Maine Workers’ Compensation Board Rules on Compensability of Medical Marijuana; Appellate Division to Ultimately Rule on the Issue Following Recent Oral Argument

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.