Maez v. Riley Indus.

• Citation: 347 P.3d 732
• Decision Date: 13 January 2015
• Docket Number: 33,154.
• Parties: Miguel MAEZ, Worker–Appellant, v. RILEY INDUSTRIAL and Chartis, Employer/Insurer–Appellees.
• Court: Court of Appeals of New Mexico

347 P.3d 732

Miguel MAEZ, Worker–Appellant

v.RILEY INDUSTRIAL and Chartis, Employer/Insurer–Appellees.

33,154.

Court of Appeals of New Mexico.

Jan. 13, 2015.

Titus & Murphy Law Firm, Victor A. Titus, Farmington, NM, for Appellant.

Hoffman Kelley Lopez LLP, Lori A. Martinez, Albuquerque, NM, for Appellees.

OPINION

WECHSLER, Judge.

{1} In Vialpando v. Ben's Automotive Services, 2014–NMCA–084, ¶ 1, 331 P.3d 975, cert. denied, 331 P.3d 924 (2014), this Court held that the Workers' Compensation Act, NMSA 1978, §§ 52–1–1 to –70 (1929, as amended through 2013), authorizes reimbursement for medical marijuana used pursuant to the Lynn and Erin Compassionate Use Act (Compassionate Use Act), NMSA 1978, §§ 26–2B–1 to –7 (2007). The workers' compensation judge in Vialpando had found that the worker was qualified to participate in the Department of Health Medical Cannabis Program authorized by the Compassionate Use Act and that such treatment would be reasonable and necessary medical care. 2014–NMCA–084, ¶ 1, 331 P.3d 975.

{2} In this appeal, the workers' compensation judge (WCJ) found that the worker's authorized treating health care provider (HCP) did not prescribe medical marijuana and concluded that medical marijuana was not reasonable and necessary medical care. Worker Miguel Maez argues that the WCJ erred in this conclusion because Worker had proven that medical marijuana was reasonable and necessary medical care, particularly based on the evidence that the HCP's treatment plan for Worker included medical marijuana, and the HCP and another doctor had certified Worker's use of medical marijuana as required by the Compassionate Use Act.

{3} Because there is not substantial evidence supporting the WCJ's conclusion that medical marijuana was not reasonable and necessary medical care for Worker, we reverse the WCJ's compensation order.

I. BACKGROUND

{4} Worker suffered two compensable injuries to his lumbar spine in the course and scope of his employment with Riley Industrial on February 14, 2011 and March 4, 2011. Riley Industrial was insured by Chartis (both referred to as Employer herein). Worker was entitled to payment of temporary disability until the date of maximum medical improvement and permanent partial disability thereafter based on a seven percent whole body impairment for the balance of the 500–week benefit period. He was also entitled to ongoing reasonable and necessary medical care. His authorized HCP was Dr. Anthony Reeve.

{5} The WCJ found that “Dr. Reeve did not prescribe medical marijuana to Worker” and concluded that “[m]edical marijuana is not reasonable and necessary medical care from an authorized HCP” that would require payment by Employer. Worker appeals from the WCJ's compensation order to the extent that the WCJ did not award medical benefits for Worker's use of medical marijuana for pain management.

II. REASONABLE AND NECESSARY MEDICAL CARE

A. Issue on Appeal

{6} On appeal, Worker initially makes arguments concerning the interrelationship of the Workers' Compensation Act and the Compassionate Use Act that are similar to those we decided in Vialpando. In Vialpando, filed after Worker filed his brief-in-chief in this case, we determined that medical marijuana treatment approved under the Compassionate Use Act that the WCJ found to be reasonable and necessary medical care qualifies for reimbursement under the Workers' Compensation Act. Vialpando, 2014–NMCA–084, ¶ 1, 331 P.3d 975.

{7} The WCJ in this case did not find Worker's medical marijuana treatment to be reasonable and necessary medical care. To the contrary, the WCJ specifically concluded that “[m]edical marijuana is not reasonable and necessary medical care from an authorized HCP.” Worker argues that the WCJ erred in reaching this conclusion because the evidence indicated that medical marijuana is reasonable care for Worker's chronic low back pain and because the WCJ incorrectly found that medical marijuana was not “prescribed” by Dr. Reeve.

{8} The Workers' Compensation Act requires an employer to provide a worker “reasonable and necessary health care services from a health care provider.” Section 52–1–49(A). Conversely, an employer need not provide a worker with health care that is not reasonable and necessary. See Vargas v. City of Albuquerque, 1993–NMCA–136, ¶ 8, 116 N.M. 664, 866 P.2d 392 (“[T]he employer's obligation is limited by Section 52–1–49(A) to paying for ‘reasonable and necessary’ health care services”). Thus, the pivotal question in Worker's appeal is whether the evidence supports the WCJ's conclusion that medical marijuana was not reasonable and necessary medical care.

