October 28, 2019

The Supreme Court of New York, appellate division, ruled to remand an earlier decision that denied coverage of an injured police officer's medical marijuana for chronic pain that he suffers after a car accident. The case is In the Matter of the Claim of James Kluge, v. Town of Tonawanda et al., Workers Compensation Board, 2019 NY Slip Op 07470 (App. Div.)

In 1997 a New York police officer sustained work-related injuries while at the scene of a car accident when he slipped on icy pavement and fell down, suffering injuries to his lower back and right hip. He put in a claim for workers' compensation benefits and was ultimately classified with a permanent partial disability. In August 2017, the officer's treating physician filed a form to request authorization to treat the chronic pain with medical marijuana. The workers' compensation carrier denied the request. The claimant filed a form seeking review of the denial of the request. A Workers' Compensation Law Judge considered submission of additional medical evidence and approved the request for causally-related medical marijuana treatment. The decision was reversed when the Workers' Compensation Board found that it could not approve a variance for treatment that had already been rendered. The claimant filed an appeal.

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

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

Editor's Note: Medical marijuana became legal in New York in 2016, and although it has expanded over the last three years, it is an unusually restrictive medical marijuana law. The decision above did not solely have to do with the fact that the doctor wanted to prescribe medicinal marijuana which deviated from the Medical Treatment Guidelines, but also because the doctor had already provided the care. Had the Board addressed the merits of the variance request prior to administration of the care, the variance would likely had been approved.

Special Reports /

Town Might Have to Cover Medicinal Marijuana in Workers' Compensation Case

Related Stories

Recommended For You