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

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2014-NMCA-084

Filing Date: May 19, 2014

Docket No. 32,920

GREGORY VIALPANDO,

Worker-Appellee,

v.

BEN’S AUTOMOTIVE SERVICES and

REDWOOD FIRE & CASUALTY,

Employer/Insurer-Appellants.

APPEAL FROM THE WORKERS’ COMPENSATION ADMINISTRATION

Terry Kramer, Workers’ Compensation Judge

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
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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
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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)
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(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 medical marijuana. It does not take into

account the definition of “services.” That definition is significantly broader than the

definition of prescription drug. It includes non-prescription drugs and other products and

further includes providers other than licensed pharmacists and health care providers. There

is no basis in the regulations to declare that the definition of prescription drug is the

exclusive manner to address the provision of medical marijuana to an injured worker.

{12} Moreover, if we were to apply the definition of prescription drug as a model for

medical marijuana, our analysis would lead to the same conclusion. Indeed, medical

marijuana is a controlled substance and is a drug. Instead of a written order from a health

care provider, it requires the functional equivalent of a prescription— certification to the
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program. Although it is not dispensed by a licensed pharmacist or health care provider, it

is dispensed by a licensed producer through a program authorized by the Department of

Health. The control that underlies the dispensing of a prescription drug in the regulations,

requiring either a licensed pharmacist or a recognized health care provider, is present

because of the Department of Health licensing provisions mandated by the Compassionate

Use Act. See § 26-2B-3(D) (requiring a “licensed producer” of medical marijuana to be

licensed by the Department of Health). We note that prior to 2007, a licensed pharmacist

was not listed as a health care provider, even though the regulation defining a prescription

drug was the same as it was for the purposes of this case and permitted a licensed pharmacist

to dispense a prescription drug. See 2007 N.M. Laws, ch. 328, § 3(O) (adding “a pharmacist

licensed pursuant to the provisions of Chapter 61, Article 11 NMSA 1978” to the listing of

health care providers in Section 52-4-1); 11.4.7.7(OO) NMAC (12/31/2011) (defining

“prescription drug” 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”).

{13} In this regard, we further observe the legislative intent of the Compassionate Use Act

“to allow the beneficial use of medical cannabis in a regulated system for alleviating

symptoms caused by debilitating medical conditions and their medical treatments.” Section

26-2B-2. The Legislature has provided in the Act that a worker receive through an employer

reasonable and necessary health care services, which the regulations define to include

“drugs, products or items provided to a worker” in various ways provided that they are

“reasonable and necessary for the evaluation and treatment of a worker.” 11.4.7.7(SS)

NMAC (12/31/2011); Section 52-1-49(A). When read together, we view the legislative

intent to be that a worker’s treatment under a program authorized by the Compassionate Use

Act that has been determined by a WCJ to be reasonable and necessary treatment is

embraced within the Act. See State v. Almanzar, 2014-NMSC-001, ¶ 15, 316 P.3d 183

(stating that the interpretation of a statute is informed by its function within a comprehensive

legislative scheme); State v. Rivera, 2004-NMSC-001, ¶ 13, 134 N.M. 768, 82 P.3d 939

(stating that wherever possible we must read legislative enactments as harmonious instead

of contradictory); 1A Norman J. Singer & J.D. Shambie Singer, Statutes and Statutory

Construction, § 31:6, at 696-705 (7th ed. 2009) (stating that the general rules of statutory

interpretation apply to regulations); see NMSA 1978, § 52-5-1 (1990) (“It is the intent of the

[L]egislature [that the Act] be interpreted to assure the quick and efficient delivery of

indemnity and medical benefits to injured and disabled workers at a reasonable cost to the

employers[.]”).

CONFLICT WITH FEDERAL LAW

{14} Employer argues that the order by the WCJ is illegal because Employer would be

required to violate federal law in reimbursing Worker for his medical marijuana expenses.

