November 25, 2017
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High court to decide if medical marijuana covered by workers’ comp

By Judy Harrison, BDN Staff
Updated:
Linda Coan O'Kresik | BDN
Linda Coan O'Kresik | BDN
The Maine Supreme Judicial Court in a file photo

The Maine Supreme Judicial Court will decide if state law requires Workers’ Compensation Insurance to pay for a millworker’s medical marijuana or if the insurer could be charged as an accessory in a drug deal under federal law.

Justices are set to hear arguments in the case Wednesday at the Capital Judicial Center in Augusta, which will be the first time the state’s highest court has considered the question of insurance reimbursement for the cost of medical marijuana.

The case pits a former Madawaska mill employee, injured on the job, against the company that administers the mill’s insurance for injured workers.

Gaetan Bourgoin, now 58, of Madawaska, in 2015 sought reimbursement for medical marijuana prescribed for pain due to a back injury suffered in 1989 when he was 29 and working at what is now Twin Rivers Paper Co.

Bourgoin tried a variety of opioid-based painkillers over the years without relief, according to briefs filed in Portland.

In 2015, the Maine Workers’ Compensation Board ordered that Sedgwick Claims Management Services of Memphis, the third party that administers Two Rivers’ insurance plan, reimburse Bourgoin for his medical marijuana.

The cost of the drug runs between $350 and $400 a month compared to the more than $2,000 a month it had cost for Bourgoin’s opioid-based prescription painkillers, Bourgoin’s attorney, Norman Trask of Presque Isle, said in his brief to the state’s high court.

Attorneys for the mill and Sedgwick appealed the decision, arguing that an insurer can’t be ordered to pay for marijuana since it is illegal under federal law, which trumps state law. The U.S. Department of Justice could prosecute insurance companies for reimbursing people for purchasing illegal drugs, they argued.

In addition to the conflict between state and federal marijuana laws, requiring reimbursement for medical marijuana violates the Maine statute that legalized the drug for medicinal use, Bangor attorneys Anne-Marie Storey and John Hamer, who represent the mill and its insurer, said in their brief.

The Maine Medical Use of Marijuana Act states that it may not “require a government medical assistance program or private health insurer to reimburse a person for costs associated with the medical use of marijuana,” Shorey and Hamer argued.

Trask countered that the state’s workers’ compensation law states that employees injured on the job are “entitled to reasonable and proper medical, surgical and hospital services, nursing, medicines, and mechanical, surgical aids, as needed, paid for by the employer.” Marijuana, in this case, would fall under “medicines,” Bourgoin’s attorney argued.

New Mexico’s appellate court appears to be the only state appellate court in the country that has ruled on reimbursement by insurers for medical marijuana. In three different cases since 2014, New Mexico justices have ruled that state law requires insurance companies pay for medical marijuana.

 


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