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Maine Supreme Court Deciding Whether Employers Should Pay For Injured Workers’ Medical Marijuana

Damian Dovarganes
Associated Press
In this May 14, 2013, file photo, medical marijuana prescription vials are filled at a medical marijuana dispensary in Venice, California.

The Maine Supreme Court is considering a first-of-its-kind case in Maine: whether an employer or insurer should be forced to pay for an injured worker’s medical marijuana.

Gaeton Bourgoin said it’s the only treatment that relieves his chronic pain. An administrative law judge took his side in the case. But his employer appealed. At issue is whether medical marijuana is a “reasonable and proper form of treatment.”

Bourgoin’s pain began in 1989 when he injured his back while lifting a heavy door at what was then Fraser Paper. He was eventually awarded total incapacity benefits. After years of consulting pain specialists, visiting clinics around the country and suffering what his attorney said were significant side effects from multiple, powerful painkillers, Bourgoin finally found something that eased his symptoms: medical marijuana.

But his former employer, now Twin Rivers Paper Co., doesn’t want to pay for it.

“This is not a case about making judgment over whether someone should or should not use marijuana as a matter of personal choice,” said Anne-Marie Storey, an attorney for Twin Rivers.

Storey told the Maine Supreme Court her client shouldn’t be ordered to reimburse Bourgoin for his medical marijuana as long as it’s classified as a Schedule 1 drug under the federal Controlled Substances Act.

“As such it’s defined as having no currently accepted medical use and a high potential for abuse,” she said.

Storey pointed to the opinion of an independent medical evaluator hired by the Maine Workers Compensation Board to review the case, who noted that voter authorization of the use of medical marijuana in states like Maine does not establish an accepted medical treatment under federal law. She said there’s also a lack of evidence that it’s safe and effective.

For these and other reasons the evaluator concluded that Bourgoin’s medicine was not a “reasonable and proper form of treatment” under the Maine Workers Compensation Act.

But Chief Justice Leigh Saufley pressed Storey on that point.

“Are we not, given the fact that you’ve just presented, also looking at the medical community’s extraordinary concern about opioids and addictions that have followed opioids?” Saufley said.

“That goes back to marijuana is still classified as a Schedule 1 drug and so that is, obviously, one primary concern,” Storey said.

“That’s because [of] the big drug companies,” said Justice Donald Alexander, interrupting.

From his seat on the bench, Alexander noted that big drug companies that manufacture opioids like oxycodone have successfully lobbied Congress to keep the status quo, even though Alexander said marijuana is a less dangerous drug.

“In this case the facts pretty well demonstrate that it’s a valuable alternative for this man who otherwise has severe reactions to taking the opioid narcotic drugs,” he said.

To that point, attorney Norman Trask, who represents Bourgoin, said his client was evaluated at the Mayo Clinic, where doctors determined he developed a narcotic dependence. Trask said Bourgoin nearly died from using opioids in ever increasing doses to ease his pain.

But Justice Ellen Gorman asked Trask to explain why his client’s treatment should be reimbursed if there’s no determination in Maine law that it has a medical use.

“How can you then say that as a matter of law it could be deemed ‘medically reasonable?’” she said.

“Because we have medical practitioners recommending and, if not prescribing per se, certifying that someone is a suitable candidate for this medication based on DHHS criteria,” Trask said.

The Maine Department of Health and Human Service criteria include conditions such as chronic pain and allow medical marijuana to be used to treat it.

Storey said her client remains concerned that covering the cost of the drug is a violation of federal law for which the company could be prosecuted. But when asked whether she knew of any cases, anywhere in the country, where a provider or an insurance company has been prosecuted for reimbursing or recommending medical marijuana as a treatment, Storey said she did not.