Additionally, Employer argues that the order of the WCJ is contrary to federal public policy

as expressed by the Controlled Substances Act (CSA), 21 U.S.C. §§ 801-904 (2012).

{15} Under the CSA, marijuana is classified as a Schedule I controlled substance and, as
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The eight identified areas of enforcement are:

(1) Preventing the distribution of marijuana to minors; 

(2) Preventing revenue from the sale of marijuana from going to

criminal enterprises, gangs, and cartels;

(3) Preventing the diversion of marijuana from states where it is legal

under state law in some form to other states;

(4) Preventing state-authorized marijuana activity from being used as

a cover or pretext for the trafficking of other illegal drugs or other illegal

activity;

(5) Preventing violence and the use of firearms in the cultivation and

distribution of marijuana;

(6) Preventing drugged driving and the exacerbation of other adverse

public health consequences associated with marijuana use;

(7) Preventing the growing of marijuana on public lands and the

attendant public safety and environmental dangers posed by marijuana

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such, it is generally illegal to use or possess it except as related to federally approved

research. 21 U.S.C. §§ 812, 822, 823(f). There is no exemption under federal law for

medical uses. See Gonzales v. Raich, 545 U.S. 1, 27-28 (2005). As follows from Gonzales,

the Supremacy Clause dictates that any conflict between the Compassionate Use Act and the

CSA would be resolved in favor of the CSA. See Gonzales, 545 U.S. at 29 (stating that state

law bows to federal law under the Supremacy Clause to the extent that there is conflict). But

this case is unlike Gonzales because Gonzales resolved a direct conflict between the CSA

and state law authorizing marijuana use and cultivation for medical purposes that this case

does not present. See Gonzales, 545 U.S. at 5. Employer does not attempt to challenge the

legality of the Compassionate Use Act. Instead, Employer asserts that, because marijuana

remains a controlled substance under federal law, the order to reimburse Worker for money

spent purchasing a course of medical marijuana “essentially requires” Employer to commit

a federal crime. However, Employer does not cite to any federal statute it would be forced

to violate, and we will not search for such a statute. See Headley v. Morgan Mgmt. Corp.,

2005-NMCA-045, ¶ 15, 137 N.M. 339, 110 P.3d 1076 (“We will not review unclear

arguments, or guess at what [a party’s] arguments might be.”).

{16} Employer also argues that the order should be reversed because it is contrary to

federal public policy as reflected in the CSA and Gonzales. Worker contends that federal

public policy supports medical marijuana because the Department of Justice has announced

a somewhat deferential enforcement policy. Although not dispositive, we note that the

Department of Justice has recently offered what we view as equivocal statements about state

laws allowing marijuana use for medical and even recreational purposes. On one hand, the

Department of Justice affirmed that marijuana remains illegal under the CSA and that federal

prosecutors will continue to aggressively enforce the statute. But, on the other hand, and in

the same documents, the Department of Justice identified eight areas of enforcement priority1
production on public lands;

(8) Preventing marijuana possession or use on federal property.

Memorandum from James M. Cole, Deputy Attorney General, to All United States

Attorneys, Guidance Regarding Marijuana Enforcement (August 29, 2013).

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and indicated that outside of those priorities it would generally defer to state and local

authorities. In addition, the Department of Justice stated that it informed the Governors of

Washington and Colorado, two states that voted to legalize possession of marijuana and

regulate its production and distribution, that it would defer its right to challenge those laws.

We also observe that New Mexico public policy is clear. Our State Legislature passed the

Lynn and Erin Compassionate Use Act “to allow the beneficial use of medical cannabis in

a regulated system for alleviating symptoms caused by debilitating medical conditions and

their medical treatments.” Section 26-2B-2. We decline to reverse the order on the basis of

federal law or public policy.

CONCLUSION

{17} For the foregoing reasons, we affirm the order of the WCJ.

{18} IT IS SO ORDERED.

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JAMES J. WECHSLER, Judge

WE CONCUR:

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CYNTHIA A. FRY, Judge

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MICHAEL E. VIGIL, Judge