It's now up to the lower courtto determine whether or not the town of Tonawanda New York willhave to pay workers' compensation insurance benefits for a policeofficer who was prescribed medicinal marijuana for his chronic backpain he has suffered since he slipped on icy pavement at the sceneof a car accident. (Photo: Shutterstock)

The Supreme Court of New York, appellate division, ruled toremand an earlier decision that denied coverage of an injured police officer's medical marijuana forchronic pain that he suffers after a car accident.

In 1997, a New York police officer sustained work-relatedinjuries while at the scene of a car accident when he slipped onicy pavement and fell, suffering injuries to his lower back andright hip. He put in a claim for workers' compensation benefits andwas ultimately classified with a permanent partial disability. InAugust 2017, the officer's treating physician filed a form torequest authorization to treat chronic pain with medical marijuana.The workers' compensation carrier denied the request. The claimantfiled a form seeking a review of the denial of the request. AWorkers' Compensation Law Judge considered the submission ofadditional medical evidence and approved the request forcausally-related medical marijuana treatment. The decision wasreversed when the Workers' Compensation Board found that it couldnot approve a variance for treatment that had already beenrendered. The claimant filed an appeal.

A variance is a treating doctor's request for authorization ofmedical care that varies from the Medical Treatment Guidelines, andthe burden of proof is on the doctor to establish that a varianceis appropriate and medically necessary.

On appeal, the court agreed that treatment that had already beenrendered should not be covered, but remanded the issue back to alower court to allow for the consideration of future medical marijuana treatment.

Editor's Note: Medical marijuana becamelegal in New York in 2016, and although it has expanded over thelast three years, it is an unusually restrictive medical marijuanalaw. The decision above did not solely have to do with the factthat the doctor wanted to prescribe medicinal marijuana, whichdeviated from the Medical Treatment Guidelines, but also becausethe doctor had already provided the care. Had the Board addressedthe merits of the variance request prior to administration of thecare, the variance would likely have been approved.

The case is In the Matter of the Claim of James Kluge, v.Town of Tonawanda et al., Workers Compensation Board, 2019NY Slip Op 07470 (App. Div.)

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• What employers need to know about the U.S.'sevolving marijuana laws
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• Pros and cons of medical marijuana in workers'compensation