Quigley v. Vill. of E. Aurora

• Decision Date: 25 February 2021
• Docket Number: 530353
• Parties: In the Matter of the Claim of Daniel QUIGLEY, Respondent, v. VILLAGE OF EAST AURORA et al., Appellants. Workers’ Compensation Board, Respondent.
• Court: New York Supreme Court — Appellate Division

193 A.D.3d 207

142 N.Y.S.3d 636

In the Matter of the Claim of Daniel QUIGLEY, Respondent,

v.VILLAGE OF EAST AURORA et al., Appellants.

Workers’ Compensation Board, Respondent.

530353

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: January 12, 2021

Decided and Entered: February 25, 2021

Hamberger & Weiss LLP, Buffalo (Vivian A. Washington of counsel), for appellants.

Lewis & Lewis, PC, Jamestown (Michael Panebianco of counsel), for Daniel Quigley, respondent.

Letitia James, Attorney General, New York City (Nina M. Sas of counsel), for Workers’ Compensation Board, respondent.

Before: Garry, P.J., Egan Jr., Lynch, Aarons and Pritzker, JJ.

OPINION AND ORDER

Egan Jr., J. Appeal from a decision of the Workers’ Compensation Board, filed May 20, 2019, which, among other things, granted claimant's request for a variance.

Claimant, a police officer, has two established workers’ compensation claims – one involving a concussion and injuries to his right wrist and elbow (later amended to include his right shoulder) stemming from a February 2004 incident where he slipped and fell on black ice while at work, and the other involving a 1998 work-related injury to his low back. Following years of treatment, which included physical therapy, surgeries and various prescription pain medications, and a subsequent diagnosis of chronic regional pain syndrome of the right upper extremity, a Workers’ Compensation Law Judge classified claimant as permanently partially disabled in 2009 and apportioned liability for indemnity benefits and medications between the two claims. Claimant continued receiving treatment with varying degrees of success, and his use of prescription pain medications continued to increase.

In October 2016, claimant, who for years had been treated with opiate pain medications,¹ began treating with pain management specialist Cheryl Hart. Hart continued claimant on his regimen of, among other medications, Oxycontin

and Oxycodone to treat his pain; however, in May 2018, she certified claimant for use of medical marihuana pursuant to Public Health Law article 33, title V-a, also referred to as New York's Compassionate Care Act. In September 2018, Hart filed an MG–2 variance form requesting authorization to use medical marihuana to treat claimant's chronic pain resulting from his work-related injuries. The employer and its workers’ compensation carrier denied the request, prompting claimant to seek review from the Workers’ Compensation Board. The Board initially upheld the denial but, after claimant requested further action, the Board canceled its decision and continued the case for a hearing. Following a hearing, a Worker's Compensation Law Judge approved the variance request for medical marihuana treatment as apportioned, and, as relevant here, instructed the carrier to pay for such treatment. Upon administrative review, the Board, among other things, upheld the request for the variance. The employer and the carrier appeal.

The employer and the carrier contend that, inasmuch as marihuana is a Schedule I drug under the Controlled Substances Act (see 21 USC § 812 [c]) – which makes "the manufacture, distribution, or possession [there]of" a criminal offense, unless used in connection with a research study approved by the Food and Drug Administration ( Gonzales v. Raich, 545 U.S. 1, 14, 125 S.Ct. 2195, 162 L.Ed.2d 1 [2005] ) – the requirement that the carrier provide insurance coverage for claimant's medical marihuana expenses under the Compassionate Care Act conflicts with the Controlled Substances Act and, in light thereof, the Compassionate Care Act is preempted by federal law. We disagree. "The federal preemption doctrine has its roots in the Supremacy Clause of the United States Constitution, and federal preemption of state laws generally can occur in three ways: where Congress has expressly preempted state law, where Congress has legislated so comprehensively that federal law occupies an entire field of regulation and leaves no room for state law, or where federal law conflicts with state law" ( Matter of Atlas Van Lines, Inc. v. Tax Appeals Trib. of the State of N.Y., 123 A.D.3d 168, 174, 995 N.Y.S.2d 629 [2014] [internal quotation marks, ellipsis, brackets and citations omitted], lv denied 24 N.Y.3d 915, 2015 WL 649282 [2015] ; see Sutton 58 Assoc. LLC v. Pilevsky, ––– N.Y.3d ––––, ––––, ––– N.Y.S.3d ––––, ––– N.E.3d ––––, 2020 N.Y. Slip Op. 06939, *4 [2020] ; Matter of Schwenger v. NYU Sch. of Medicine, 126 A.D.3d 1056, 1057–1058, 3 N.Y.S.3d 465 [2015], lv dismissed 26 N.Y.3d 962, 17 N.Y.S.3d 79, 38 N.E.3d 825 [2015] ). At issue here is conflict preemption, "which occurs when compliance with both federal and state law is a physical impossibility, or where the state law at issue ... stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress" ( Matter of Atlas Van Lines, Inc. v. Tax Appeals Trib. of the State of N.Y., 123 A.D.3d at 174, 995 N.Y.S.2d 629 [internal quotation marks and citation omitted]; see Balbuena v. IDR Realty LLC, 6 N.Y.3d 338, 356, 812 N.Y.S.2d 416, 845 N.E.2d 1246 [2006] ).

