Vialpando v. Ben's Auto. Servs. & Redwood Fire & Cas.

• Decision Date: 25 July 2014
• Docket Number: No. 32,920.,32,920.
• Citation: 331 P.3d 975
• Court: Court of Appeals of New Mexico
• Parties: Gregory VIALPANDO, Worker–Appellee, v. BEN'S AUTOMOTIVE SERVICES and Redwood Fire & Casualty, Employer/Insurer–Appellants.

331 P.3d 975

Gregory VIALPANDO, Worker–Appellee,

v.BEN'S AUTOMOTIVE SERVICES and Redwood Fire & Casualty, Employer/Insurer–Appellants.

No. 32,920.

Court of Appeals of New Mexico.

May 19, 2014.

Certiorari Denied, July 25, 2014, No. 34,766.

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

French & Associates, P.C., Lisa T. Mack, Albuquerque, NM, for Appellants.

OPINION

WECHSLER, Judge.

{1} We consider in this appeal whether, under the Workers' Compensation Act (the Act), NMSA 1978, §§ 52–1–1 to –70 (1929, as amended through 2013), an employer and insurer must reimburse an injured worker 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 (WCJ) found that Worker Gregory Vialpando was qualified to participate in the State of New Mexico Department of Health Medical Cannabis Program authorized by the Compassionate Use Act and that such treatment would be reasonable and necessary medical care. The WCJ ordered Worker to pay for medical marijuana through the program and Employer and Insurer Ben's Automotive Services and Redwood Fire & Casualty (collectively, Employer) to reimburse Worker. Employer appeals, arguing that (1) the WCJ erred because his order is illegal and unenforceable under federal law and also thereby contrary to public policy, and (2) the Act and regulations promulgated pursuant thereto do not recognize reimbursement for medical marijuana. Because we agree with the WCJ that the Act authorizes reimbursement for medical marijuana, we affirm.

BACKGROUND

{2} In the course of, and arising out of, his employment with Employer, Worker sustained a low back injury on June 9, 2000 that resulted in his undergoing numerous surgical procedures. In a stipulated compensation order entered August 22, 2008, the WCJ determined that Worker had reached maximum medical improvement for impairments for physical and psychological conditions and sleep apnea. Worker had a combined whole body impairment rating of 43 percent to 46 percent, and the parties agreed that he had a 99 percent permanent partial disability. One doctor described Worker's pain as “high intensity multiple-site chronic muscle, joint, and nerve pain directly resulting from back injury, followed by failed spinal surgery and attendant myalgia/myositis from resulting compensatory structural imbalances.” He considered Worker to be suffering “from some of the most extremely high intensity, frequency, and duration of pain, out of all of the thousands of patients I've treated within my 7 years practicing medicine.” At that time, Worker was taking “multiple narcotic based pain relievers [and] multiple anti-depressant medications.”

{3} On April 8, 2013, Worker filed an application for approval by the WCJ of medical treatment for medical marijuana (application for approval). Worker had been certified for the program by his health care provider and another medical doctor based on severe chronic pain that was debilitating.

{4} After a hearing, and denial of reconsideration, the WCJ found that Worker was “entitled to ongoing and reasonable medical care” with Worker's authorized health care provider and referrals of the health care provider, that Worker was qualified to participate in the medical cannabis program authorized by the Compassionate Use Act, and that participation in the program constituted reasonable and necessary medical care. The WCJ ordered Worker to pay for the authorized medical marijuana to be reimbursed by Employer. Employer appealed.

AUTHORITY FOR MEDICAL MARIJUANA REIMBURSEMENT

{5} We initially address Employer's argument that the Act and attendant regulations do not authorize the reimbursement of medical marijuana. Because the argument raises a question of interpretation of the Act based on the facts of this case, we review the WCJ's order de novo. DeWitt v. Rent–A–Center, Inc., 2009–NMSC–032, ¶ 14, 146 N.M. 453, 212 P.3d 341. We apply the plain meaning of the words of a statute when the meaning of the statutory language is “truly clear.” State ex rel. Helman v. Gallegos, 1994–NMSC–023, ¶ 22, 117 N.M. 346, 871 P.2d 1352. When there is any doubt as to the meaning of the words of the statute—that is, when the meaning of the statute is at all vague, uncertain, ambiguous, or otherwise doubtful—it is “part of the essence of judicial responsibility to search for and effectuate the legislative intent ... underlying the statute.” Id. ¶¶ 22–23.

