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  "id": 4241677,
  "name": "MIGUEL MAEZ, Worker-Appellant, v. RILEY INDUSTRIAL and CHARTIS, Employer/Insurer-Appellees",
  "name_abbreviation": "Maez v. Riley Industrial",
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  "casebody": {
    "judges": [
      "JAMES J. WECHSLER, Judge",
      "CYNTHIA A. FRY, Judge",
      "MICHAEL E. VIGIL, Judge"
    ],
    "parties": [
      "MIGUEL MAEZ, Worker-Appellant, v. RILEY INDUSTRIAL and CHARTIS, Employer/Insurer-Appellees."
    ],
    "opinions": [
      {
        "text": "OPINION\nWECHSLER, Judge.\nIn Vialpando v. Ben\u2019s Automotive Services, 2014-NMCA-084, \u00b6 1, 331 P.3d 975, cert. denied, 331 P.3d 924 (2014), this Court held that the Workers\u2019 Compensation Act, NMSA 1978, \u00a7\u00a7 52-1-1 to -70 (1929, as amended through 2013), authorizes reimbursement for medical marijuana used pursuant to the Lynn and Erin Compassionate Use Act (Compassionate Use Act), NMSA 1978, \u00a7\u00a7 26-2B-1 to -7 (2007). The workers\u2019 compensation judge in Vialpando had found that the worker was qualified to participate in the Department of Health Medical Cannabis Program authorized by the Compassionate Use Act and that such treatment would be reasonable and necessary medical care. 2014-NMCA-084, \u00b6 1.\nIn this appeal, the workers\u2019 compensation judge (WCJ) found that the worker\u2019s authorized treating health care provider (HCP) did not prescribe medical marijuana and concluded that medical marijuana was not reasonable and necessary medical care. Worker Miguel Maez argues that the WCJ erred in this conclusion because Worker had proven that medical marijuana was reasonable and necessary medical care, particularly based on the evidence that the HCP\u2019s treatment plan for Worker included medical marijuana, and the HCP and another doctor had certified Worker\u2019s use of medical marijuana as required by the Compassionate Use Act.\nBecause there is not substantial evidence supporting the WCJ\u2019s conclusion that medical marijuana was not reasonable and necessary medical care for Worker, we reverse the WCJ\u2019s compensation order.\nI. BACKGROUND\nWorker suffered two compensable injuries to his lumbar spine in the course and scope of his employment with Riley Industrial on February 14, 2011 and March 4, 2011. Riley Industrial was insured by Chartis (both referred to as Employer herein). Worker was entitled to payment of temporary disability until the date of maximum medical improvement and permanent partial disability thereafter based on a seven percent whole body impairment for the balance of the 500-week benefit period. He was also entitled to ongoing reasonable and necessary medical care. His authorized HCP was Dr. Anthony Reeve.\nThe WCJ found that \u201cDr. Reeve did not prescribe medical marijuana to Worker\u201d and concluded that \u201c[mjedical marijuana is not reasonable and necessary medical care from an authorized HCP\u201d that would require payment by Employer. Worker appeals from the WCJ\u2019s compensation order to the extent that the WCJ did not award medical benefits for Worker\u2019s use of medical marijuana for pain management.\nII. REASONABLE AND NECESSARY MEDICAL CARE\nA. Issue on Appeal\nOn appeal, Worker initially makes arguments concerning the interrelationship of the Workers\u2019 Compensation Act and the Compassionate Use Act that are similar to those we decided in Vialpando, In Vialpando, filed after Worker filed his brief-in-chief in this case, we determined that medical marijuana treatment approved under the Compassionate Use Act that the W CJ found to be reasonable and necessary medical care qualifies for reimbursement under the Workers\u2019 Compensation Act. Vialpando, 2014-NMCA-084, \u00b6 1.\nThe WCJ in this case did not find Worker\u2019s medical marijuana treatment to be reasonable and necessary medical care. To the contrary, the WCJ specifically concluded that \u201c[mjedical marijuana is not reasonable and necessary medical care from an authorized HCP.\u201d Worker argues that the WCJ erred in reaching this conclusion because the evidence indicated that medical marijuana is reasonable care for Worker\u2019s chronic low back pain and because- the WCJ incorrectly found that medical marijuana was not \u201cprescribed\u201d by Dr. Reeve.\nThe Workers\u2019 Compensation Actrequires an employer to provide a worker \u201creasonable and necessary health care services from a health care provider.\u201d Section 52-1-49(A). Conversely, an employer need not provide a worker with health care that is not reasonable and necessary. See Vargas v. City of Albuquerque, 1993-NMCA-136, \u00b6 8, 116 N.M. 664, 866 P.2d 392 (\u201c[T]he employer\u2019s obligation is limited by Section 52-1-49(A) to paying for \u2018reasonable and necessary\u2019 health care services\u201d). Thus, the pivotal question in Worker\u2019s appeal is whether the evidence supports the WCJ\u2019s conclusion that medical marijuana was not reasonable and necessary medical care.