{ "id": 4362880, "name": "SANDRA LEWIS, Worker-Appellee, v. AMERICAN GENERAL MEDIA and GALLAGHER BASSETT, Employer/Insurer-Appellant", "name_abbreviation": "Lewis v. American General Media", "decision_date": "2015-06-26", "docket_number": "Docket No. 33,236", "first_page": "454", "last_page": "463", "citations": [ { "type": "official", "cite": "2015-NMCA-090" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "18 U.S.C. \u00a7 2", "category": "laws:leg_statute", "reporter": "U.S.C.", "year": 2012, "pin_cites": [ { "page": "(a)", "parenthetical": "\"Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.\"" } ], "opinion_index": 0 }, { "cite": "21 U.S.C. \u00a7 846", "category": "laws:leg_statute", "reporter": "U.S.C.", "pin_cites": [ { "parenthetical": "prohibiting a person from attempting or conspiring to commit a violation of federal law related to controlled substances under 21 U.S.C., Chapter 13, Subchapter 1" } ], "opinion_index": 0 }, { "cite": "21 U.S.C. \u00a7\u00a7 801-904", "category": "laws:leg_statute", "reporter": "U.S.C.", "year": 2012, "opinion_index": 0 }, { "cite": "2002-NMCA-021", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 183142 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 5" } ], "opinion_index": 0, "case_paths": [ "/nm/131/0621-01" ] }, { "cite": "545 U.S. 1", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 8208788 ], "weight": 2, "year": 2005, "pin_cites": [ { "page": "27", "parenthetical": "stating that \"by characterizing marijuana as a Schedule I drug, Congress expressly found that the drug has no acceptable medical uses\"" }, { "page": "27", "parenthetical": "stating that the CSA \"designates marijuana as contraband for any purpose\"" } ], "opinion_index": 0, "case_paths": [ "/us/545/0001-01" ] }, { "cite": "21 U.S.C. \u00a7 812", "category": "laws:leg_statute", "reporter": "U.S.C.", "weight": 2, "year": 2012, "opinion_index": 0 }, { "cite": "106 N.M. 36", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 708474 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/106/0036-01" ] }, { "cite": "1987-NMCA-066", "category": "reporters:neutral", "reporter": "NMCA", "pin_cites": [ { "page": "\u00b6 28" } ], "opinion_index": 0 }, { "cite": "111 N.M. 550", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 715074 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/111/0550-01" ] }, { "cite": "1991-NMSC-021", "category": "reporters:neutral", "reporter": "NMSC", "pin_cites": [ { "page": "\u00b6 6" } ], "opinion_index": 0 }, { "cite": "2007-NMCA-128", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 3692438 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 10" } ], "opinion_index": 0, "case_paths": [ "/nm/142/0605-01" ] }, { "cite": "2009-NMSC-032", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4243724 ], "weight": 4, "pin_cites": [ { "page": "\u00b6 12" }, { "page": "\u00b6 12" } ], "opinion_index": 0, "case_paths": [ "/nm/146/0453-01" ] }, { "cite": "331 P.3d 992", "category": "reporters:state_regional", "reporter": "P.3d", "opinion_index": 0 }, { "cite": "2014-NMCA-082", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4239941 ], "pin_cites": [ { "page": "\u00b6 19" } ], "opinion_index": 0, "case_paths": [ "/nm-app/6/0459-01" ] }, { "cite": "104 N.M. 599", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1594901 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/104/0599-01" ] }, { "cite": "1985-NMCA-099", "category": "reporters:neutral", "reporter": "NMCA", "pin_cites": [ { "page": "\u00b6 26" } ], "opinion_index": 0 }, { "cite": "347 P.3d 732", "category": "reporters:state_regional", "reporter": "P.3d", "opinion_index": 0 }, { "cite": "2015-NMCA-049", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4241677 ], "weight": 2, "pin_cites": [ { "page": "\u00b6 29" } ], "opinion_index": 0, "case_paths": [ "/nm-app/7/0678-01" ] }, { "cite": "331 P.3d 924", "category": "reporters:state_regional", "reporter": "P.3d", "year": 2014, "opinion_index": 0 }, { "cite": "331 P.3d 975", "category": "reporters:state_regional", "reporter": "P.3d", "year": 2014, "opinion_index": 0 }, { "cite": "2014-NMCA-084", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4240019 ], "weight": 8, "year": 2014, "pin_cites": [ { "page": "\u00b6\u00b6 1, 16" }, { "page": "\u00b6 5" }, { "page": "\u00b6 12" }, { "page": "\u00b6 15" }, { "page": "\u00b6 16" }, { "page": "\u00b6 16" } ], "opinion_index": 0, "case_paths": [ "/nm-app/6/0470-01" ] } ], "analysis": { "cardinality": 1065, "char_count": 29573, "ocr_confidence": 0.757, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.14878280548402628 }, "sha256": "2fe2370f1027f803bba7a9ac23a7939c8715744c4bb02c0145f0660189e1b664", "simhash": "1:10e31c2cdfdc257d", "word_count": 4524 }, "last_updated": "2023-07-14T20:13:54.428467+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "JAMES J. WECHSLER, Judge", "WE CONCUR:", "RODERICK T. KENNEDY, Judge", "M. MONICA ZAMORA, Judge" ], "parties": [ "SANDRA LEWIS, Worker-Appellee, v. AMERICAN GENERAL MEDIA and GALLAGHER BASSETT, Employer/Insurer-Appellant." ], "opinions": [ { "text": "OPINION\nWECHSLER, Judge.