Worker’s Compensation

No. 2017-0469

Sam Harkinson Previously employed as an Assistant County Attorney, and as an insurance adjuster, now as an associate at Hoefle, Phoenix, Gormley & Roberts

Sam Harkinson
Previously employed as an Assistant County Attorney, and as an insurance adjuster, now as an associate at Hoefle, Phoenix, Gormley & Roberts

March 7, 2019
Reversed in part, vacated in part, and remanded.

 

  • Whether a worker’s compensation insurance provider is required to provide reimbursement for therapeutic cannabis that is otherwise authorized pursuant to statute.

 

Mr. Andrew Panaggio (Petitioner) appealed a decision by the New Hampshire Compensation Board (Board) denying his requested reimbursement from CNA Insurance Company (Respondent) for therapeutic cannabis authorized under New Hampshire statute to treat his work-related injury.

As established by the record, the Petitioner was injured on the job and received a permanent impairment award in 1996 and received a lump-sum settlement in 1997. The Petitioner continued to have pain and was prescribed opiates, later being approved for therapeutic cannabis treatment pursuant to New Hampshire Statute. When the Petitioner attempted to submit for reimbursement from the Respondent for the cost of the therapeutic cannabis, the Respondent denied the submission, initially stating that the Petitioner had failed to show a reasonableness/necessity of the treatment. The Petitioner challenged the decision of the Respondent through a hearing at the New Hampshire Department of Labor. The hearings officer affirmed the decision of the Respondent finding that the Petitioner had failed to meet his burden by failing to show that medical marijuana is reasonable/necessary for treatment of his injury. Petitioner then appealed this decision to the Board.

On appeal, the Board concluded that the treatment was reasonable/necessary for the treatment of the Petitioner’s injury. However, the Board ultimately concluded that reimbursement was not authorized, relying on an argument put forward by the Respondent that reimbursement would cause the Respondent to become criminally liable under Federal Statute. The Board also concluded that provisions of NH Statute that applied to health insurance providers also applied to the Respondent, and that the Respondent could therefore not be ordered to reimburse for therapeutic cannabis treatment.

On appeal, the Court concluded that the Board erred when it found that the Respondent was prohibited from reimbursing the Petitioner for the cost associated with his therapeutic cannabis treatment. The Court found that the Board had failed to adequately address the issue of whether the Respondent would be criminally liable under Federal Statute if the Respondent was ordered to reimburse the Petitioner for his treatment. Ultimately, the Court ordered that the case be remanded so that the Board can have an opportunity to adequately address the issues raised in appeal.

 

Jared P. O’Connor of Shaheen & Gordon, P.A. on the brief and orally for the Petitioner. Robert S. Martin of Tentindo, Kendall, Canniff & Keefe, LLP on the brief and orally for the Respondent.