In many parts of the country, medical marijuana remains somewhat controversial. Yet New York State acknowledges the benefits of medical marijuana for chronic pain and has since July 2014, when the Compassionate Care Act was passed into law.
Following the passage of that Act, courts began ruling on medical marijuana cases.
In the 2018 case Matter of Kellner Bros., Inc, the courts authorized medical marijuana as an appropriate alternative to opioid use.
In the 2021 case Matter of Quigley v Village of E. Aurora, the New York Appellate Division upheld a State Workers’ Compensation Board ruling to allow reimbursement for medical marijuana.
Of course, as you can imagine, you can’t just run out, get medical marijuana, and claim that you’re doing it to treat your chronic pain. Your medical provider must pre-authorize your treatment, and you must be certified through the state. In Quigley, Courts upheld the ruling partly because Quigley’s treating physician had tried so many other methods to control the pain and because the physician was attempting to help Quigley stay off opioids.
The doctor files a prior authorization request (PAR) through the Workers’ Compensation Board Medical Portal. The doctor specifies the duration of the treatment, the anticipated functional gains, and an explanation of why they believe other treatments won’t be successful, which usually means outlining all the other treatments they have tried.
In addition, the request must be in line with Public Health Law Section 3360, which outlines the serious conditions that are eligible for medical marijuana treatment, only some of which are likely to come up in a workers’ compensation case, including:
- Damage to the nervous tissue of the spinal cord with objective neurological indications of intractable spasticity
- Pain that degrades health and functional capability where the use of medical marijuana is an alternative to opioid use
- Any severe debilitating pain that the practitioner determines degrades health and functional capability
- Severe or chronic pain resulting in substantial limitation of function
- Severe nausea
The method prescribed must match an approved route of administration, including:
- Metered liquid or oil preparations
- Capsules, chewables, tablets, or lozenges
- Metered ground plant preparations
- Topical forms and transdermal patches
The Compassionate Care Act expressly prevents smoking as a form of MM. It also prohibits the use of edibles.
Once the Board grants the request, the insurer must cover the medical marijuana as long as the purchase amount and frequency are in line with the prescribing physician’s recommendations. The insurer may either reimburse you or pay the dispensary directly.
Even though the process is settled, it is possible that your employer may object to the use of medical marijuana in your specific case. If that happens, you may need to work with a workers’ compensation attorney to protect your rights.
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