 1      IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 2 Opinion Number: ______________

 3 Filing Date: January 13, 2015

 4 NO. 33,154

 5 MIGUEL MAEZ,

 6       Worker-Appellant,

 7 v.

 8 RILEY INDUSTRIAL and CHARTIS,

 9       Employer/Insurer-Appellees.


10 APPEAL FROM THE WORKERS’ COMPENSATION ADMINISTRATION
11 David L. Skinner, Workers’ Compensation Judge


12 Titus & Murphy Law Firm
13 Victor A. Titus
14 Farmington, NM

15 for Appellant

16 Hoffman Kelley Lopez LLP
17 Lori A. Martinez
18 Albuquerque, NM

19 for Appellees
 1                                      OPINION

 2 WECHSLER, Judge.

 3   {1}   In Vialpando v. Ben’s Automotive Services, 2014-NMCA-084, ¶ 1, 331 P.3d

 4 975, cert. denied, 331 P.3d 924 (2014), this Court held that the Workers’

 5 Compensation Act, NMSA 1978, §§ 52-1-1 to -70 (1929, as amended through 2013),

 6 authorizes reimbursement for medical marijuana used pursuant to the Lynn and Erin

 7 Compassionate Use Act (Compassionate Use Act), NMSA 1978, §§ 26-2B-1 to -7

 8 (2007). The workers’ compensation judge in Vialpando had found that the worker

 9 was qualified to participate in the Department of Health Medical Cannabis Program

10 authorized by the Compassionate Use Act and that such treatment would be

11 reasonable and necessary medical care. 2014-NMCA-084, ¶ 1.

12   {2}   In this appeal, the workers’ compensation judge (WCJ) found that the worker’s

13 authorized treating health care provider (HCP) did not prescribe medical marijuana

14 and concluded that medical marijuana was not reasonable and necessary medical care.

15 Worker Miguel Maez argues that the WCJ erred in this conclusion because Worker

16 had proven that medical marijuana was reasonable and necessary medical care,

17 particularly based on the evidence that the HCP’s treatment plan for Worker included

18 medical marijuana, and the HCP and another doctor had certified Worker’s use of

19 medical marijuana as required by the Compassionate Use Act.
 1   {3}   Because there is not substantial evidence supporting the WCJ’s conclusion that

 2 medical marijuana was not reasonable and necessary medical care for Worker, we

 3 reverse the WCJ’s compensation order.

 4 I.      BACKGROUND

 5   {4}   Worker suffered two compensable injuries to his lumbar spine in the course

 6 and scope of his employment with Riley Industrial on February 14, 2011 and March

 7 4, 2011. Riley Industrial was insured by Chartis (both referred to as Employer

 8 herein). Worker was entitled to payment of temporary disability until the date of

 9 maximum medical improvement and permanent partial disability thereafter based on

10 a seven percent whole body impairment for the balance of the 500-week benefit

11 period. He was also entitled to ongoing reasonable and necessary medical care. His

12 authorized HCP was Dr. Anthony Reeve.

13   {5}   The WCJ found that “Dr. Reeve did not prescribe medical marijuana to

14 Worker” and concluded that “[m]edical marijuana is not reasonable and necessary

15 medical care from an authorized HCP” that would require payment by Employer.

16 Worker appeals from the WCJ’s compensation order to the extent that the WCJ did

17 not award medical benefits for Worker’s use of medical marijuana for pain

18 management.




                                              2
 1 II.     REASONABLE AND NECESSARY MEDICAL CARE

 2 A.      Issue on Appeal

 3   {6}   On appeal, Worker initially makes arguments concerning the interrelationship

 4 of the Workers’ Compensation Act and the Compassionate Use Act that are similar

 5 to those we decided in Vialpando. In Vialpando, filed after Worker filed his brief-in-

 6 chief in this case, we determined that medical marijuana treatment approved under

 7 the Compassionate Use Act that the WCJ found to be reasonable and necessary

 8 medical care qualifies for reimbursement under the Workers’ Compensation Act.