\n{1} We are again called upon to address the application of the Workers\u2019 Compensation Act, NMSA 1978, \u00a7\u00a7 52-1-1 to -70 (1929, as amended through 2013), to a worker certified to receive treatment with medical marijuana under the Lynn and Erin Compassionate Use Act (Compassionate Use Act), NMSA 1978, \u00a7\u00a7 26-2B-1 to -7 (2007). In Vialpando v. Ben's Automotive Services, we held that the Workers\u2019 Compensation Act authorizes reimbursement for medical marijuana and declined to hold that federal law required a different result. 2014-NMCA-084, \u00b6\u00b6 1, 16, 331 P.3d 975, cert. denied, 331 P.3d 924 (2014). In Maez v. Riley Industrial, we considered the sufficiency of the evidence that supported reimbursement for medical marijuana for the worker in that case. 2015-NMCA-049, 347 P.3d 732.\n{2} In this case, Gallagher Bassett and its insurer American General Media (collectively, Employer) challenge the sufficiency of the evidence supporting the conclusions of the Workers\u2019 Compensation Judge (WCJ) that the use of medical marijuana by Worker Sandra Lewis constituted reasonable and necessary medical care that required reimbursement. Specifically, Employer argues that the evidence offered by Worker\u2019s authorized health care provider was insufficient and that the WCJ erred by relying on testimony from an unauthorized health care provider who had provided a certification for Worker\u2019s use of medical marijuana under the Compassionate Use Act. Employer further argues that the conflict between New Mexico and federal law concerning the use of medical marijuana precludes the validity of the amended compensation order in this case. We hold that the medical certification forms and notes of Worker\u2019s authorized health care provider were substantial evidence to support the WCJ\u2019s conclusion that Worker\u2019s use of medical marijuana constitutes reasonable and necessary medical care and that, as discussed in Vialpando, the conflict between New Mexico and federal law does not support failing to give recognition to the amended compensation order. We therefore affirm.\nBACKGROUND\n{3} Worker suffered a compensable, work-related injury to her lower back in December 1998. She underwent several surgical procedures and currently suffers from postlaminectomy syndrome in the lumbar region. She suffers chronic pain. Since her injury, Worker has taken numerous drugs as part of her pain management, including Oxycontin, oxycodone, Soma, Norflex, gabapentin, Lyrica, Percocet, fentanyl, and Zantac.\n{4} The issues concerning Worker\u2019s treatment began on April 16, 2012, when Employer filed an application requesting an independent medical examination (IME) in order to determine the scope of reasonable and necessary treatment for Worker\u2019s condition. In its application, Employer stated that Worker had been using medical marijuana and taking prescribed pain medication, which was inconsistent with Worker\u2019s belief that medical marijuana \u201cis now the most effective medication from all of her different treatment and she is concerned by potential side effects.\u201d The WCJ appointed Dr. Carl Adams, a psychologist, \u201cto address Worker\u2019s ongoing pain management and use of pain medications.\u201d Dr. Adams\u2019 recommendations, issued September 17, 2012, supported Worker\u2019s request to use medical marijuana to control her pain as reasonable and appropriate.\n{5} Worker was originally certified to participate in the New Mexico Department of Health Medical Cannabis Program (the program) on March 22, 2010. On July 31, 2012, Dr. Carlos Esparza, Worker\u2019s authorized health care provider, provided the written certification under the Compassionate Use Act for Worker to re-enroll in the program. As required by the Compassionate Use Act, Dr. Esparza certified that Worker had \u201cdebilitating\u201d medical conditions (painful peripheral neuropathy and severe chronic pain) and that Worker had \u201ccurrent unrelieved symptoms that have failed other medical therapies.