{6} Under the Act, an employer is required to provide an injured worker “reasonable and necessary health care services from a health care provider.” Section 52–1–49(A). “Health care provider” is defined in the Act with a listing of various types of providers that includes hospitals, doctors, nurses, and therapists. NMSA 1978, § 52–4–1 (2007). In 2007, the list was amended to add licensed pharmacists and athletic trainers. The list does not include a dispenser of medical marijuana under the Compassionate Use Act. Section 52–4–1(H), (O). Section 52–4–1(P) does include as a health care provider “any person or facility that provides health-related services in the health care industry, as approved by the director” of the Workers' Compensation Administration (WCA), but it is undisputed that the director has not approved a dispenser of medical marijuana as a health care provider under this provision.

{7} The director of the WCA has adopted regulations pursuant to NMSA 1978, Section 52–4–5 (1993) and NMSA 1978, Section 52–5–4 (2003). The regulations applicable when Worker filed his application for approval incorporated both statutory provisions and defined “health care provider” as “any person, entity, or facility authorized to furnish health care to an injured or disabled worker pursuant to NMSA 1978, Section 52–4–1, including any provider designated pursuant to NMSA 1978, Section 52–1–49.” 11.4.7.7(W) NMAC (12/31/2011). The regulations further defined “services” as “health care services, ... procedures, drugs, products or items provided to a worker by an HCP [health care provider], pharmacy, supplier, caregiver, or freestanding ambulatory surgical center which are reasonable and necessary for the evaluation and treatment of a worker with an injury or occupational disease covered under [the Act] or the New Mexico Occupational Disease Disablement Law.” 11.4.7.7(SS) NMAC (12/31/2011).

{8} The regulations address the situation before us in which a health care provider recommends that a worker obtain a product that is reasonable and necessary for the worker's treatment but which, because of its nature, may not be available from another health care provider. In this case, the product is medical marijuana that is subject to the Compassionate Use Act.

{9} The WCJ found that Worker's “[p]articipation in a course of cannabis in the New Mexico [M]edical Cannabis Program would constitute reasonable and necessary medical care.” Dr. Belyn Schwartz, Worker's health care provider, recommended the services and provided the medical certification form necessary under rules adopted pursuant to the Compassionate Use Act for Worker to participate in the program. See§ 26–2B–7(A) (requiring the New Mexico Department of Health to adopt rules to implement the Compassionate Use Act). Dr. David Peters also provided a certification form.

{10} Section 52–1–49(A) requires an employer to provide a worker “reasonable and necessary health care services from a health care provider.” Employer argues that the services ordered by the WCJ do not fall within Section 52–1–49 because the services are provided by the program, which is not recognized by the director as a health care provider. However, the regulations do not support Employer's argument. By defining “services” as including a product from a supplier that is reasonable and necessary for a worker's treatment, the regulations do not contemplate that every aspect of a worker's reasonable and necessary treatment be directly received from a health care provider. Such a requirement would be unworkable. A worker's treatment may well require services that are not available from a health care provider. The most obvious of such services may be medical supplies or equipment. As contemplated by the regulations, providers other than a health care provider such as a pharmacy (as distinguished from a licensed pharmacist), supplier, or caregiver may provide such services. 11.4.7.7(U) NMAC (12/31/2011). The only prerequisite is that the service be “reasonable and necessary” for the worker's treatment. Id. When understood in conjunction with the regulations, Section 52–1–49 requires only that a health care provider have the responsibility for the provision of the reasonable and necessary services, not that each and every service must be provided by a health care provider.

{11} Employer also contends that we must view the service in this case as that of a prescription drug rather than as another type of service. A “prescription drug” is defined in the regulations as “any drug, generic or brand name, which requires a written order from an authorized HCP for dispensing by a licensed pharmacist or authorized HCP.” 11.4.7.7(OO) NMAC (12/31/2011). Yet, by definition, medical marijuana is not a prescription drug. Although it is a controlled substance, it is not dispensed by a licensed pharmacist or a health care provider upon a written order of a health care provider. A doctor may not order medical marijuana but may certify a patient to enroll in the medical cannabis program. Section 26–2B–3 (14). The program is not a licensed pharmacist or a health care provider. To Employer, the fact that the program is not a licensed pharmacist or a health care provider is the reason that the WCJ's order does not comply with the Act or the regulations. But this argument rests on the basis that the definition of a prescription drug is the only manner by which the WCJ could order Employer's reimbursement of...