 9 Vialpando, 2014-NMCA-084, ¶ 1.

10   {7}   The WCJ in this case did not find Worker’s medical marijuana treatment to be

11 reasonable and necessary medical care. To the contrary, the WCJ specifically

12 concluded that “[m]edical marijuana is not reasonable and necessary medical care

13 from an authorized HCP.” Worker argues that the WCJ erred in reaching this

14 conclusion because the evidence indicated that medical marijuana is reasonable care

15 for Worker’s chronic low back pain and because the WCJ incorrectly found that

16 medical marijuana was not “prescribed” by Dr. Reeve.

17   {8}   The Workers’ Compensation Act requires an employer to provide a worker

18 “reasonable and necessary health care services from a health care provider.” Section

19 52-1-49(A). Conversely, an employer need not provide a worker with health care that


                                             3
 1 is not reasonable and necessary. See Vargas v. City of Albuquerque, 1993-NMCA-

 2 136, ¶ 8, 116 N.M. 664, 866 P.2d 392 (“[T]he employer’s obligation is limited by

 3 Section 52-1-49(A) to paying for ‘reasonable and necessary’ health care services”).

 4 Thus, the pivotal question in Worker’s appeal is whether the evidence supports the

 5 WCJ’s conclusion that medical marijuana was not reasonable and necessary medical

 6 care.

 7 B.       Standard of Review

 8   {9}    We address this question under a whole record standard of review by

 9 determining whether substantial evidence in the record as a whole supports the WCJ’s

10 conclusion. Dewitt v. Rent-A-Center, Inc., 2009-NMSC-032, ¶ 12, 146 N.M. 453,

11 212 P.3d 341. Substantial evidence is credible evidence in light of the whole record

12 “that is sufficient for a reasonable mind to accept as adequate to support the

13 conclusion[.]” Id. (internal quotation marks and citation omitted). We give deference

14 to the WCJ as factfinder and view the evidence in the light most favorable to the

15 decision without disregarding contravening evidence. Id.

16   {10}   While we generally may not weigh the evidence, even under whole record

17 review, such review “allows the reviewing court greater latitude to determine whether

18 a finding of fact was reasonable based on the evidence[.]” Herman v. Miners’ Hosp.,

19 1991-NMSC-021, ¶ 10, 111 N.M. 550, 807 P.2d 734. Moreover, our review has even


                                             4
 1 greater latitude when reviewing an issue for which the evidence is documentary in

 2 nature. As in this case, when “all or substantially all of the evidence on a material

 3 issue is documentary or by deposition,” an appellate court may “examine and weigh

 4 it[.]” United Nuclear Corp. v. Gen. Atomic Co., 1979-NMSC-036, ¶ 62, 93 N.M.

 5 105, 597 P.2d 290 (internal quotation marks and citation omitted). In review for

 6 substantial evidence of such a record from a district court proceeding, the appellate

 7 court must then give “some weight to the findings of the trial judge on such issue”

 8 and not disturb such findings based on conflicting evidence “unless such findings are

 9 manifestly wrong or clearly opposed to the evidence.” Id. (internal quotation marks

10 and citation omitted). In this case, in which we are applying whole record review, we

11 must similarly give weight to the WCJ’s findings and consider contravening

12 evidence. Dewitt, 2009-NMSC-032, ¶ 12. Following United Nuclear, we will not

13 disturb the WCJ’s findings unless they are manifestly wrong or clearly opposed to the

14 evidence. 1979-NMSC-036. ¶ 69.

15   {11}   We apply a de novo standard to the WCJ’s application of law to the facts.

16 Vialpando, 2014-NMCA-084, ¶ 5.

17 C.       Review of the Evidence

18   {12}   Dr. Reeve provided the evidence concerning the issue of whether medical

19 marijuana constituted reasonable and necessary medical care. He testified by


                                             5
 1 deposition. He made detailed medical reports of each of Worker’s visits, and the

 2 reports were included as exhibits to his deposition.