\nB. Standard of Review\nWe address this question under a whole record standard of review by determining whether substantial evidence in the record as a whole supports the WCJ\u2019s conclusion. Dewitt v. Rent-A-Center, Inc., 2009-NMSC-032, \u00b6 12, 146 N.M. 453, 212 P.3d 341. Substantial evidence is credible evidence in light of the whole record \u201cthat is sufficient for a reasonable mind to accept as adequate to support the conclusion}.]\u201d Id. (internal quotation marks and citation omitted). We give deference to the WCJ as factfinder and view the evidence in the light most favorable to the decision without disregarding contravening evidence. Id.\nWhile we generally may not weigh the evidence, even under whole record review, such review \u201callows the reviewing court greater latitude to determine whether a finding of fact was reasonable based on the evidence^]\u201d Herman v. Miners\u2019 Hosp., 1991-NMSC-021, \u00b6 10, 111 N.M. 550, 807 P.2d 734. Moreover, our review has even greater latitude when reviewing an issue for which the evidence is documentary in nature. As in this case, when \u201call or substantially all of the evidence on a material issue is documentary or by deposition,\u201d an appellate court may \u201cexamine and weigh it[.]\u201d United Nuclear Corp. v. Gen. Atomic Co., 1979-NMSC-036, \u00b6 62, 93 N.M. 105, 597 P.2d 290 (internal quotation marks and citation omitted). In review for substantial evidence of such a record from a district court proceeding, the appellate court must then give \u201csome weight to the findings of the trial judge on such issue\u201d and not disturb such findings based on conflicting evidence \u201cunless such findings are manifestly wrong or clearly opposed to the evidence.\u201d Id. (internal quotation marks and citation omitted). In this case, in which we are applying whole record review, we must similarly give weight to the WCJ\u2019s findings and consider contravening evidence. Dewitt, 2009-NMSC-032, \u00b6 12. Following United Nuclear, we will not disturb the WCJ\u2019s findings unless they are manifestly wrong or clearly opposed to the evidence. 1979-NMSC-036. \u00b6 69.\nWe apply a de novo standard to the WCJ\u2019s application of law to the facts. Vialpando, 2014-NMCA-084, \u00b6 5.\nC. Review of the Evidence\nDr. Reeve provided the evidence concerning the issue of whether medical marijuana constituted reasonable and necessary medical care. He testified by deposition. He made detailed medical reports of each of Worker\u2019s visits, and the reports were included as exhibits to his deposition.\nDr. Reeve began treating Worker on June 13, 2011. He testified that his diagnosis of Worker included chronic back pain and that he treated Worker with medication for pain management. Over the course of Worker\u2019s treatment, Dr. Reeve had injected Worker with Toradol and had prescribed Soma, Ultram, Sprix, Percocet, Lortab (oxycodone), and hydrocodone for Worker\u2019s pain. Dr. Reeve also referred Worker to another doctor for spinal injections. During one test required for pain management patients, Worker tested positive for marijuana. Dr. Reeve informed Worker that if Worker was going to take marijuana, he needed to have a license for Dr. Reeve to continue administering other narcotics, and further, even if Worker had a license, he would probably consider only additional nonnarcotic pain medication.\nOn February 28, 2012, Dr. Reeve first saw Worker for a medical marijuana evaluation, In his medical report, Dr. Reeve states that Worker has had spinal injections and chronic pain management and that Worker \u201chas failed traditional pain management and is a candidate for the cannabis program.\u201d At that time, Dr. Reeve was treating Worker with hydrocodone. His report concludes with the following:\nIMPRESSION\n1. Lumbar radiculopathy.\n2. Chronic low back pain.\n3. Failed traditional management.\nREHABILITATION MANAGEMENT AND SUGGESTIONS\nI have reviewed the records and examined the patient. The history, radiographic and physical findings are consistent at this time. I will recommend authorization of medical marijuana as a trial. Authorization is good for one year and the patient will need to show symptomatic .progress upon reauthorization.\nTREATMENT PLAN\nAuthorization for medical marijuana for one year.\nDr. Reeve re-authorized Worker for the medical marijuana program after an evaluation on April 3, 2013. Similarly, Dr. Reeve again stated in his report that Worker had \u201cfailed traditional pain management and is a candidate for the cannabis program.\u201d He stated the same \u201cIMPRESSION\u201d and \u201cREHABILITATION MANAGEMENT AND SUGGESTIONS\u201d as he had on February 28, 2012. His \u201cTREATMENT PLAN\u201d stated \u201cReauthorization for medical marijuana for one year.