A New York court has ruled that the state's workers' compensation board must consider a request by a disabled police officer to be allowed to use medical marijuana for the ongoing treatment of his chronic pain condition.
The Case
James Kluge, a police officer for the upstate New York town of Tonawanda, was injured in 1997 while working at the scene of a motor vehicle accident when he slipped on icy pavement and fell to the ground. His subsequent claim for workers' compensation benefits was established for injuries to his lower back and right hip, and he ultimately was classified with a permanent partial disability.
In August 2017, Mr. Kluge's treating physician requested a variance from the medical treatment guidelines. In particular, Mr. Kluge's treating physician sought authorization to use medical marijuana to treat the chronic pain that Mr. Kluge was experiencing from his work-related injuries.
The town's workers' compensation carrier denied the request.
Following a hearing and submission of additional medical evidence from Mr. Kluge's treating medical provider, a workers' compensation law judge ("WCLJ") approved the request for a variance from the medical treatment guidelines to permit causally-related medical marijuana treatment.
The workers' compensation board reversed that decision, finding that it could not approve a variance for treatment already rendered, and Mr. Kluge went to court.
The Court's Decision
The court reversed.
In its decision, the court explained that, generally, the burden of proof to establish that a variance was appropriate for a claimant and medically necessary rested on the treating medical provider requesting the variance. The court added that, under applicable workers' compensation regulations, such a variance must be requested and granted before medical care that varies from the medical treatment guidelines is provided to the claimant – and that a request for a variance would not be considered if the medical care already had been provided.
In other words, the court continued, an insurance carrier may deny a request for a variance submitted after medical care had been rendered on the basis that it had not been requested before the medical care was provided.
In this case, the court pointed out, the August 2017 variance request from Mr. Kluge's treating medical provider attached a July 2017 medical report in which the provider summarized Mr. Kluge's pain management regimen and reviewed the various beneficial effects of the medical marijuana that he had received. The court noted that the provider reported, among other things, that Mr. Kluge's sleep had improved, that his pain had reduced since using medical marijuana, that medical marijuana "allowed him to participate more with his wife and children," and that he "[e]motionally fe[lt] much improved" as a result of using medical marijuana. In addition, the court continued, the treating medical provider also noted that he was experiencing a "[f]inancial burden with continuing an optimal dose of the medical THC."
The court then held that the board had properly denied the variance request for medical care – but only to the extent that such care already had been provided. It also ruled that because Mr. Kluge had a chronic pain condition necessitating ongoing treatment, the board should have addressed the merits of Mr. Kluge's variance request for prospective medical marijuana treatment.
Accordingly, the court remitted the dispute to the board for consideration in the first instance of Mr. Kluge's variance request for prospective treatment.
The case is Matter of Kluge v. Town of Tonawanda, No. 528044 (N.Y. App. Div. 3d Dep't Oct. 17, 2019). Attorneys involved include: Lewis & Lewis, PC, Buffalo (Emily L. Downing of counsel), for appellant. Hamberger & Weiss, Buffalo (Matthew M. Hoffman of counsel), for Town of Tonawanda and another, respondents.
Steven A. Meyerowitz
Steven A. Meyerowitz, a Harvard Law School graduate, is the founder and president of Meyerowitz Communications Inc., a law firm marketing communications consulting company. He may be contacted at [email protected].