Employer can't be ordered to pay for medical marijuana, Maine SC rules; Dissent says workers could be pushed to opioids

By Elizabeth Alt | Jun 28, 2018

PORTLAND, Maine (Legal Newsline) – The Maine Supreme Court has issued a ruling that a company cannot be required to pay for an injured employee's medical marijuana. The dissenting justices argued that this decision ignores what’s best for the injured worker.

“A person’s right to use medical marijuana cannot be converted into a sword that would require another party, such as Twin Rivers, to engage in conduct that violates the (Controlled Substances Act,” the June 14 ruling states.

The majority noted that complying with both state and federal law in this case was impossible and reversed the Workers' Compensation Board Appellate Division order. Justice Jeffrey Hjelm wrote the opinion for justices Andrew Mead, Thomas Humphrey, Ellen Gorman and Leigh Saufley.

The dissenting opinion by Justice Donald Alexander argues that, “The result of the court’s opinion today is to deprive (Gaetan) Bourgoin of reimbursement for medication that has finally given him relief from his chronic pain, and to perhaps force him to return to the use of opioids and other drugs that…may have placed Bourgoin’s life at risk.” 

Justices Alexander and Joseph Jabar wrote separate dissenting opinions.

Gaetan H. Bourgoin worked as a paper machine laborer for Twin Rivers Paper Co. LLC until a work-related back injury in 1989 rendered him permanently disabled. 

After multiple treatments and seeing different pain management doctors, Bourgoin received a certification for medical marijuana in 2012 to deal with his chronic pain.  In February 2012, Bourgoin filed a petition with the Workman’s Compensation Board Appellate Division to have Twin Rivers pay for his medical marijuana. 

Twin Rivers argued that ordering it to pay for the medical marijuana violates the Controlled Substances Act (CSA), and that medical marijuana is not a “reasonable and proper form of treatment” under the Workers' Compensation Act (WCA).

The Workers' Compensation Board issued the order in 2015, and an appellate court affirmed the order in April 2016. Twin Rivers claims that the Maine Medical Use of Marijuana Act (MMUMA) shows “legislative intent that no third party should be required to reimburse a person for their use of medical marijuana.”

Noting that Twin Rivers could be found criminally liable if they paid for Bourgoin’s medical marijuana, facing severe penalties, including incarceration, Hjelm stated, “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.” 

Dissenting, Justice Jabar states that the majority’s reliance on the theory that Twin Rivers would be aiding and abetting is speculative, because the government could not prove that Twin Rivers would have had a criminal intent in following the order.

Justice Jabar stated the Workers' Compensation Board judgment should be upheld as the Workers' Compensation Board hearing officer correctly found that medical marijuana was a reasonable and proper treatment after hearing the evidence that no other treatment had worked for Bourgoin. 

Jabar stated that no positive conflict between the CSA and the MMUMA exists because the order directing Twin Rivers to reimburse medical marijuana expenses does not require them to “physically manufacture, distribute, dispense or possess marijuana.” 

Alexander noted in his dissent that the extensive discussion on preemption may have caused the court to “lose sight of the injured worker,” and states the court reached too far “speculating about the future, rather than looking at the present.”

The case has been remanded the case back to the Workman’s Compensation Appellate Division to deny the petition for payment of medical expenses and services. 

Twin Rivers is represented by counsel with Rudman Winchell in Bangor, Maine.

Bourgoin is represented by Currie & Trask PA in Presque Isle, Maine.

Maine Supreme Court case number WCB-16-433

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