New Hampshire Supreme Court issues ruling on
Medical Marijuana reimbursement to an
injured employee

In a decision issued on March 2, 2021 (Appeal of Panaggio), the New Hampshire Supreme Court ruled that a court order for an insurer to reimburse an injured employee for his purchase of medical marijuana does not conflict with the federal Controlled Substances Act.
The insurer denied the reimbursement claim from the outset, arguing that such reimbursement would result in the insurer aiding and abetting the employee’s federal crimes of purchasing, possessing, and using marijuana, a Schedule I drug under the Controlled Substances Act. The Compensation Appeals Board agreed with the insurer’s arguments and denied the employee’s claim. On appeal, the Supreme Court unanimously reversed the CAB decision and remanded for further proceedings consistent with the Supreme Court’s decision.
The Court rejected the insurer’s federal preemption argument. The Court reasoned that the act of an insurer reimbursing the employee under a court order would not constitute a federal aiding and abetting crime because the insurer would not have the requisite criminal intent for aiding and abetting liability. The Court found that the insurer through a reimbursement scheme would only “incidentally facilitate” rather than “actively participate” in the criminal venture. In so finding, the Court agreed with the reasoning of the dissent in Bourgoin v. Twin Rivers Paper Co., 187 A.3d 10 (Me. 2018) (the Maine workers’ compensation marijuana case) and the majority in Hager v. M & K Const., 225 A.3d 137 (N.J. Super. Ct. App. Div.) (the New Jersey workers’ compensation marijuana case).
Under this new case law from the New Hampshire Supreme Court, reimbursement of medical marijuana purchases by injured employees is a legitimate claim under the New Hampshire workers’ compensation act. The Court remanded the case for further proceedings consistent with this decision, presumably for the CAB to issue an order of reimbursement. It must be noted that the Supreme Court’s reasoning requires a court order for reimbursement—an insurer that voluntarily chooses to reimburse an injured employee may still be criminally liable for aiding and abetting, since such a voluntary choice to reimburse would tend more towards “active participation” in the criminal venture. Under the Supreme Court’s reasoning, it is the court order to reimburse that removes the criminal intent on the part of the insurer. Therefore, claims for medical marijuana reimbursement should continue to be denied and litigated.

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