In December 2015 the Workers’ Compensation Board
Appellate Division heard oral argument in Bourgoin v. Twin Rivers Paper
Company, WCB No. 89-01-36-55 (March 16, 2015), a case in which the ALJ
found the cost of medical marijuana compensable. Ignoring the classification of
marijuana under federal law as an illegal drug, the ALJ found it significant
that medical marijuana is, “authorized by state law and tolerated by federal law
enforcement.” The ALJ dismissed the argument that Maine law protects “private
health insurers” from being required to pay for medical marijuana, by finding
that workers’ compensation insurers “are not private health insurers, so this
statute does not apply.”
In Noll v. Lepage Bakeries, Inc., WCB
No. 12-003547B (September 18, 2015), the ALJ denied an employee’s petition
seeking payment for medical marijuana, finding that the Maine Medical Use of
Marijuana Act provision that the statute may not be construed to require a “. .
. private health insurer to reimburse a person for costs associated with the
medical use of marijuana…” applies to shield a worker’s compensation insurer
from responsibility to pay for medical marijuana. The ALJ reasoned that because
a workers’ compensation insurer is required to pay work injury related medical
bills it qualifies as a “private health insurer” under the Maine Medical Use of Marijuana Act.
Following the issuance of that decision, the Employee then moved for further findings of fact and conclusions of law. The ALJ issued further findings reversing the above decision. In these further findings dated November 2, 2015, the ALJ found persuasive the employee’s argument that (1) the Act defines self-insured employers (in Noll, the employer was self-insured) as an “employer” rather than any kind of “private health insurer” and, even if the employer and TPA were considered an insurer, the Act and Bureau of Insurance Regulations define WC insurance as “casualty” rather than “health” and, therefore the Employer is not a “private health insurer” within the Title 22 exemption. This is significant because, under the ALJ’s reasoning, all workers’ compensation insurers (self-insured and traditional insurers) fall under the umbrella of casualty insurers and, therefore, are not considered “private health insurers.” Therefore, no workers’ compensation insurer would be shielded from paying for medical marijuana in the workers’ compensation context.