In Matter of Barretta v Pal Envtl. Safety, 2022 NY Slip Op 04598 (N.Y. App. Div. 3d Dep't July 14, 2022), the employer and insurance carrier appealed a decision by a Workers' Compensation Law Judge, which was affirmed by the Workers' Compensation Board (“Board”), granting the claimant’s doctor’s request for a variance in order to treat the claimant with medical marijuana. 

‍

Coverage of medical marijuana expenses is not preempted by federal law 

The New York Appellate Division, Third Department, explained that it previously held that coverage for a claimant's medical marijuana expenses under New York’s medical marijuana law is not preempted by federal law. 

‍

The claimant’s treating medical provider has the burden of establishing substantial evidence for the variance 

When warranted, a treating medical provider may seek a variance from the Board's Medical Treatment Guidelines for authorization to utilize medical marijuana. The claimant's treating medical provider has the burden of establishing the propriety and medical necessity of the variance.

‍

There was substantial evidence for the Board’s decision to grant the variance

In New York, medical marijuana is authorized for the treatment of chronic pain. In this case, the record showed that the claimant suffered from persistent debilitating pain and had explored numerous treatment options with limited success. The claimant's treating physician noted that the claimant had previously used medical marijuana and that it helped his pain and function. Additionally, the physician explained that the plan was to address the claimant’s chronic pain issues and decrease opiate use in the future. The Court found that these factors provided substantial evidence for the Board’s decision to grant the variance. 

‍

Disposition

The Court affirmed the decision of the Board.