\u201d\nThe CompassionateUse Actrequires for enrollment that \u201ca person licensed in New Mexico to prescribe and administer drugs that are subject to the Controlled Substances Act\u201d provide a \u201cwritten certification\u201d that \u201cthe patient has a debilitating medical condition\u201d and that the person certifying \u201cbelieves that the potential health benefits of the medical use of cannabis would likely outweigh the health risks for the patient.\u201d Section 26-2B-3(E), (H). Dr. Reeve signed the certification for Worker to qualify for the Compassionate Use Act medical marijuana program. The original certification is not part of the record on appeal. Dr. Reeve also signed the certification re-enrolling Worker in the program. In that certification, in addition to the statutory requirements stated above, Dr. Reeve further certified that W orker \u201chas current unrelieved symptoms that have failed other medical therapies.\u201d\nAt his deposition, Dr. Reeve was asked: \u201cAnd because you signed for [medical marijuana], do you believe that it is an appropriate medical treatment for [Worker\u2019s] herniated disk?\u201d Dr. Reeve responded:\nWell, I think I need to be really clear on this issue. What happens is patients are going to use the cannabis [marijuana] either one way or the other. He already tested positive for it. And so I explain to patients, \u201cIf you\u2019re going to use cannabis, you should probably have a license for it because people will suspect you of using it ultimately, and you can always pass a preemployment screen or other tests if you have a license for it.\u201d And if patients request that I sign it, I will sign for them, but I\u2019m not recommending or distributing or in any way advocating for the use of medical cannabis.\n1. Necessity of a Prescription\nWorker contends that the WCJ erred in his conclusion that medical\u2019 marijuana does not constitute reasonable and necessary medical care because Dr. Reeve did not \u201cprescribe\u201d medical marijuana for Worker. The WCJ found that Dr. Reeve did not prescribe medical marijuana to Worker and further found that \u201cEmployer is not liable for the purchase of medical marijuana based on the fact that the medical marijuana is not being prescribed by the authorized HCP, Dr. Reeve.\u201d The Workers\u2019 Compensation Administration regulations adopted pursuant to NMSA 1978, Section 52-4-5 (1993) and NMSA 1978, Section 52-5-4 (2003) applicable at the time Worker filed his application defined \u201cprescription drug\u201d as a drug requiring \u201ca written order from an authorized HCP for dispensing by a licensed pharmacist or authorized HCP.\u201d 11.4.7.7(0 O) NMAC (12/31/2011). But, as we stated in Vialpando, medical marijuana is not a prescription drag. 2014-NMCA-084, \u00b6 11. Moreover, as we further stated in Vialpando, the certification required under the Compassionate Use Act by a person licensed in New Mexico to prescribe and administer controlled substances is the functional equivalent of a prescription. Id. \u00b6 12; see \u00a7 26-2B-3(E), (H). We thus agree with Worker that the fact that Dr. Reeve did not provide Worker a prescription as defined in the regulations does not support the WCJ\u2019s conclusion that medical marijuana was not reasonable and necessary medical care for W orker.\n2. Conclusion Regarding Reasonable Medical Care\nAs we have stated, to the extent that the WCJ based his conclusion that medical marijuana was not reasonable and necessary medical care on his finding that Dr. Reeve did not prescribe medical marijuana for Worker, the WCJ\u2019s conclusion is based on a faulty premise. Employer argues that the evidence in the record nevertheless supports the WCJ\u2019s conclusion. We therefore turn to the other evidence to determine whether it supports the conclusion that medical marijuana was not reasonable and necessary medical care for W orker.\nWe discuss the two aspects of the WCJ\u2019s conclusion separately. With regard to whether medical marijuana was reasonable medical care for Worker, we have little difficulty concluding that the evidence as a whole does not support the WCJ\u2019s conclusion. Regardless of whether Worker requested treatment with medical marijuana, Dr. Reeve had treated Worker with traditional pain management that had failed. He adopted a treatment plan based on medical marijuana. He would not have done so if it were an unreasonable medical treatment. The evidence does not support a conclusion that Dr. Reeve did not believe medical marijuana to be a reasonable treatment for Worker.