May 19, 2014 – Gregory Vialpando v. Ben’s Automotive Services and Redwood Fire & Casualty, No. 32,920

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: __________
Filing Date: 	May 19, 2014
NO. 32,920
GREGORY VIALPANDO,
Worker-Appellee,
v.
BEN’S AUTOMOTIVE SERVICES and
REDWOOD FIRE & CASUALTY,
Employer/Insurer-Appellants.
APPEAL FROM THE WORKERS’ COMPENSATION ADMINISTRATION
Terry Kramer, Workers’ Compensation Judge
Peter D. White
Santa Fe, NM
for Appellee
French & Associates, P.C.
Lisa T. Mack
Albuquerque, NM
for Appellants

OPINION
WECHSLER, Judge.
{1} 	We consider in this appeal whether, under the Workers’ Compensation Act (the
Act), NMSA 1978, §§ 52-1-1 to -70 (1929, as amended through 2013), an employer
and insurer must reimburse an injured worker for medical marijuana used pursuant to
the Lynn and Erin Compassionate Use Act (Compassionate Use Act), NMSA 1978,
§§ 26-2B-1 to -7 (2007). The workers’ compensation judge (WCJ) found that Worker
Gregory Vialpando was qualified to participate in the State of New Mexico
Department of Health Medical Cannabis Program authorized by the Compassionate
Use Act and that such treatment would be reasonable and necessary medical care. The
WCJ ordered Worker to pay for medical marijuana through the program and
Employer and Insurer Ben’s Automotive Services and Redwood Fire & Casualty
(collectively, Employer) to reimburse Worker. Employer appeals, arguing that (1) the
WCJ erred because his order is illegal and unenforceable under federal law and also
thereby contrary to public policy, and (2) the Act and regulations promulgated
pursuant thereto do not recognize reimbursement for medical marijuana. Because we
agree with the WCJ that the Act authorizes reimbursement for medical marijuana, we
affirm.

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BACKGROUND
{2} 	In the course of, and arising out of, his employment with Employer, Worker
sustained a low back injury on June 9, 2000 that resulted in his undergoing numerous
surgical procedures. In a stipulated compensation order entered August 22, 2008, the
WCJ determined that Worker had reached maximum medical improvement for
impairments for physical and psychological conditions and sleep apnea. Worker had
a combined whole body impairment rating of 43 percent to 46 percent, and the parties
agreed that he had a 99 percent permanent partial disability. One doctor described
Worker’s pain as “high intensity multiple-site chronic muscle, joint, and nerve pain
directly resulting from back injury, followed by failed spinal surgery and attendant
myalgia/myositis from resulting compensatory structural imbalances.” He considered
Worker to be 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.” At that time, Worker was taking “multiple narcotic based
pain relievers [and] multiple anti-depressant medications.”
{3} 	On April 8, 2013, Worker filed an application for approval by the WCJ of
medical treatment for medical marijuana (application for approval). Worker had been
certified for the program by his health care provider and another medical doctor based
on severe chronic pain that was debilitating.

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{4} 	After a hearing, and denial of reconsideration, the WCJ found that Worker was
“entitled to ongoing and reasonable medical care” with Worker’s authorized health
care provider and referrals of the health care provider, that Worker was qualified to
participate in the medical cannabis program authorized by the Compassionate Use
Act, and that participation in the program constituted reasonable and necessary
medical care. The WCJ ordered Worker to pay for the authorized medical marijuana
to be reimbursed by Employer. Employer appealed.
AUTHORITY FOR MEDICAL MARIJUANA REIMBURSEMENT
{5} 	We initially address Employer’s argument that the Act and attendant regulations
do not authorize the reimbursement of medical marijuana. 	Because the argument
raises a question of interpretation of the Act based on the facts of this case, we review
the WCJ’s order de novo. DeWitt v. Rent-A-Center, Inc., 2009-NMSC-032, ¶ 14, 146
N.M. 453, 212 P.3d 341. We apply the plain meaning of the words of a statute when
the meaning of the statutory language is “truly clear.” 	State ex rel. Helman v.
Gallegos, 1994-NMSC-023, ¶ 22, 117 N.M. 346, 871 P.2d. 1352. When there is any
doubt as to the meaning of the words of the statute—that is, when the meaning of the
statute is at all vague, uncertain, ambiguous, or otherwise doubtful—it is “part of the
essence of judicial responsibility to search for and effectuate the legislative
intent . . . underlying the statute.” Id. ¶¶ 22-23.