 3   {13}   Dr. Reeve began treating Worker on June 13, 2011. He testified that his

 4 diagnosis of Worker included chronic back pain and that he treated Worker with

 5 medication for pain management. Over the course of Worker’s treatment, Dr. Reeve

 6 had injected Worker with Toradol and had prescribed Soma, Ultram, Sprix, Percocet,

 7 Lortab (oxycodone), and hydrocodone for Worker’s pain. Dr. Reeve also referred

 8 Worker to another doctor for spinal injections. During one test required for pain

 9 management patients, Worker tested positive for marijuana. Dr. Reeve informed

10 Worker that if Worker was going to take marijuana, he needed to have a license for

11 Dr. Reeve to continue administering other narcotics, and further, even if Worker had

12 a license, he would probably consider only additional nonnarcotic pain medication.

13   {14}   On February 28, 2012, Dr. Reeve first saw Worker for a medical marijuana

14 evaluation. In his medical report, Dr. Reeve states that Worker has had spinal

15 injections and chronic pain management and that Worker “has failed traditional pain

16 management and is a candidate for the cannabis program.” At that time, Dr. Reeve

17 was treating Worker with hydrocodone. His report concludes with the following:




                                            6
 1          IMPRESSION

 2                1.    Lumbar radiculopathy.
 3                2.    Chronic low back pain.
 4                3.    Failed traditional management.

 5          REHABILITATION MANAGEMENT AND SUGGESTIONS

 6          I have reviewed the records and examined the patient. The history,
 7          radiographic and physical findings are consistent at this time. I will
 8          recommend authorization of medical marijuana as a trial. Authorization
 9          is good for one year and the patient will need to show symptomatic
10          progress upon reauthorization.

11          TREATMENT PLAN

12          Authorization for medical marijuana for one year.

13   {15}   Dr. Reeve re-authorized Worker for the medical marijuana program after an

14 evaluation on April 3, 2013. Similarly, Dr. Reeve again stated in his report that

15 Worker had “failed traditional pain management and is a candidate for the cannabis

16 program.”       He stated the same “IMPRESSION” and “REHABILITATION

17 MANAGEMENT AND SUGGESTIONS” as he had on February 28, 2012. His

18 “TREATMENT PLAN” stated “Reauthorization for medical marijuana for one year.”

19   {16}   The Compassionate Use Act requires for enrollment that “a person licensed in

20 New Mexico to prescribe and administer drugs that are subject to the Controlled

21 Substances Act” provide a “written certification” that “the patient has a debilitating

22 medical condition” and that the person certifying “believes that the potential health


                                              7
 1 benefits of the medical use of cannabis would likely outweigh the health risks for the

 2 patient.” Section 26-2B-3(E), (H). Dr. Reeve signed the certification for Worker to

 3 qualify for the Compassionate Use Act medical marijuana program. The original

 4 certification is not part of the record on appeal.            Dr. Reeve also signed the

 5 certification re-enrolling Worker in the program. In that certification, in addition to

 6 the statutory requirements stated above, Dr. Reeve further certified that Worker “has

 7 current unrelieved symptoms that have failed other medical therapies.”

 8   {17}   At his deposition, Dr. Reeve was asked: “And because you signed for [medical

 9 marijuana], do you believe that it is an appropriate medical treatment for [Worker’s]

10 herniated disk?” Dr. Reeve responded:

11          Well, I think I need to be really clear on this issue. What happens is
12          patients are going to use the cannabis [marijuana] either one way or the
13          other. He already tested positive for it. And so I explain to patients, “If
14          you’re going to use cannabis, you should probably have a license for it
15          because people will suspect you of using it ultimately, and you can
16          always pass a preemployment screen or other tests if you have a license
17          for it.” And if patients request that I sign it, I will sign for them, but I’m
18          not recommending or distributing or in any way advocating for the use
19          of medical cannabis.