B. Standard of Review

{9} We address this question under a whole record standard of review by determining whether substantial evidence in the record as a whole supports the WCJ's conclusion. Dewitt v. Rent–A–Center, Inc., 2009–NMSC–032, ¶ 12, 146 N.M. 453, 212 P.3d 341. Substantial evidence is credible evidence in light of the whole record “that is sufficient for a reasonable mind to accept as adequate to support the conclusion[.]” Id. (internal quotation marks and citation omitted). We give deference to the WCJ as factfinder and view the evidence in the light most favorable to the decision without disregarding contravening evidence. Id.

{10} While we generally may not weigh the evidence, even under whole record review, such review “allows the reviewing court greater latitude to determine whether a finding of fact was reasonable based on the evidence [.]” Herman v. Miners' Hosp., 1991–NMSC–021, ¶ 10, 111 N.M. 550, 807 P.2d 734. Moreover, our review has even greater latitude when reviewing an issue for which the evidence is documentary in nature. As in this case, when “all or substantially all of the evidence on a material issue is documentary or by deposition,” an appellate court may “examine and weigh it[.]” United Nuclear Corp. v. Gen. Atomic Co., 1979–NMSC–036, ¶ 62, 93 N.M. 105, 597 P.2d 290 (internal quotation marks and citation omitted). In review for substantial evidence of such a record from a district court proceeding, the appellate court must then give “some weight to the findings of the trial judge on such issue” and not disturb such findings based on conflicting evidence “unless such findings are manifestly wrong or clearly opposed to the evidence.” Id. (internal quotation marks and citation omitted). In this case, in which we are applying whole record review, we must similarly give weight to the WCJ's findings and consider contravening evidence. Dewitt, 2009–NMSC–032, ¶ 12, 146 N.M. 453, 212 P.3d 341. Following United Nuclear, we will not disturb the WCJ's findings unless they are manifestly wrong or clearly opposed to the evidence. 1979–NMSC–036, 93 N.M. 105, 597 P.2d 290. ¶ 69.

{11} We apply a de novo standard to the WCJ's application of law to the facts. Vialpando, 2014–NMCA–084, ¶ 5, 331 P.3d 975.

C. Review of the Evidence

{12} Dr. Reeve provided the evidence concerning the issue of whether medical marijuana constituted reasonable and necessary medical care. He testified by deposition. He made detailed medical reports of each of Worker's visits, and the reports were included as exhibits to his deposition.

{13} Dr. Reeve began treating Worker on June 13, 2011. He testified that his diagnosis of Worker included chronic back pain and that he treated Worker with medication for pain management. Over the course of Worker's treatment, Dr. Reeve had injected Worker with Toradol

and had prescribed Soma, Ultram, Sprix, Percocet, Lortab (oxycodone ), and hydrocodone for Worker's pain. Dr. Reeve also referred Worker to another doctor for spinal injections. During one test required for pain management patients, Worker tested positive for marijuana. Dr. Reeve informed Worker that if Worker was going to take marijuana, he needed to have a license for Dr. Reeve to continue administering other narcotics, and further, even if Worker had a license, he would probably consider only additional nonnarcotic pain medication.

{14} On February 28, 2012, Dr. Reeve first saw Worker for a medical marijuana evaluation. In his medical report, Dr. Reeve states that Worker has had spinal injections

and chronic pain management and that Worker “has failed traditional pain management and is a candidate for the cannabis program.” At that time, Dr. Reeve was treating Worker with hydrocodone. His report concludes with the following:

IMPRESSION

1. Lumbar radiculopathy

.

2. Chronic low back pain.

3. Failed traditional management.

REHABILITATION MANAGEMENT AND SUGGESTIONS

I have reviewed the records and examined the patient. The history, radiographic and physical findings are consistent at this time. I will recommend authorization of medical marijuana as a trial. Authorization is good for one year and the patient will need to show symptomatic progress upon reauthorization.

TREATMENT PLAN

Authorization for medical marijuana for one year.

{15} Dr. Reeve re-authorized Worker for the medical marijuana program after an evaluation on April 3, 2013. Similarly, Dr. Reeve again stated in his report that Worker had “failed traditional pain management and is a candidate for the cannabis program.” He stated the same “IMPRESSION” and “REHABILITATION MANAGEMENT AND SUGGESTIONS” as he had on February 28, 2012. His “TREATMENT PLAN” stated “Reauthorization for medical marijuana for one year.”

{16} The Compassionate Use Act requires for enrollment that “a person licensed in New Mexico to prescribe and administer drugs that are subject to the Controlled Substances Act” provide a “written certification” that “the patient has a debilitating medical condition” and that the person certifying “believes that 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). Dr. Reeve signed the certification for Worker to 3 qualify for the Compassionate Use Act medical marijuana program. The original certification is not part of the record on appeal. Dr. Reeve...