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{6} 	Under the Act, an employer is required to provide an injured worker
“reasonable and necessary health care services from a health care provider.” Section
52-1-49(A). 	“Health care provider” is defined in the Act with a listing of various
types of providers that includes hospitals, doctors, nurses, and therapists. NMSA
1978, § 52-4-1 (2007). In 2007, the list was amended to add licensed pharmacists and
athletic trainers. The list does not include a dispenser of medical marijuana under the
Compassionate Use Act. Section 52-4-1(H), (O). Section 52-4-1(P) does include as
a health care provider “any person or facility that provides health-related services in
the health care industry, as approved by the director” of the Workers’ Compensation
Administration (WCA), but it is undisputed that the director has not approved a
dispenser of medical marijuana as a health care provider under this provision.
{7} 	The director of the WCA has adopted regulations pursuant to NMSA 1978,
Section 52-4-5 (1993) and NMSA 1978, Section 52-5-4 (2003). 	The regulations
applicable when Worker filed his application for approval incorporated both statutory
provisions and defined “health care provider” as “any person, entity, or facility
authorized to furnish health care to an injured or disabled worker pursuant to NMSA
1978, Section 52-4-1, including any provider designated pursuant to NMSA 1978,
Section 52-1-49.” 11.4.7.7(W) NMAC (12/31/2011). The regulations further defined
“services” as “health care services, . . . procedures, drugs, products or items provided

5
to a worker by an HCP [health care provider], pharmacy, supplier, caregiver, or
freestanding ambulatory surgical center which are reasonable and necessary for the
evaluation and treatment of a worker with an injury or occupational disease covered
under [the Act] or the New Mexico Occupational Disease Disablement Law.”
11.4.7.7(SS) NMAC (12/31/2011).
{8} 	The regulations address the situation before us in which a health care provider
recommends that a worker obtain a product that is reasonable and necessary for the
worker’s treatment but which, because of its nature, may not be available from another
health care provider. In this case, the product is medical marijuana that is subject to
the Compassionate Use Act.
{9} 	The WCJ found that Worker’s “[p]articipation in a course of cannabis in the
New Mexico [M]edical Cannabis Program would constitute reasonable and necessary
medical care.” Dr. Belyn Schwartz, Worker’s health care provider, recommended the
services and provided the medical certification form necessary under rules adopted
pursuant to the Compassionate Use Act for Worker to participate in the program. See
§ 26-2B-7(A) (requiring the New Mexico Department of Health to adopt rules to
implement the Compassionate Use Act). 	Dr. David Peters also provided a
certification form.

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{10} 	Section 52-1-49(A) requires an employer to provide a worker “reasonable and
necessary health care services from a health care provider.” Employer argues that the
services ordered by the WCJ do not fall within Section 52-1-49 because the services
are provided by the program, which is not recognized by the director as a health care
provider. However, the regulations do not support Employer’s argument. By defining
“services” as including a product from a supplier that is reasonable and necessary for
a worker’s treatment, the regulations do not contemplate that every aspect of a
worker’s reasonable and necessary treatment be directly received from a health care
provider. Such a requirement would be unworkable. A worker’s treatment may well
require services that are not available from a health care provider. The most obvious
of such services may be medical supplies or equipment. 	As contemplated by the
regulations, providers other than a health care provider such as a pharmacy (as
distinguished from a licensed pharmacist), supplier, or caregiver may provide such
services. 11.4.7.7(U) NMAC (12/31/2011). The only prerequisite is that the service
be “reasonable and necessary” for the worker’s treatment. Id. When understood in
conjunction with the regulations, Section 52-1-49 requires only that a health care
provider have the responsibility for the provision of the reasonable and necessary
services, not that each and every service must be provided by a health care provider.