\n3. Conclusion Regarding Necessary Medical Care\nThe aspect concerning necessary medical care is more difficult. Dr. Reeve did not testify that the medical marijuana treatment was necessary for Worker\u2019s care. Rather, when asked in his deposition whether he believed it was appropriate medical treatment because he had signed for it, Dr. Reeve stated that Worker was using marijuana, that such patients need a license for such use, and that he will sign for them if he is requested. He specified that in doing so he was not recommending marijuana us\u00e9. He also considered the medical marijuana program to be a patient\u2019s decision \u201cas it\u2019s private and voluntary and it\u2019s not overseen by a physician.\u201d\nThe WC J decided from this evidence that medical marijuana was not necessary medical care for Worker. The question before us is whether there was substantial evidence for the WCJ to reach this conclusion. Under our standard of review, we must defer to the finder of fact and view the evidence in the most favorable light to the decision without disregarding contravening evidence.\nWorker had the burden to establish that medical marijuana was a necessary medical treatment. See DiMatteo v. Do\u00f1a Ana Cnty., 1985-NMCA-099, \u00b6 26, 104 N.M. 599, 725 P.2d 575 (stating under previous version of Workers\u2019 Compensation Act that the worker had the burden of proving that his medical expenses were reasonably necessary). The evidence indicates that Dr. Reeve considered traditional pain management to have failed and planned to treat Worker with medical marijuana. Dr. Reeve also testified, however, that medical marijuana treatment is a patient\u2019s decision and that he will adopt it on a patient\u2019s request. The question before us distills to whether, considering all the evidence, the WCJ could reasonably have concluded that medical marijuana was not necessary medical care because Dr. Reeve merely acceded to Worker\u2019s choice and adopted medical marijuana as his treatment plan because Worker had begun to use it on his own.\nWe begin with the contravening evidence. Dr. Reeve\u2019s medical reports clearly state that he had treated Worker with traditional pain management and that such treatment had failed. The medical reports further state that Dr. Reeve was adopting medical marijuana as his treatment plan and would recommend its use for Worker. Dr. Reeve did so, certifying in Worker\u2019s re-enrollment form that Worker had \u201cunrelieved symptoms that have failed other medical therapies.\u201d We consider this evidence to clearly establish that medical marijuana was necessary for Worker\u2019s treatment because (1) traditional pain management had failed and (2) it would not be possible for Dr. Reeve to institute or carry out his treatment plan without medical marijuana.\nTo support the WCJ\u2019s conclusion and to consider the evidence in the light most favorable to the WCJ\u2019s conclusion, we must be able to infer from Dr. Reeve\u2019s deposition testimony, as argued by Employer, that medical marijuana treatment was entirely Worker\u2019s choice and that Dr. Reeve certified Worker for the medical marijuana program only because Worker intended to use it regardless and asked Dr. Reeve for the certification. In this regard, Dr. Reeve testified that Worker had tested positive for marijuana, that patients use marijuana \u201ceither one way or the other[,]\u201d and that he will sign for patients if requested. He further stated that he was \u201cnot recommending or distributing or in any way advocating for the use of medical cannabis.\u201d\nBut, even reading this evidence in the light most favorable to the WCJ\u2019s decision, we do not consider this testimony to be inconsistent with Dr. Reeve\u2019s medical records. There is no conflict in the evidence that Dr. Reeve addressed medical marijuana as a treatment for Worker because Worker had used marijuana and tested positive for it. Nor do we question that Dr. Reeve pursued medical marijuana as a treatment plan because Worker requested it. Dr. Reeve\u2019s testimony also indicates that, in adopting his treatment plan, he did not recommend medical marijuana to Worker or advocate its use. Dr. Reeve did not distribute medical marijuana to Worker. See Section 26-2B-4(E) (stating that a practitioner may not be subject to arrest, prosecution, or penalty for distributing medical marijuana under the Compassionate Use Act).\nWe must focus on the question at issue \u2014 whether medical marijuana was necessary medical care for Worker. The facts that Dr. Reeve did not initiate or recommend to Worker such care are not dispositive. Regardless of whether he took such action or was merely \u201cpassive,\u201d as Employer contends, Dr. Reeve adopted a treatment plan that called for medical marijuana. By-the very nature of such treatment, medical marijuana was a necessary component. Dr.- Reeve then recommended Worker for receipt of medical marijuana by his certification. He did so, even though at Worker\u2019s request, because traditional pain management was not successful for Worker.