\u201d Dr. Esparza stated that the \u201cbenefits of medical marijuana outweigh the risk of hyper doses of narcotic medications.\u201d\n{6} On May 30, 2013, Dr. Stephen I. Rosenberg, after a medical consultation as a second doctor required for certification of Worker\u2019s re-enrollment, also signed a certification form for Worker\u2019s re-enrollment in the program, listing Worker\u2019s condition as severe chronic pain and making essentially the same certifications as Dr. Esparza. On July 31, 2013, Joel Gelinas, a physician\u2019s assistant in Dr. Esparza\u2019s office, also signed a certification form for Worker\u2019s re-enrollment in the program. He listed Worker\u2019s condition as severe chronic pain and certified that Worker\u2019s condition was debilitating and that \u201cstandard treatments have failed to bring adequate relief.\u201d\n{7} After trial, conducted on August 8, 2013, the WCJ found that Worker\u2019s authorized health care provider was Dr. Esparza and physician\u2019s assistant Joel Gelinas and that \u201cthe office of Dr. Esparza\u201d had recommended Worker \u201cas a candidate for medical marijuana under the Compassionate Use Act.\u201d The WCJ concluded that Worker\u2019s use of medical marijuana under the program constituted reasonable and necessary medical care and required Employer to reimburse Worker for the receipts she submitted for her certified purchases. Employer filed this appeal.\nREASONABLE AND NECESSARY MEDICAL CARE\n{8} As its first main argument, Employer challenges the sufficiency of the evidence supporting the WCJ\u2019s conclusion that Worker\u2019s use ofmedical marijuana constituted reasonable and necessary medical care. Employer asserts this challenge in two ways, arguing that (1) \u201c[t]he record does not support [the WCJ\u2019s] finding that [W]orlcer was recommended as a candidate for medical marijuana under the [Compassionate [U]se [A]ct through the office of Dr. Esparza\u201d and (2) the WCJ \u201cwent outside\u201d the Workers\u2019 Compensation Act and interpreting case law \u201cto rely on testimony by an unauthorized provider\u201d to make its finding of reasonable and necessary care.\nTestimony of an Unauthorized Provider\n{9} We first address Employer\u2019s argument that the WCJ improperly relied on the testimony of an unauthorized health care provider in determining that Worker\u2019s use of medical marijuana constituted reasonable and necessary medical care. In this regard, Employer contends that because Worker needed the certification of two health care professionals to be able to use medical marijuana under the Compassionate Use Act, the WC J necessarily relied on the certification of Dr. Rosenberg in the WCJ\u2019s determination of the necessity of medical marijuana care. Thus, according to Employer, the WCJ improperly considered the certification of Dr. Rosenberg who was not qualified to present testimony under the Workers\u2019 Compensation Act because he was neither Worker\u2019s authorized health care provider nor a health care provider authorized to perform an IME. See \u00a7 52-1-51(C) (\u201cOnly a health care provider who has treated the worker... or the health care provider providing the independent medical examination . . . may offer testimony at any workers\u2019 compensation hearing concerning the particular injury in question.\u201d).\n{10} Employer\u2019s argument requires us to interpret the Workers\u2019 Compensation Act in connection with the Compassionate Use Act based on the facts of this case. We thus afford it de novo review. Vialpando, 2014-NMCA-084, \u00b6 5.\n{11} Employer\u2019s argument fatally interconnects the Workers\u2019 Compensation Act and the Compassionate Use Act. In order for a worker to qualify for medical care after a compensable injury under the Workers\u2019 Compensation Act, the care must be \u201creasonable and necessary\u201d care from a health care provider. Section 52-1-49(A). Typically, in the event of a dispute between a worker and an employer pertaining to the reasonableness or necessity of medical care, a worker will establish that care was reasonable and necessary through evidence provided by a health care provider. 