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{11} 	Employer also contends that we must view the service in this case as that of a
prescription drug rather than as another type of service. 	A “prescription drug” is
defined in the regulations as “any drug, generic or brand name, which requires a
written order from an authorized HCP for dispensing by a licensed pharmacist or
authorized HCP.” 11.4.7.7(OO) NMAC (12/31/2011). Yet, by definition, medical
marijuana is not a prescription drug. Although it is a controlled substance, it is not
dispensed by a licensed pharmacist or a health care provider upon a written order of
a health care provider. A doctor may not order medical marijuana but may certify a
patient to enroll in the medical cannabis program. Section 26-2B-3(14). The program
is not a licensed pharmacist or a health care provider. To Employer, the fact that the
program is not a licensed pharmacist or a health care provider is the reason that the
WCJ’s order does not comply with the Act or the regulations. But this argument rests
on the basis that the definition of a prescription drug is the only manner by which the
WCJ could order Employer’s reimbursement of medical marijuana. It does not take
into account the definition of “services.” That definition is significantly broader than
the definition of prescription drug. 	It includes non-prescription drugs and other
products and further includes providers other than licensed pharmacists and health
care providers. There is no basis in the regulations to declare that the definition of

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prescription drug is the exclusive manner to address the provision of medical
marijuana to an injured worker.
{12} 	Moreover, if we were to apply the definition of prescription drug as a model for
medical marijuana, our analysis would lead to the same conclusion. Indeed, medical
marijuana is a controlled substance and is a drug. Instead of a written order from a
health care provider, it requires the functional equivalent of a prescription—
certification to the program. Although it is not dispensed by a licensed pharmacist or
health care provider, it is dispensed by a licensed producer through a program
authorized by the Department of Health. The control that underlies the dispensing of
a prescription drug in the regulations, requiring either a licensed pharmacist or a
recognized health care provider, is present because of the Department of Health
licensing provisions mandated by the Compassionate Use Act. 	See § 26-2B-3(D)
(requiring a “licensed producer” of medical marijuana to be licensed by the
Department of Health). We note that prior to 2007, a licensed pharmacist was not
listed as a health care provider, even though the regulation defining a prescription
drug was the same as it was for the purposes of this case and permitted a licensed
pharmacist to dispense a prescription drug. 	See 2007 N.M. Laws, ch. 328, § 3(O)
(adding “a pharmacist licensed pursuant to the provisions of Chapter 61, Article 11
NMSA 1978” to the listing of health care providers in Section 52-4-1); 11.4.7.7(OO)

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NMAC (12/31/2011) (defining “prescription drug” as “any drug, generic or brand
name, which requires a written order from an authorized HCP for dispensing by a
licensed pharmacist or authorized HCP”).
{13} 	In this regard, we further observe the legislative intent of the Compassionate
Use Act “to allow the beneficial use of medical cannabis in a regulated system for
alleviating symptoms caused by debilitating medical conditions and their medical
treatments.” Section 26-2B-2. The Legislature has provided in the Act that a worker
receive through an employer reasonable and necessary health care services, which the
regulations define to include “drugs, products or items provided to a worker” in
various ways provided that they are “reasonable and necessary for the evaluation and
treatment of a worker.” 	11.4.7.7(SS) NMAC (12/31/2011); Section 52-1-49(A).
When read together, we view the legislative intent to be that a worker’s treatment
under a program authorized by the Compassionate Use Act that has been determined
by a WCJ to be reasonable and necessary treatment is embraced within the Act. See
State v. Almanzar, 2014-NMSC-001, ¶ 15, 316 P.3d 183 (stating that the interpretation
of a statute is informed by its function within a comprehensive legislative scheme);
State v. Rivera, 2004-NMSC-001, ¶ 13, 134 N.M. 768, 82 P.3d 939 (stating that
wherever possible we must read legislative enactments as harmonious instead of
contradictory); 1A Norman J. Singer & J.D. Shambie Singer, Statutes and Statutory

