citation: 355 P.3d 850
• Parties: Sandra LEWIS, Worker–Appellee, v. AMERICAN GENERAL MEDIA and Gallagher Bassett, Employer/Insurer–Appellant.
• Court: Court of Appeals of New Mexico

355 P.3d 850

Sandra LEWIS, Worker–Appellee

v.AMERICAN GENERAL MEDIA and Gallagher Bassett, Employer/Insurer–Appellant.

33,236.

Court of Appeals of New Mexico.

June 26, 2015.

Peter D. White, Santa Fe, NM, for Appellee.

Paul L. Civerolo, L.L.C., Paul L. Civerolo, Albuquerque, NM, for Appellant.

OPINION

WECHSLER, Judge.

{1} We are again called upon to address the application of the Workers' Compensation Act, NMSA 1978, §§ 52–1–1 to –70 (1929, as amended through 2013), to a worker certified to receive treatment with medical marijuana under the Lynn and Erin Compassionate Use Act (Compassionate Use Act), NMSA 1978, §§ 26–2B–1 to –7 (2007). In Vialpando v. Ben's Automotive Services, we held that the Workers' Compensation Act authorizes reimbursement for medical marijuana and declined to hold that federal law required a different result. 2014–NMCA–084, ¶¶ 1, 16, 331 P.3d 975, cert. denied, 331 P.3d 924 (2014). In Maez v. Riley Industrial, we considered the sufficiency of the evidence that supported reimbursement for medical marijuana for the worker in that case. 2015–NMCA–049, 347 P.3d 732.

{2} In this case, Gallagher Bassett and its insurer American General Media (collectively, Employer) challenge the sufficiency of the evidence supporting the conclusions of the Workers' Compensation Judge (WCJ) that the use of medical marijuana by Worker Sandra Lewis constituted reasonable and necessary medical care that required reimbursement. Specifically, Employer argues that the evidence offered by Worker's authorized health care provider was insufficient and that the WCJ erred by relying on testimony from an unauthorized health care provider who had provided a certification for Worker's use of medical marijuana under the Compassionate Use Act. Employer further argues that the conflict between New Mexico and federal law concerning the use of medical marijuana precludes the validity of the amended compensation order in this case. We hold that the medical certification forms and notes of Worker's authorized health care provider were substantial evidence to support the WCJ's conclusion that Worker's use of medical marijuana constitutes reasonable and necessary medical care and that, as discussed in Vialpando, the conflict between New Mexico and federal law does not support failing to give recognition to the amended compensation order. We therefore affirm.

BACKGROUND

{3} Worker suffered a compensable, work-related injury to her lower back in December 1998. She underwent several surgical procedures and currently suffers from post-laminectomy syndrome in the lumbar region. She suffers chronic pain. Since her injury, Worker has taken numerous drugs as part of her pain management, including Oxycontin, oxycodone, Soma, Norflex, gabapentin, Lyrica, Percocet, fentanyl, and Zantac.

{4} The issues concerning Worker's treatment began on April 16, 2012, when Employer filed an application requesting an independent medical examination (IME) in order to determine the scope of reasonable and necessary treatment for Worker's condition. In its application, Employer stated that Worker had been using medical marijuana and taking prescribed pain medication, which was inconsistent with Worker's belief that medical marijuana “is now the most effective medication from all of her different treatment and she is concerned by potential side effects.” The WCJ appointed Dr. Carl Adams, a psychologist, “to address Worker's ongoing pain management and use of pain medications.” Dr. Adams' recommendations, issued September 17, 2012, supported Worker's request to use medical marijuana to control her pain as reasonable and appropriate.

{5} Worker was originally certified to participate in the New Mexico Department of Health Medical Cannabis Program (the program) on March 22, 2010. On July 31, 2012, Dr. Carlos Esparza, Worker's authorized health care provider, provided the written certification under the Compassionate Use Act for Worker to re-enroll in the program. As required by the Compassionate Use Act, Dr. Esparza certified that Worker had “debilitating” medical conditions (painful peripheral neuropathy and severe chronic pain) and that Worker had “current unrelieved symptoms that have failed other medical therapies.” Dr. Esparza stated that the “benefits of medical marijuana outweigh the risk of hyper doses of narcotic medications.”

