Maine Workers' Compensation Law and Medical Marijuana
Last year, for a different website, I wrote a blog post about an intriguing development in Maine's workers' compensation law. A pair of decisions from the Appellate Division of the Workers' Compensation Board ordered employers (or insurance companies, really) to make payments for medical marijuana (through reimbursements) to injured employees with chronic pain. Well, one case was appealed from there to the Law Court (Maine's highest state court), and it has become a hot item in local news. The Portland Press Herald and Bangor Daily News published articles about the case, and at least one Maine TV station sent a news team to report on oral arguments. Although I think the media attention is caused more by the titillation factor than by any academic interest in workers' compensation law -- that is, people are interested in, if not astonished by, the idea of an insurance company's payment for marijuana -- it is also an interesting case to me. I am not only a practicing workers' comp lawyer; I am also writing a book on this area of law.
I have read the decision that has been appealed, called Bourgoin v. Twin Rivers Paper Co., LLC, as well as two other decisions that dealt with the same issue. I also went to the court and listened to the oral arguments (which are discussions of the case between each side's attorney and the seven-justice court). The oral arguments struck me as somewhat odd, as the discussions between lawyers and the judicial panel often digressed into matters that shouldn't have any bearing on the outcome of the case, such as purely hypothetical prosecution of insurance companies, rather than the proper interpretation of a section of the state workers' comp law, which is the most critical issue, in my opinion, for this case.
Still, I expect the court to uphold the Workers' Compensation Board's decision, for a few reasons. First, despite insurance companies' repeatedly expressed concerns about the function or efficacy of medical marijuana, the injured worker in this case clearly benefited immensely from its use as a replacement for addictive opiates. (And his medical history made him a particularly sympathetic individual, too.) Second, although insurance companies tend to raise the specter of federal prosecution if they reimburse injured workers for medical marijuana (because it is illegal under federal law) nobody seems able to cite a single instance where it has happened in the real world. Third, this court is generally deferential to administrative agencies when their decisions are appealed, which means they rarely reverse administrative decisions unless they arise from a clear error of law.