20 1.       Necessity of a Prescription

21   {18}   Worker contends that the WCJ erred in his conclusion that medical marijuana

22 does not constitute reasonable and necessary medical care because Dr. Reeve did not

23 “prescribe” medical marijuana for Worker. The WCJ found that Dr. Reeve did not


                                                  8
 1 prescribe medical marijuana to Worker and further found that “Employer is not liable

 2 for the purchase of medical marijuana based on the fact that the medical marijuana

 3 is not being prescribed by the authorized HCP, Dr. Reeve.”              The Workers’

 4 Compensation Administration regulations adopted pursuant to NMSA 1978, Section

 5 52-4-5 (1993) and NMSA 1978, Section 52-5-4 (2003) applicable at the time Worker

 6 filed his application defined “prescription drug” as a drug requiring “a written order

 7 from an authorized HCP for dispensing by a licensed pharmacist or authorized HCP.”

 8 11.4.7.7(OO) NMAC (12/31/2011). But, as we stated in Vialpando, medical

 9 marijuana is not a prescription drug. 2014-NMCA-084, ¶ 11. Moreover, as we

10 further stated in Vialpando, the certification required under the Compassionate Use

11 Act by a person licensed in New Mexico to prescribe and administer controlled

12 substances is the functional equivalent of a prescription. Id. ¶ 12; see § 26-2B-3(E),

13 (H). We thus agree with Worker that the fact that Dr. Reeve did not provide Worker

14 a prescription as defined in the regulations does not support the WCJ’s conclusion

15 that medical marijuana was not reasonable and necessary medical care for Worker.

16 2.       Conclusion Regarding Reasonable Medical Care

17   {19}   As we have stated, to the extent that the WCJ based his conclusion that medical

18 marijuana was not reasonable and necessary medical care on his finding that Dr.

19 Reeve did not prescribe medical marijuana for Worker, the WCJ’s conclusion is


                                               9
 1 based on a faulty premise. Employer argues that the evidence in the record

 2 nevertheless supports the WCJ’s conclusion. We therefore turn to the other evidence

 3 to determine whether it supports the conclusion that medical marijuana was not

 4 reasonable and necessary medical care for Worker.

 5   {20}   We discuss the two aspects of the WCJ’s conclusion separately. With regard

 6 to whether medical marijuana was reasonable medical care for Worker, we have little

 7 difficulty concluding that the evidence as a whole does not support the WCJ’s

 8 conclusion.     Regardless of whether Worker requested treatment with medical

 9 marijuana, Dr. Reeve had treated Worker with traditional pain management that had

10 failed. He adopted a treatment plan based on medical marijuana. He would not have

11 done so if it were an unreasonable medical treatment. The evidence does not support

12 a conclusion that Dr. Reeve did not believe medical marijuana to be a reasonable

13 treatment for Worker.

14 3.       Conclusion Regarding Necessary Medical Care

15   {21}   The aspect concerning necessary medical care is more difficult. Dr. Reeve did

16 not testify that the medical marijuana treatment was necessary for Worker’s care.

17 Rather, when asked in his deposition whether he believed it was appropriate medical

18 treatment because he had signed for it, Dr. Reeve stated that Worker was using

19 marijuana, that such patients need a license for such use, and that he will sign for


                                              10
 1 them if he is requested. He specified that in doing so he was not recommending

 2 marijuana use. He also considered the medical marijuana program to be a patient’s

 3 decision “as it’s private and voluntary and it’s not overseen by a physician.”

 4   {22}   The WCJ decided from this evidence that medical marijuana was not necessary

 5 medical care for Worker. The question before us is whether there was substantial

 6 evidence for the WCJ to reach this conclusion. Under our standard of review, we

 7 must defer to the finder of fact and view the evidence in the most favorable light to

 8 the decision without disregarding contravening evidence.