{6} On May 30, 2013, Dr. Stephen I. Rosenberg, after a medical consultation as a second doctor required for certification of Worker's re-enrollment, also signed a certification form for Worker's re-enrollment in the program, listing Worker's condition as severe chronic pain and making essentially the same certifications as Dr. Esparza. On July 31, 2013, Joel Gelinas, a physician's assistant in Dr. Esparza's office, also signed a certification form for Worker's re-enrollment in the program. He listed Worker's condition as severe chronic pain and certified that Worker's condition was debilitating and that “standard treatments have failed to bring adequate relief.”

{7} After trial, conducted on August 8, 2013, the WCJ found that Worker's authorized health care provider was Dr. Esparza and physician's assistant Joel Gelinas and that “the office of Dr. Esparza” had recommended Worker “as a candidate for medical marijuana under the Compassionate Use Act.” The WCJ concluded that Worker's use of medical marijuana under the program constituted reasonable and necessary medical care and required Employer to reimburse Worker for the receipts she submitted for her certified purchases. Employer filed this appeal.

REASONABLE AND NECESSARY MEDICAL CARE

{8} As its first main argument, Employer challenges the sufficiency of the evidence supporting the WCJ's conclusion that Worker's use of medical marijuana constituted reasonable and necessary medical care. Employer asserts this challenge in two ways, arguing that (1) “[t]he record does not support [the WCJ's] finding that [W]orker was recommended as a candidate for medical marijuana under the [C]ompassionate [U]se [A]ct through the office of Dr. Esparza” and (2) the WCJ “went outside” the Workers' Compensation Act and interpreting case law “to rely on testimony by an unauthorized provider” to make its finding of reasonable and necessary care.

Testimony of an Unauthorized Provider

{9} We first address Employer's argument that the WCJ improperly relied on the testimony of an unauthorized health care provider in determining that Worker's use of medical marijuana constituted reasonable and necessary medical care. In this regard, Employer contends that because Worker needed the certification of two health care professionals to be able to use medical marijuana under the Compassionate Use Act, the WCJ necessarily relied on the certification of Dr. Rosenberg in the WCJ's determination of the necessity of medical marijuana care. Thus, according to Employer, the WCJ improperly considered the certification of Dr. Rosenberg who was not qualified to present testimony under the Workers' Compensation Act because he was neither Worker's authorized health care provider nor a health care provider authorized to perform an IME. See § 52–1–51(C) (“Only a health care provider who has treated the worker ... or the health care provider providing the independent medical examination ... may offer testimony at any workers' compensation hearing concerning the particular injury in question.”).

{10} Employer's argument requires us to interpret the Workers' Compensation Act in connection with the Compassionate Use Act based on the facts of this case. We thus afford it de novo review. Vialpando, 2014–NMCA–084, ¶ 5, 331 P.3d 975.

{11} Employer's argument fatally interconnects the Workers' Compensation Act and the Compassionate Use Act. In order for a worker to qualify for medical care after a compensable injury under the Workers' Compensation Act, the care must be “reasonable and necessary” care from a health care provider. Section 52–1–49(A). Typically, in the event of a dispute between a worker and an employer pertaining to the reasonableness or necessity of medical care, a worker will establish that care was reasonable and necessary through evidence provided by a health care provider. See DiMatteo v. Doña Ana Cnty., 1985–NMCA–099, ¶ 26, 104 N.M. 599, 725 P.2d 575 (stating under previous version of Workers' Compensation Act that the worker had the burden of proving that his medical expenses were reasonably necessary). The Workers' Compensation Act restricts testimony in this regard to either a treating health care provider or an independent medical examiner. Section 52–1–51(C).

{12} In order to qualify for medical marijuana under the Compassionate Use Act, “a person licensed in New Mexico to prescribe and administer” controlled substances must certify to the opinion that “the patient has a debilitating medical condition” as defined in the Compassionate Use Act and “the potential health benefits of the medical use of cannabis would likely outweigh the health risks for the patient.” Section 26–2B–3(E), (H). Regulations promulgated by the New Mexico Department of Health require two written certifications when the debilitating medical condition is, as for Worker, severe chronic pain: one from a primary health care provider and one from a “specialist with expertise in pain management or ... expertise in the disease process that is causing the pain”). 7.34.3.8(B)(1)(b) NMAC (12/30/2010)¹ .

{13} However, no statutory or regulatory provision connects these requirements under the two separate statutory schemes. Practically, a worker first must be enrolled in the medical marijuana program under the Compassionate Use Act before any issue can arise under the Workers' Compensation Act as to whether medical marijuana use is reasonable and necessary care. But, otherwise, the two determinations are not dependent on each other; they are made separately, at different times, and by different administrative authorities. No express provision of the Workers'...