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 Workers\u2019 Compensation Act restricts testimony in this regard to either a treating health care provider or an independent medical examiner. Section 52-1-51(C).\n{12} In order to qualify for medical marijuana under the Compassionate Use Act, \u201ca person licensed in New Mexico to prescribe and administer\u201d controlled substances must certify to the opinion that \u201cthe patient has a debilitating medical condition\u201d as defined in the Compassionate Use Act and \u201cthe 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). Regulations promulgated by the New Mexico Department of Health require two written certifications when the debilitating medical condition is, as for Worker, severe chronic pain: one from a primary health care provider and one from a \u201cspecialist with expertise in pain management or . . . expertise in the disease process that is causing the pain\u201d). 7.34.3.8(B)(1)(b) NMAC (12/30/2010).\n{13} However, no statutory or regulatory provision connects these requirements under the two separate statutory schemes. Practically, a worker first must be enrolled in the medical marijuana program under the Compassionate Use Act before any issue can arise under the Workers \u2019 Compensation Act as to whether medical marijuana use is reasonable and necessary care. But, otherwise, the two determinations are not dependent on each other; they are made separately, at different times, and by different administrative authorities. No express provision of the Workers\u2019 Compensation Act grants a WCJ the authority to review a Department of Health enrollment determination. See Jones v. Holiday Inn Express, 2014-NMCA-082, \u00b6 19, 331 P.3d 992 (\u201cSince the [Workers\u2019 Compensation Administration] is a creature of the Legislature, [the Court] cannot expand the [Workers\u2019 Compensation Administration\u2019s] jurisdiction over matters unless the Legislature expressly granted the [Workers\u2019 Compensation Administration] jurisdiction or jurisdiction can be found by necessary implication.\u201d).\n{14} Thus, although the Department of Health requires that a person obtain two written certifications in order to be enrolled in the program and receive medical marijuana for severe chronic pain, the Workers\u2019 Compensation Act has no such quantitative requirements for a WCJ to determine that medical care is reasonable and necessary. Indeed, the Workers\u2019 Compensation Act contemplates that fewer, rather than more, professionals will provide input by restricting testimony to treating providers and independent medical examiners. Section 52-1 - 51(C). Nor does the Workers\u2019 Compensation Act require, as Employer urges, that a WCJ make a determination that a worker enrolled in the Medical Cannabis Program was properly eligible for medical marijuana use. The Compassionate Use Act and its associated regulations control the manner in which that determination is made, and the Department of Health bears the responsibility of approving applications for enrollment in the Medical Cannabis Program. See \u00a7 26-2B-7(G) (providing that the Department of Health shall issue registry identification cards for the Medical Cannabis Program to patients who submit applications in accordance with the Department\u2019s rules); see also 7.34.3.7(JJ) (12/30/2010) (defining \u201cregistry identification card\u201d as \u201ca document issued by the department which identifies a qualified patient authorized to engage in the use of cannabis for a debilitating medical condition\u201d (internal quotation marks omitted)). All that is required by the Workers Compensation Act is that the WCJ determine, based on evidence from one or more authorized health care providers, whether a worker\u2019s medical treatment for a work injury is reasonable and necessary. Section 52-1-51.\n{15} The facts of this case are illustrative. Dr. Esparza and Joel Gelinas were Worker\u2019s authorized health care provider. The evidence included their certifications for Worker\u2019s participation in the Medical Cannabis Program and use of medical marijuana as well as their related medical notes. Dr. Rosenberg, who was not an authorized health care provider under the Workers\u2019 Compensation Act, also submitted a written certification in support of Worker\u2019s enrollment in the program. See \u00a7 52-1-49 (stating the manner for selection of an authorized health care provider).