August 26, 2019
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Employers don’t have to pay for medical marijuana, Maine’s top court rules

Don Eno | SJVT/FhF | File
Don Eno | SJVT/FhF | File
Gaetan Bourgoin, with his wife Nancy, sit in their Madawaska home and share his story of how medical marijuana helped him move away from an opioid pain regimen that left him zombie-like. Maine employers and insurers cannot be compelled to pay for an injured worker’s medical marijuana, the state’s highest court ruled Thursday.

PORTLAND, Maine — Maine employers and insurers cannot be compelled to pay for an injured worker’s medical marijuana, the state’s highest court ruled Thursday.

In a 5-2 decision, justices with the Maine Supreme Judicial Court ruled federal law takes precedence in the case of former Madawaska millworker Gaetan H. Bourgoin vs. Twin Rivers Paper Co.

Writing for the majority, Justice Jeffrey Hjelm said the federal Controlled Substances Act tops the Maine Medical Use of Marijuana law.

Bourgoin, who hurt his back on the job in 1989 and suffers from severe chronic pain, contends that marijuana is cheaper and safer than narcotics.

Under the state’s medical marijuana law, Bourgoin has used the drug to alleviate his pain since 2012.

[High court considers whether workers’ comp should cover former millworker’s medical pot]

The disabled former millworker tried a variety of opioid-based painkillers over the years without relief, according to court documents. The cost of medical marijuana 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, stated in his brief to the state’s high court.
In February 2012, Bourgoin filed a “petition for payment of medical and related services” with the state’s Workers’ Compensation Board seeking payment from Twin Rivers for the cost of the medical marijuana. Twin Rivers opposed the petition, contending that a “private health insurer” shouldn’t be required to cover the cost of medical marijuana and that doing so put it in violation of federal law.

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

The company appealed to the appellate division, which affirmed the hearing officer’s decision. The Law Court then granted Twin Rivers petition for appellate review.

The supreme court concluded that in the narrow circumstances of the case, where an employer is subject to an order that would require it to subsidize an employee’s acquisition of medical marijuana, there is a positive conflict between federal and state law, and as a result, the Controlled Substances Act preempts the state’s medical marijuana law.

In reaching their decision, justices said that federal law bars the prescribed use of marijuana and any other schedule 1 drug, even in a state with local laws allowing the medical use of marijuana.

“Therefore, were Twin Rivers to comply with the administrative order by subsidizing Bourgoin’s use of medical marijuana, it would be engaging in conduct that meets all of the elements of criminal aiding and abetting,” wrote Hjelm.

The court noted that in previous cases, the courts have ruled that a state law authorizing medical marijuana use does not require an employer to treat an employee’s medical marijuana use as a reasonable workplace accommodation.

“So long as marijuana remains a Schedule 1 substance under the CSA, an employer ordered to compensate an employee for medical marijuana costs is thereby required to commit a federal crime defined by the CSA,” Hjelm wrote.

Justices Joseph Jabar and Donald Alexander dissented, stating they did not believe that the federal law preempted the state law in this case.

Jabar wrote that the severity and chronic nature of Bourgoin’s pain and his “many and varied attempts to try different treatments, none of which were effective, and the ultimate effectiveness of medical marijuana for his particular situation, show that the medical use of marijuana was reasonable and proper in the case.”

Bourgoin’s attorney said Thursday afternoon that he and his client were “disappointed” in the ruling.

“I respectfully disagree with the majority decision and agree with the dissenters,” Trask said. “I think the dissent was accurate. The gist of the majority said that reimbursing my client put them in jeopardy of federal prosecution for a drug crime. I don’t think it is accurate. Reimbursing someone for legally prescribed and purchased marijuana doesn’t give rise to a crime which is what the dissenter said.”

He also said that there was a significant human element to the case.

“My client has had a hard time for 25 years, he was been near suicidal at times and near death at times taking the [narcotic pain killers]. He has finally gotten off opiods and got a semblance of a normal life.”

Trask said that he believed that Bourgoin would continue to attempt to get marijuana, but it will be “difficult for him.”

There is one remaining legal option, according to Trask, which includes asking the U.S. Supreme Court to review the case. He did not think that Bourgoin would proceed.

The ruling sends the case back to the Workers’ Compensation Appellate Division to vacate the decision of the hearing officer and effectively deny payment of medical expenses and services.

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