3-Judge Panel in New Mexico Rules Worker’s Comp Must Pay For Man’s Cannabis


The conflict between the increasing numbers of state laws favoring the medicinal or recreational use of marijuana, and the federal government’s insistence on keeping its use highly illegal, has led to a dangerous amount of grey area attached to any of the various pot laws passed around the country so far.
One place where this grey area is in full effect every single day – whether the boss knows it or not – is the workplace. Though the courts have historically favored the employer in cases involving medical marijuana, one man in New Mexico just bucked that trend in a Worker’s Comp decision whose ripple effects could set a very meaningful precedent for future cases.

Greg Vialpando was working for a company called Ben’s Automotive Services when he suffered a serious back injury in an undisclosed work-related accident. After multiple surgeries intended to repair his severely damaged spine, and through the fog of the strongest prescription pain killers available, he was still experiencing excruciating pain.
In a 2008 report, one doctor said that Vialpando was suffering “from some of the most extremely high intensity, frequency, and duration of pain, out of all of the thousands of patients I’ve treated within my 7 years practicing medicine.”
Last year, meticulously following all state laws, Vialpando’s doctor recommended him to the New Mexico Department of Health’s Medical Marijuana Program. The newfound relief that he got from cannabis seemed to be the answer he had been looking for after waking up in pain for so many years.
As he surely learned soon enough, however, good weed doesn’t come cheap. So Vialpando took the funds he was getting from his Worker’s Comp settlement from Ben’s Automotive, and started trying to spend them on healing herbs instead of pain pills.
Ben’s Automotive Services and their insurer, Redwood Fire & Casualty, immediately filed an appeal that weed is not a real prescription drug, and that the sanctioned cannabis dispensaries are not real pharmacies, and that the state medical marijuana program is not a real pill-pushing prescription-hustling health care provider.
The court’s denial of their appeal was swift, citing the fact that New Mexico’s medical marijuana program is run through the state Department of Health, and has very strict guidelines and sufficient regulations to consider it a reasonable health care provider.
Incensed, Ben’s and Redwood re-appealed, falling back on the age-old statute of “But it’s still illegal federally!” Redwood claimed that if it was forced to write checks to reimburse Vialpando’s pot smoking, they would be breaking federal laws.
Again, the court’s 3-judge panel wasted no time in response with a unanimous rejection of the flailing efforts by the employer and insurer. In an almost sarcastic dismissal, Court of Appeals Judge James J. Wechsler spoke for the panel and bluntly stated, “Employer does not cite to any federal statute it would be forced to violate, and we will not search for such a statute”.
Also officially on the record courtesy of the August 29th decision by the 3-judge panel in New Mexico is the admission of the grey area in cannabis laws nationwide. Judge Wechsler summed up his and his colleagues’ position by stating that “the [U.S.] Department of Justice has recently offered what we view as equivocal statements about state laws allowing marijuana use for medical and even recreational purposes.”
With their decision in favor of Mr. Vialpando and his legal cannabis use, the New Mexico Court of Appeals unequivocally took back a big chunk of states’, and patients’, rights on the issue of cannabis reform.