\n{16} Although Dr. Rosenberg\u2019s certification may have been necessary for Worker\u2019s enrollment in the program, it was unnecessary evidence to establish the reasonableness and necessity of Worker\u2019s medical care because Dr. Rosenberg was not an authorized health care provider. Thus, Employer argues that Worker\u2019s medical marijuana treatment could not be considered medically necessary because the WCJ could not consider the certification of Dr. Rosenberg as an unauthorized health care provider in meeting the eligibility requirements of the Compassionate Use Act. However, even though the administrative regulations promulgated by the Department of Health pursuant to the Compassionate Use Act may require more than one certification for the condition of severe chronic pain, nothing in the Workers\u2019 Compensation Act requires evidence from more than one health care provider in order to establish the reasonableness and necessity of medical care. Worker was enrolled in the Medical Cannabis Program; it was not the role of the WCJ to second-guess that determination, and the issue is not before us. In this regard, the only pertinent issue in this appeal is whether Worker presented substantial evidence to the WCJ for the WCJ to determine that medical marijuana use was reasonable and necessary medical care.\nSufficiency of the Evidence\n{17} We thus turn to whether substantial evidence supported the WCJ\u2019s conclusion, taking into account Employer\u2019s arguments concerning the receipt in evidence of Dr. Rosenberg\u2019s certification. We review for substantive evidence under a whole record standard of review. Dewitt v. Rent-A-Center, Inc., 2009-NMSC-032, \u00b6 12, 146 N.M. 453, 212 P.3d 341. \u201cWhole record review contemplates a canvass by the reviewing court of all the evidence bearing on a finding or decision, favorable and unfavorable, in order to determine if there is substantial evidence to support the result.\u201d Leonard v. Payday Prof\u2019l, 2007-NMCA-128, \u00b6 10, 142 N.M. 605, 168 P.3d 177 (alteration, internal quotation marks, and citation omitted). Substantial evidence is evidence that demonstrates \u201cthe reasonableness of an agency\u2019s decision, and we neither reweigh the evidence nor replace the fact finder\u2019s conclusions with our own.\u201d Dewitt, 2009-NMSC-032, \u00b6 12 (citation omitted). We give deference to the factfinder and will not disturb the WCJ\u2019s findings on appeal if they are supported by substantial evidence on the record as a whole. Herman v. Miners' Hosp., 1991-NMSC-021, \u00b6 6, 111 N.M. 550, 807 P.2d 734.\n{18} The certification forms from both Dr. Esparza and Joel Gelinas stated that Worker suffered from severe chronic pain and that other treatment had not worked. Specifically, Dr. Esparza stated that the benefits of medical marijuana would \u201coutweigh the risk of hyper doses of narcotic medications.\u201d\n{19} Employer points to the medical notes of Dr. Esparza and Joel Gelinas and contends that they are equivocal statements and that the opinions expressed are not \u201cof medical reasonableness and necessity.\u201d Dr. Esparza\u2019s July 17, 2012 medical notes state that Worker informed him that she had reduced her use of prescribed medications because she had been using medical marijuana. Dr. Esparza stated that \u201cit would be reasonable for us to drop some of these narcotic medications in place of the medical marijuana if that is helping her. I would be happy to fill out her form for this.\u201d In Joel Gelinas\u2019 July 31, 2012 medical note, he observes that Worker stated that she needed a referral to her primary care doctor \u201cso that [her use of medical marijuana] could be associated with her work injury.\u201d Worker was concerned that she was \u201cusing the marijuana to medically control her pain, which is related to her workers\u2019 compensation injury.\u201d Joel Gelinas noted that he told Worker that he would discuss the request with Dr. Esparza but that \u201c[w]e generally do not refer patients to their primary care doctor for evaluation for a workers\u2019 compensation injury.\u201d\n{20} When considered as a whole, the medical certification forms and notes of Dr. Esparza and Joel Gelinas are substantial evidence supporting the WCJ\u2019s determination. The medical certification forms certify Worker for enrollment in the program and clearly state that other treatments, that included narcotic medications, have failed. The medical certification forms are the functional equivalents of prescriptions. Vialpando, 2014-NMCA-084, \u00b6 12. Further, Dr. Esparza expressly states in his note that \u201cit would be reasonable\u201d to replace some of Worker\u2019s narcotic medications if the medical marijuana was helping her and that he would be happy to complete her certification. We do not consider this language to be equivocal in view of Dr. Esparza\u2019s issuing the certification.