Legal Developments

Marijuana: The Great Pain Management Hope?

Some doctors are turning to marijuana when opioids fail to ease patient pain. And courts say the treatment is reasonable under workers' comp.
By: | July 6, 2015

Doctors supported workers’ comp claimants’ medical marijuana use when powerful opioid narcotics combined with other medications failed to relieve their chronic pain conditions, three recent New Mexico Court of Appeals rulings show.

Legal arguments in all three cases focused on whether insurers and employers must reimburse claimants for their medical marijuana consumption. In each case, the court ruled against insurers and employers, saying they must pay.


But the underlying facts in the three cases revealed that doctors supported their patients’ marijuana use when polypharmaceutical regimens — including several addictive opioid pain medications combined with numerous other drugs — failed to diminish chronic pain stemming from back injuries.

“The doctors, I don’t think, believe the opioids are a long-term solution [and the pharmaceutical pain medications may create their] own set of problems over time,” said Peter D. White, a Santa Fe, N.M., attorney who represented claimants in two of the cases. “I think they are hopeful medical cannabis will reduce the reliance, if not eliminate, the reliance on prescription pain medications.”

It is reasonable and not surprising that doctors treating patients suffering from intractable pain would try medical marijuana as an alternative to combinations of opioids and other prescription drugs, added Kevin T. Glennon, vice president of Clinical Education and Quality Assurance Programs at One Call Care Management.

“Physicians are always looking for alternatives,” to narcotics for patients with intractable pain because increased doses of narcotics become ineffective as patients build up a tolerance, while also increasing the risk of addiction, Glennon said.

Meanwhile, a June report published in the Journal of the American Medical Assn., based on a review of medical literature detailing existing clinical trials, found that “use of marijuana for chronic pain, neuropathic pain, and spasticity due to multiple sclerosis is supported by high-quality evidence.”

Several of the trials reviewed found that marijuana “may be efficacious” for pain, the report states. But the research does not support marijuana’s effectiveness for other illnesses, the review of past studies also found.

Court records in the three New Mexico cases do not reveal whether the doctors who authorized medical marijuana for the three workers’ comp claimants suffering from chronic pain based their decisions on such medical research.

“I think [doctors] are hopeful medical cannabis will reduce the reliance, if not eliminate, the reliance on prescription pain medications.”  —Peter D. White, attorney, Santa Fe, N.M.

But the records do show the doctors authorizing their patients’ marijuana use under New Mexico’s medical marijuana law called the Compassionate Use Act.

The latest of the New Mexico decisions, handed down on June 26, involved a chronic-pain patient consuming numerous prescription medications that commonly concern workers’ comp observers because of the drugs’ association with addiction and overdose deaths, while often failing to eliminate chronic pain long term.


Oxycontin, oxycodone, Soma, Norflex, gabapentin, Lyrica, Percocet, fentanyl, and Zantac are among drugs prescribed for the claimant, court records in the case of Sandra Lewis v. American General Media and Gallagher Bassett reveal.

In addition to those drugs, Lewis consumed medical marijuana and believed it was the most effective of the medications. One of three doctors who approved her marijuana use stated that other medications had failed to treat her chronic pain, and that the “benefits of medical marijuana outweigh the risk of hyper doses of narcotic medications.”

A court-appointed psychologist also supported her marijuana use for pain control, declaring it reasonable and appropriate. The court appointed the psychologist after the employer in the case requested an independent medical exam.

The appeals court eventually ruled that “marijuana constitutes reasonable and necessary medical care.”

Similarly, the January 13, 2015 appeals court opinion in the case of Miguel Maez v. Riley Industrial and Chartis shows that medications prescribed to claimant Maez for chronic back pain included Soma, Ultram, Sprix, Percocet, Lortab (oxycodone), and hydrocodone.

But when those failed to manage his pain, his doctor authorized medical marijuana as a trial, to see if it would help Maez.

In the third case, a May 19, 2014, appeals court opinion in Gregory Vialpando v. Ben’s Automotive Services and Redwood Fire & Casualty describes a workers’ comp claimant treated with “multiple narcotic pain relievers and multiple anti-depressant medications” for severe chronic pain.

His doctor also recommended marijuana services and provided the certification necessary under the Compassionate Use Act.

Employers in all three cases posed various arguments as to why they should not be responsible for funding the claimants’ marijuana use. But they found the court unsympathetic.

Many doctors remain skeptical about medical marijuana’s efficacy, said Victor A. Titus, a Farmington, N.M., attorney who represented claimant Miguel Maez. Therefore, the three cases may not represent a trend of doctors recommending marijuana as an alternative to prescription pharmaceuticals, he said.

“I know there are a lot of doctors who still don’t believe in medical marijuana,” he said.

But White has spoken with many injured workers who are certified to use medical marijuana in New Mexico, yet have not asked their insurer to pay for it.


They report, anecdotally, that the drug has effectively addressed their pain, White said.

Other cases could benefit from knowing whether medical marijuana helped the claimants in the three New Mexico situations eliminate their narcotic use, Glennon said.

“If they were willing to share that information that would substantiate that medical marijuana is beneficial,” Glennon said. “However, I have a feeling the reason that information is not readily available is they are still doing both.”Untitled-2

Roberto Ceniceros is a retired senior editor of Risk & Insurance® and the former chair of the National Workers' Compensation and Disability Conference® & Expo. Read more of his columns and features.

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