Although there is no dispute that marihuana is a Schedule I drug such that it is a criminal offense under the federal Controlled Substances Act to manufacture, distribute or possess it (see Gonzales v. Raich, 545 U.S. at 14, 125 S.Ct. 2195 ), we note that this Act does provide an exception for certain other controlled substances where the substance "was obtained directly, or pursuant to a valid prescription or order, from a practitioner, while acting in the course of his [or her] professional practice" ( 21 USC § 844 [a]; see 21 USC 841 [a][1]). Importantly, neither the Compassionate Care Act nor Workers’ Compensation Law § 13(a) requires a workers’ compensation carrier to manufacture, distribute or possess marihuana. Rather, pursuant to the Compassionate Care Act, the carrier is merely required to reimburse a claimant for the monetary costs associated with the medical marihuana that he or she obtains from his or her medical practitioner, an activity that is not expressly prohibited under the Controlled Substances Act. Moreover, requiring the carrier to reimburse claimant for said expenses does not serve to subvert, in any way, the principal purposes of the Controlled Substances Act in combating drug abuse and controlling "the legitimate and illegitimate traffic in controlled substances" ( Gonzales v. Raich, 545 U.S. at 12, 125 S.Ct. 2195 [footnote omitted]), particularly where, as here, claimant was validly prescribed and authorized to use medical marihuana by his pain management specialist to both treat his chronic pain and reduce his reliance on opiates.

Nor are we persuaded by the employer and the carrier's claim that compelling the carrier to "fund" claimant's use of medical marihuana under the Compassionate Care Act exposes it to civil and criminal liability under the auspices of "conspiracy or aiding or abetting." Importantly, "[t]he existence of a hypothetical or potential conflict is insufficient to warrant the preemption of [a] state statute" ( Rice v. Norman Williams Co., 458 U.S. 654, 659, 102 S.Ct. 3294, 73 L.Ed.2d 1042 [1982] ; accord Long Is. Light. Co. v. Mack, 137 A.D.2d 285, 296, 529 N.Y.S.2d 502 [1988], appeal dismissed 74 N.Y.2d 804, 546 N.Y.S.2d 561, 545 N.E.2d 875 [1989] ; see Hager v. M & K Construction, 462 N.J. Super. 146, 164, 225 A.3d 137, 147 [2020] ). Further, even assuming, without deciding, that claimant's procurement and possession of medical marihuana under the Compassionate Care Act is illegal under the Controlled Substances Act, any such criminal transaction in this regard is necessarily completed prior to any request being made for reimbursement from the carrier; thus, as "one cannot aid and abet a completed crime," under such circumstances, the carrier cannot be said to be aiding and abetting a crime and/or engaging in a conspiracy to commit same ( Hager v. M & K Construction, 462 N.J. Super. at 166, 225 A.3d at 148 [internal quotation marks and citations omitted]). Accordingly, as the carrier can comply with the state's statutory scheme without running afoul of federal law, we do not find any conflict between the Controlled Substances Act and either the Compassionate Care Act or Workers’ Compensation Law § 13(a) with regard to the carrier's obligation to reimburse claimant for his medical marihuana expenses (see Hager v. M & K Construction, 462 N.J. Super. at 164–165, 225 A.3d at 147–148 ).

Next, the employer and the carrier argue that they are statutorily exempt from liability for claimant's medical marihuana expenses under Public Health Law § 3368(2). When dealing with matters of statutory interpretation, "[the] primary consideration is to discern and give effect to the Legislature's intention" ( Matter of Albany Law School v. New York State Off. of Mental Retardation & Dev. Disabilities, 19 N.Y.3d 106, 120, 945 N.Y.S.2d 613, 968 N.E.2d 967 [2012] ). In that regard, "[t]he statutory text is the clearest indicator of legislative intent and courts should construe unambiguous language to give effect to its plain meaning" ( Matter of DaimlerChrysler Corp. v. Spitzer, 7 N.Y.3d 653, 660, 827 N.Y.S.2d 88, 860 N.E.2d 705 [2006] ; see Matter of Minichiello v. New York City Dept. of Homeless Servs., 188 A.D.3d 1401, 1402, 136 N.Y.S.3d 182 [2020] ). "[W]here a law expressly describes a particular act, thing or person to which it shall apply, an irrefutable inference must be drawn that what is omitted or not included was intended to be omitted or excluded" (McKinney's Cons Laws of NY, Book 1, Statutes § 240; see Kimmel v. State of New York, 29 N.Y.3d 386, 394, 57 N.Y.S.3d 678, 80 N.E.3d 370 [2017] ; Walker v. Town of Hempstead, 84 N.Y.2d 360, 367, 618 N.Y.S.2d 758, 643 N.E.2d 77 [1994] ).

Preliminarily, we note that, pursuant to Workers’ Compensation Law § 13(a), the employer is liable "for the payment of the expenses of...