\n{21} Joel Gelinas\u2019 medical note does not detract from his certification. The practice of Dr. Esparza\u2019s office, by which Dr. Esparza and Joel Gelinas would not refer Worker to her primary physician in order to link Worker\u2019s use of medical marijuana to her work injury, does not impact the determination of whether W orker\u2019s use of medical marijuana is reasonable and necessary medical care. Dr. Esparza and Joel Gelinas were Worker\u2019s authorized health care provider who medically treated Worker; they were under no obligation to assist Worker with her legal claim. We assume that they issued their certifications in the good faith medical belief that Worker\u2019s use of medical marijuana would benefit her medical treatment. Cf. Maez, 2015-NMCA-049, \u00b6 29 (holding that medical care was reasonable and necessary where the evidence did not support the inference that a health care provider failed to exercise medical judgment in certifying a worker for the Compassionate Use Act program). The fact that they did not refer Worker to her primary physician does not indicate that they did not have such a belief.\n{22} Employer also argues that Dr. Esparza \u201cwould not have prescribed a controlled substance to [Wjorker because it defies logic that a doctor holding a valid license would j eopardize himself or his patient by recommending illegal use of a controlled substance.\u201d According to Employer, Dr. Esparza\u2019s \u201cdiscomfort with recommending or prescribing medical marijuana is underscored by his refusal to provide [Wjorker with a referral to another doctor, even though she requested this referral.\u201d We are unpersuaded by this speculation. First, and significantly, Employer makes no reference to the record in support of his attributions to Dr. Esparza. See Rule 12-213(A)(4) NMRA (requiring an appellant to provide citations to the record proper in support of each argument); see also Fenner v. Fenner, 1987-NMCA-066, \u00b6 28, 106 N.M. 36, 738 P.2d 908 (holding that the Court need not consider arguments raised on appeal that are unsupported by record citations). Second, although federal law prohibits prescribing marijuana for medical use, the Compassionate Use Act specifically contemplates the use of medical marijuana in New Mexico as a form of medical treatment for certain conditions. 21 U.S.C. \u00a7 812 (2012); see Gonzales v. Raich, 545 U.S. 1, 27 (2005) (stating that \u201cby characterizing marijuana as a Schedule I drug, Congress expressly found that the drug has no acceptable medical uses\u201d); Sections 26-2B-2 to -7. Third, Joel Gelinas\u2019 note is much too unclear to reach a conclusion that Dr. Esparza had adopted any office policy regarding referral of patients to their primary care doctors \u201cfor evaluation of a workers\u2019 compensation injury\u201d because of any concern about medical marijuana.\n{23} We also do not believe that the testimony of Dr. Adams undercuts the WCJ\u2019s conclusion that medical marijuana constituted reasonable and necessary medical care. Dr. Adams, a psychologist, recommended in his IME report that he supported Worker\u2019s \u201crequest to begin medical cannabis use to control her pain\u201d and that \u201cher request seems reasonable and appropriate.\u201d In his deposition testimony, he again stated that he thought that medical marijuana was reasonable and advisable for treatment of Worker\u2019s pain. Although Dr. Adams did not state, as Employer contends, that \u201cWorker\u2019s use of medical marijuana was a medical necessity,\u201d the absence of such testimony does not demonstrate that the WCJ\u2019s conclusion is unsupported by substantial evidence based on the evidence as a whole.\nCONFLICT WITH FEDERAL LAW\n{24} Employer additionally argues that the WC J\u2019s order requiring it to reimburse Worker raises a conflict between federal and state law and that, with such conflict, the federal law preempts state law, rendering the WCJ\u2019s order without effect. This argument presents an issue of law that we review on a de novo basis. See Largo v. Atchison, Topeka & Santa Fe Ry. Co., 2002-NMCA-021, \u00b6 5, 131 N.M. 621, 41 P.3d 347 (stating that federal preemption is a question of law that the Court reviews de novo).