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Construction, § 31:6, at 696-705 (7th ed. 2009) (stating that the general rules of
statutory interpretation apply to regulations); see NMSA 1978, § 52-5-1 (1990) (“It
is the intent of the [L]egislature [that the Act] be interpreted to assure the quick and
efficient delivery of indemnity and medical benefits to injured and disabled workers
at a reasonable cost to the employers[.]”).
CONFLICT WITH FEDERAL LAW
{14} 	Employer argues that the order by the WCJ is illegal because Employer would
be required to violate federal law in reimbursing Worker for his medical marijuana
expenses. 	Additionally, Employer argues that the order of the WCJ is contrary to
federal public policy as expressed by the Controlled Substances Act (CSA), 21 U.S.C.
§§ 801-904 (2012).
{15} 	Under the CSA, marijuana is classified as a Schedule I controlled substance
and, as such, it is generally illegal to use or possess it except as related to federally
approved research. 	21 U.S.C. §§ 812, 822, 823(f). 	There is no exemption under
federal law for medical uses. See Gonzales v. Raich, 545 U.S. 1, 27-28 (2005). As
follows from Gonzales, the Supremacy Clause dictates that any conflict between the
Compassionate Use Act and the CSA would be resolved in favor of the CSA. 	See
Gonzales, 545 U.S. at 29 (stating that state law bows to federal law under the
Supremacy Clause to the extent that there is conflict). But this case is unlike Gonzales

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because 	Gonzales 	resolved a direct conflict between the CSA and state law
authorizing marijuana use and cultivation for medical purposes that this case does not
present. 	See Gonzales, 545 U.S. at 5. Employer does not attempt to challenge the
legality of the Compassionate Use Act. 	Instead, Employer asserts that, because
marijuana remains a controlled substance under federal law, the order to reimburse
Worker for money spent purchasing a course of medical marijuana “essentially
requires” Employer to commit a federal crime. However, Employer does not cite to
any federal statute it would be forced to violate, and we will not search for such a
statute. See Headley v. Morgan Mgmt. Corp., 2005-NMCA-045, ¶ 15, 137 N.M. 339,
110 P.3d 1076 (“We will not review unclear arguments, or guess at what [a party’s]
arguments might be.”).
{16} 	Employer also argues that the order should be reversed because it is contrary
to federal public policy as reflected in the CSA and Gonzales. Worker contends that
federal public policy supports medical marijuana because the Department of Justice
has announced a somewhat deferential enforcement policy. Although not dispositive,
we note that the Department of Justice has recently offered what we view as equivocal
statements about state laws allowing marijuana use for medical and even recreational
purposes. On one hand, the Department of Justice affirmed that marijuana remains
illegal under the CSA and that federal prosecutors will continue to aggressively

1 The eight identified areas of enforcement are:
(1) Preventing the distribution of marijuana to minors;
(2) Preventing revenue from the sale of marijuana from going to
criminal enterprises, gangs, and cartels;
(3) Preventing the diversion of marijuana from states where it is
legal under state law in some form to other states;
(4) Preventing state-authorized marijuana activity from being used
as a cover or pretext for the trafficking of other illegal drugs or other
illegal activity;
(5) Preventing violence and the use of firearms in the cultivation
and distribution of marijuana;
(6) Preventing drugged driving and the exacerbation of other
adverse public health consequences associated with marijuana use;
(7) Preventing the growing of marijuana on public lands and the
attendant public safety and environmental dangers posed by marijuana
production on public lands;
(8) Preventing marijuana possession or use on federal property.
Memorandum from James M. Cole, Deputy Attorney General, to All United States
Attorneys, Guidance Regarding Marijuana Enforcement (August 29, 2013).
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enforce the statute. 	But, on the other hand, and in the same documents, the
Department of Justice identified eight areas of enforcement priority1 and indicated that
outside of those priorities it would generally defer to state and local authorities. In
addition, the Department of Justice stated that it informed the Governors of
Washington and Colorado, two states that voted to legalize possession of marijuana
and regulate its production and distribution, that it would defer its right to challenge
those laws. 	We also observe that New Mexico public policy is clear. 	Our State
Legislature passed the Lynn and Erin Compassionate Use Act “to allow the beneficial

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use of medical cannabis in a regulated system for alleviating symptoms caused by
debilitating medical conditions and their medical treatments.” Section 26-2B-2. We
decline to reverse the order on the basis of federal law or public policy.
CONCLUSION
{17} 	For the foregoing reasons, we affirm the order of the WCJ.
{18} 	IT IS SO ORDERED.
________________________________
JAMES J. WECHSLER, Judge
WE CONCUR:
________________________________
CYNTHIA A. FRY, Judge
________________________________
MICHAEL E. VIGIL, Judge