\nPerhaps most significantly, we cannot accept the contention, albeit implied, that Dr. Reeve would certify Worker for medical marijuana use solely on Worker\u2019s request regardless of whether it was appropriate for Worker\u2019s medical care. Marijuana is a controlled substance. The Compassionate Use Act makes an exception to the contraband use of marijuana only when necessary for medical treatment. See \u00a7 26-2B-2 (\u201cThe purpose of the [Compassionate Use Act] is to allow the beneficial use of medical cannabis in a regulated system for alleviating symptoms caused by debilitating medical conditions and their medical treatments.\u201d). Of course, a patient must wish to participate in the Compassionate Use Act program, but that law does not contemplate that individuals who wish to receive marijuana may do so merely upon request; it requires the certification by a professional. Nor does it contemplate that this professional certification will be issued in an irresponsible fashion. Dr. Reeve was familiar with the Compassionate Use Act program and testified that he was \u201cone of only two doctors that I know of in the state that will sign for the medical cannabis[.]\u201d We cannot infer from Dr. Reeve\u2019s testimony that he would certify Worker for the Compassionate Use Act program without exercising his medical judgment. Indeed, to the contrary, his medical records describe in detail the basis for his exercise of his medical judgment.\nWe additionally note that Dr. Reeve re-examined Worker on April 3, 2013 and reauthorized Worker for the Compassionate Use Act program. Dr. Reeve certified at that time that Worker continued to meet the eligibility requirements for the program and that Worker \u201chas current unrelieved symptoms that have failed other medical therapies.\u201d This certification underscores Worker\u2019s need for medical marijuana therapy.\nWe thus read the evidence in the record as a whole as failing to support and as clearly opposed to the WCJ\u2019s conclusion that medical marijuana was not reasonable and necessary medical care.\nIII. WORKER\u2019S REFUSAL OF REASONABLE AND NECESSARY MEDICAL CARE\nEmployer also argues that, if medical marijuana is reasonable and necessary medical care, Employer should not be responsible to reimburse it because Worker refused the reasonable and necessary medical care that Dr. Reeve was providing to him. We address this argument because, if Employer is correct, we could affirm the WCJ\u2019s compensation order because it is right for a reason that it does not address. See Davis v. Los Alamos Nat\u2019l Lab., 1989-NMCA-023, \u00b6 18, 108 N.M. 587, 775 P.2d 1304 (stating that we will affirm the decision of a workers\u2019 compensation order if it is right for any reason).\nHowever, we do not agree with Employer. Employer\u2019s argument is premised on its position that:\nIt was Worker\u2019s own choice, and not Dr. Reeve\u2019s professional judgment of what constituted reasonable and necessary care, that first motivated the medical use of marijuana. Dr. Reeve\u2019s rationale for signing for the medical cannabis was not that he wasn\u2019t providing reasonable and necessary care, but rather that Worker was going to use marijuana regardless of whether Worker was taking narcotic pain medication.\nAs we have discussed, however, the substantial evidence in the record as a whole does not support the proposition that Dr. Reeve certified Worker for medical marijuana treatment merely because Worker had made that choice. The record, which includes Dr. Reeve\u2019s medical reports, does not support a conclusion that traditional pain medication was the sole reasonable and necessary treatment, precluding any other. <\nIV. CONCLUSION\nSubstantial evidence in the record as a whole does not support the WCJ\u2019s conclusion that medical marijuana was not reasonable and necessary medical care. We therefore reverse the WCJ\u2019s compensation order.\nIT IS SO ORDERED.\nJAMES J. WECHSLER, Judge\nWE CONCUR:\nCYNTHIA A. FRY, Judge\nMICHAEL E. VIGIL, Judge",
        "type": "majority",
        "author": "WECHSLER, Judge."
      }
    ],
    "attorneys": [
      "Titus & Murphy Law Firm Victor A. Titus Farmington, NM for Appellant",
      "Hoffman Kelley Lopez LLP Lori A. Martinez Albuquerque, NM for Appellees"
    ],
    "corrections": "",
    "head_matter": "IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO\nOpinion Number: 2015-NMCA-049\nFiling Date: January 13, 2015\nDocket No. 33,154\nMIGUEL MAEZ, Worker-Appellant, v. RILEY INDUSTRIAL and CHARTIS, Employer/Insurer-Appellees.\nTitus & Murphy Law Firm Victor A. Titus Farmington, NM for Appellant\nHoffman Kelley Lopez LLP Lori A. Martinez Albuquerque, NM for Appellees"
  },
  "file_name": "0678-01",
  "first_page_order": 694,
  "last_page_order": 701
}