\n{25} We agree with Employer that the Controlled Substances Act (CSA), 21 U.S.C. \u00a7\u00a7 801-904 (2012) conflicts with the Compassionate Use Act in that the CSA does not except marijuana used for medical purposes from its prohibition of possession or distribution of even small amounts of marijuana. 21 U.S.C. \u00a7\u00a7 812, 822, 823(f); Gonzales, 545 U.S. at 27 (stating that the CSA \u201cdesignates marijuana as contraband for any purpose\u201d). In Vialpando, we recognized that \u201cthe Supremacy Clause dictates that any conflict between the Compassionate Use Act and the CSA would be resolved in favor of the CSA.\u201d Vialpando, 2014-NMCA-084, \u00b6 15.\n{26} Nonetheless, we declined to reverse the WCJ\u2019s order in Vialpando based on either federal law or public policy, observing that the employer had not demonstrated that the order would have required it to violate a federal statute and that federal public policy was ambiguous in contrast with New Mexico\u2019s clear public policy expressed in the Compassionate Use Act. Id. \u00b6\u00b6 15-16. Employer would distinguish Vialpando on two grounds: (1) a second memorandum issued by the United States Department of Justice (Department of Justice) subsequent to the memorandum discussed in Vialpando indicates that.New Mexico law does not meet the standard contemplated by the Department of Justice; and (2) in contrast to Vialpando, Employer has identified the federal statute that would embrace Employer\u2019s activity in carrying out the WCJ\u2019s order.\n{27} As to the initial memorandum, in Vialpando we discussed the memorandum from James M. Cole, Deputy Attorney General, to All United States Attorneys, entitled Guidance Regarding Marijuana Enforcement, dated August 29, 2013. Vialpando, 2014-NMCA-084, \u00b6 16. We noted that the memorandum was not dispositive, but included \u201cequivocal statements about state laws allowing marijuana use for medical and even recreational purposes.\u201d Id. We observed that, although the memorandum affirmed that the CSA declared marijuana to be illegal and that federal prosecutors would continue to enforce the CSA, the memorandum identified eight areas of enforcement priority that did not include medical marijuana. Id. \u00b6 16 n.1. Beyond those priorities, the memorandum indicated that the Department of Justice \u201cwould generally defer to state and local authorities.\u201d Id. \u00b6 16.\n{28} According to Employer, the New Mexico statutory and regulatory scheme is not sufficient to satisfy Department of Justice requirements that justify deference to state law. Employer points to language in the second memorandum that indicates that the Department of Justice\u2019s position \u201crested on the expectation that states that have enacted laws authorizing marijuana-related conduct will implement clear, strong and effective regulatory and enforcement systems in order to minimize the threat posed to federal enforcement priorities.\u201d Memorandum from James M. Cole, Deputy Attorney General, to All United States Attorneys, Guidance Regarding Marijuana Financial Related Crimes (February 14, 2014).\n{29} More particularly, Employer argues that the Workers\u2019 Compensation Act and the Compassionate Use Act do not meet the standard set forth in the second memorandum. However, as we stated in Vialpando, the New Mexico Legislature adopted the Compassionate Use Act \u201cto allow the beneficial use of medical cannabis in a regulated system for alleviating symptoms caused by debilitating medical conditions and their medical treatments.\u201d 2014-NMCA-084, \u00b6 16 (quoting Section 26-2B-2 (internal quotation marks omitted)). It is not clear the manner in which any deficiency in this system is an issue in this case, and Employer\u2019s arguments in this regard are not specific.\n{30} Employer seems to fault the WCJ for failing to provide oversight for Worker\u2019s purchase and use of medical marijuana by failing to provide a mechanism by which Worker would be responsible for demonstrating her purchases are consistent with law or that would allow Employer to investigate \u201cthe legitimacy\u201d of Worker\u2019s purchases. But, the WCJ\u2019s amended compensation order requires Employer\u2019s reimbursement only upon Worker submitting timely receipts for medical marijuana \u201cpurchased consistent with law.