 9   {23}   Worker had the burden to establish that medical marijuana was a necessary

10 medical treatment. See DiMatteo v. Doña Ana Cnty., 1985-NMCA-099, ¶ 26, 104

11 N.M. 599, 725 P.2d 575 (stating under previous version of Workers’ Compensation

12 Act that the worker had the burden of proving that his medical expenses were

13 reasonably necessary). The evidence indicates that Dr. Reeve considered traditional

14 pain management to have failed and planned to treat Worker with medical marijuana.

15 Dr. Reeve also testified, however, that medical marijuana treatment is a patient’s

16 decision and that he will adopt it on a patient’s request. The question before us

17 distills to whether, considering all the evidence, the WCJ could reasonably have

18 concluded that medical marijuana was not necessary medical care because Dr. Reeve




                                             11
 1 merely acceded to Worker’s choice and adopted medical marijuana as his treatment

 2 plan because Worker had begun to use it on his own.

 3   {24}   We begin with the contravening evidence. Dr. Reeve’s medical reports clearly

 4 state that he had treated Worker with traditional pain management and that such

 5 treatment had failed. The medical reports further state that Dr. Reeve was adopting

 6 medical marijuana as his treatment plan and would recommend its use for Worker.

 7 Dr. Reeve did so, certifying in Worker’s re-enrollment form that Worker had

 8 “unrelieved symptoms that have failed other medical therapies.” We consider this

 9 evidence to clearly establish that medical marijuana was necessary for Worker’s

10 treatment because (1) traditional pain management had failed and (2) it would not be

11 possible for Dr. Reeve to institute or carry out his treatment plan without medical

12 marijuana.

13   {25}   To support the WCJ’s conclusion and to consider the evidence in the light most

14 favorable to the WCJ’s conclusion, we must be able to infer from Dr. Reeve’s

15 deposition testimony, as argued by Employer, that medical marijuana treatment was

16 entirely Worker’s choice and that Dr. Reeve certified Worker for the medical

17 marijuana program only because Worker intended to use it regardless and asked Dr.

18 Reeve for the certification. In this regard, Dr. Reeve testified that Worker had tested

19 positive for marijuana, that patients use marijuana “either one way or the other[,]” and


                                              12
 1 that he will sign for patients if requested. He further stated that he was “not

 2 recommending or distributing or in any way advocating for the use of medical

 3 cannabis.”

 4   {26}   But, even reading this evidence in the light most favorable to the WCJ’s

 5 decision, we do not consider this testimony to be inconsistent with Dr. Reeve’s

 6 medical records. There is no conflict in the evidence that Dr. Reeve addressed

 7 medical marijuana as a treatment for Worker because Worker had used marijuana and

 8 tested positive for it. Nor do we question that Dr. Reeve pursued medical marijuana

 9 as a treatment plan because Worker requested it. Dr. Reeve’s testimony also indicates

10 that, in adopting his treatment plan, he did not recommend medical marijuana to

11 Worker or advocate its use. Dr. Reeve did not distribute medical marijuana to

12 Worker. See Section 26-2B-4(E) (stating that a practitioner may not be subject to

13 arrest, prosecution, or penalty for distributing medical marijuana under the

14 Compassionate Use Act).

15   {27}   We must focus on the question at issue—whether medical marijuana was

16 necessary medical care for Worker. The facts that Dr. Reeve did not initiate or

17 recommend to Worker such care are not dispositive. Regardless of whether he took

18 such action or was merely “passive,” as Employer contends, Dr. Reeve adopted a

19 treatment plan that called for medical marijuana. By the very nature of such


                                            13
 1 treatment, medical marijuana was a necessary component.             Dr. Reeve then

 2 recommended Worker for receipt of medical marijuana by his certification. He did

 3 so, even though at Worker’s request, because traditional pain management was not

 4 successful for Worker.

 5   {28}   Perhaps most significantly, we cannot accept the contention, albeit implied,

 6 that Dr. Reeve would certify Worker for medical marijuana use solely on Worker’s

 7 request regardless of whether it was appropriate for Worker’s medical care.