\u201d Worker demonstrated that she was a certified participant in the medical marijuana program. If Employer is not satisfied that Worker is submitting \u201clegitimate\u201d receipts, Employer has recourse through the Workers\u2019 Compensation Act and the Workers\u2019 Compensation Administration. See NMSA 1978, \u00a7 52-10-1(A) (1990) (requiring that a health care provider release to an employer or employer\u2019s insurer, upon request, medical bills related to medical care service provided to a worker); see also NMSA 1978, \u00a7 52-5-1.3 (2013) (requiring the Workers\u2019 Compensation Administration\u2019s Enforcement Bureau to investigate fraudulent conduct concerning the payment of benefits to a worker).\n{31} To the extent that Employer argues that the New Mexico laws and regulations are not sufficient to obviate Employer\u2019s exposure to violation of federal law, its argument overlaps with the second aspect of its argument to distinguish Vialpando \u2014 that it has identified its continued federal exposure. According to Employer, if it were to follow the WCJ\u2019s order, and despite the Department of Justice\u2019s memoranda, it would be civilly responsible for violation of the CS A by way of conspiracy or aiding and abetting. As distinguished from Vialpando, Employer cites the federal statutes it believes would implicate him, 21 U.S.C. \u00a7 841A(a) (prohibiting a person from knowingly possessing a controlled substance as defined by federal law and in an amount specified by the United States Attorney General); 21 U.S.C. \u00a7 846 (prohibiting a person from attempting or conspiring to commit a violation of federal law related to controlled substances under 21 U.S.C., Chapter 13, Subchapter 1); 18 U.S.C. \u00a7 2(a) (2012) (\u201cWhoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.\u201d).\n{32} However, Employer\u2019s argument raises only speculation in view of existing Department of Justice and federal policy. Nothing in the Department of Justice\u2019s second memorandum alters its position regarding the areas of enforcement set forth in the initial memorandum. Medical marijuana is not within the list. Moreover, on December 16,2014, the Consolidated and Further Appropriations Act of 2015 to fund the operations of the federal government was enacted. It states that \u201c[n]one of the funds made available in this Act to the Department of Justice may be used, with respect to the [s]tates of. . .New Mexico,.. . , to prevent such States from implementing their own State laws that authorize the use, distribution, possession or cultivation of medical marijuana.\u201d We reach the same conclusion that we did in Vialpando. In view of the equivocal federal policy and the clear New Mexico policy as expressed in the Compassionate Use Act, we decline to reverse the WCJ\u2019s amended compensation order.\nCONCLUSION\n{33} We affirm the amended compensation order.\n{34} IT IS SO ORDERED.\nJAMES J. WECHSLER, Judge\nWE CONCUR:\nRODERICK T. KENNEDY, Judge\nM. MONICA ZAMORA, Judge\nSection 7.34.3 NMAC was amended in 2015. The previous version (12/30/2010) is cited in this Opinion because it is applicable to the pending case.\nEmployer also intimates on appeal that Dr. Rosenberg\u2019s certification could not support Worker\u2019s enrollment in the program because he was not Worker\u2019s primary physician. Employer, however, does not indicate the manner in which such an issue was preserved before the WCJ. \u201cTo preserve a question for review it must appear that a ruling or decision\u201d below was fairly invoked. Rule 12-216(A) NMRA.\nThe certification forms of Dr. Esparza, Dr. Rosenberg, and Joel Gelinas were all received in evidence over Employer\u2019s objection.", "type": "majority", "author": "WECHSLER, Judge." } ], "attorneys": [ "Peter D. White", "Santa Fe, NM", "for Appellee", "Paul L. Civerolo, L.L.C.", "Paul L. Civerolo", "Albuquerque, NM", "for Appellant" ], "corrections": "", "head_matter": "IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO\nOpinion Number: 2015-NMCA-090\nFiling Date: June 26, 2015\nDocket No. 33,236\nSANDRA LEWIS, Worker-Appellee, v. AMERICAN GENERAL MEDIA and GALLAGHER BASSETT, Employer/Insurer-Appellant.\nPeter D. White\nSanta Fe, NM\nfor Appellee\nPaul L. Civerolo, L.L.C.\nPaul L. Civerolo\nAlbuquerque, NM\nfor Appellant" }, "file_name": "0454-01", "first_page_order": 470, "last_page_order": 479 }