 8 Marijuana is a controlled substance. The Compassionate Use Act makes an exception

 9 to the contraband use of marijuana only when necessary for medical treatment. See

10 § 26-2B-2 (“The purpose of the [Compassionate Use Act] is to allow the beneficial

11 use of medical cannabis in a regulated system for alleviating symptoms caused by

12 debilitating medical conditions and their medical treatments.”). Of course, a patient

13 must wish to participate in the Compassionate Use Act program, but that law does not

14 contemplate that individuals who wish to receive marijuana may do so merely upon

15 request; it requires the certification by a professional. Nor does it contemplate that

16 this professional certification will be issued in an irresponsible fashion. Dr. Reeve

17 was familiar with the Compassionate Use Act program and testified that he was “one

18 of only two doctors that I know of in the state that will sign for the medical

19 cannabis[.]” We cannot infer from Dr. Reeve’s testimony that he would certify


                                             14
 1 Worker for the Compassionate Use Act program without exercising his medical

 2 judgment. Indeed, to the contrary, his medical records describe in detail the basis for

 3 his exercise of his medical judgment.

 4   {29}   We additionally note that Dr. Reeve re-examined Worker on April 3, 2013 and

 5 re-authorized Worker for the Compassionate Use Act program. Dr. Reeve certified

 6 at that time that Worker continued to meet the eligibility requirements for the

 7 program and that Worker “has current unrelieved symptoms that have failed other

 8 medical therapies.” This certification underscores Worker’s need for medical

 9 marijuana therapy.

10   {30}   We thus read the evidence in the record as a whole as failing to support and as

11 clearly opposed to the WCJ’s conclusion that medical marijuana was not reasonable

12 and necessary medical care.

13 III.     WORKER’S REFUSAL OF REASONABLE AND NECESSARY
14          MEDICAL CARE

15   {31}   Employer also argues that, if medical marijuana is reasonable and necessary

16 medical care, Employer should not be responsible to reimburse it because Worker

17 refused the reasonable and necessary medical care that Dr. Reeve was providing to

18 him. We address this argument because, if Employer is correct, we could affirm the

19 WCJ’s compensation order because it is right for a reason that it does not address.

20 See Davis v. Los Alamos Nat’l Lab., 1989-NMCA-023, ¶ 18, 108 N.M. 587, 775 P.2d

                                              15
 1 1304 (stating that we will affirm the decision of a workers’ compensation order if it

 2 is right for any reason).

 3   {32}   However, we do not agree with Employer. Employer’s argument is premised

 4 on its position that:

 5                It was Worker’s own choice, and not Dr. Reeve’s professional
 6          judgment of what constituted reasonable and necessary care, that first
 7          motivated the medical use of marijuana. Dr. Reeve’s rationale for
 8          signing for the medical cannabis was not that he wasn’t providing
 9          reasonable and necessary care, but rather that Worker was going to use
10          marijuana regardless of whether Worker was taking narcotic pain
11          medication.

12   {33}   As we have discussed, however, the substantial evidence in the record as a

13 whole does not support the proposition that Dr. Reeve certified Worker for medical

14 marijuana treatment merely because Worker had made that choice. The record, which

15 includes Dr. Reeve’s medical reports, does not support a conclusion that traditional

16 pain medication was the sole reasonable and necessary treatment, precluding any

17 other.

18 IV.      CONCLUSION

19   {34}   Substantial evidence in the record as a whole does not support the WCJ’s

20 conclusion that medical marijuana was not reasonable and necessary medical care.

21 We therefore reverse the WCJ’s compensation order.




                                             16
1   {35}   IT IS SO ORDERED.


2                                         ________________________________
3                                         JAMES J. WECHSLER, Judge


4 WE CONCUR:


5 ________________________________
6 CYNTHIA A. FRY, Judge


7 ________________________________
8 MICHAEL E. VIGIL, Judge




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