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                    THE SUPREME COURT OF NEW HAMPSHIRE

                               ___________________________

Compensation Appeals Board
No. 2017-0469


                         APPEAL OF ANDREW PANAGGIO
                   (New Hampshire Compensation Appeals Board)

                               Argued: June 14, 2018
                            Opinion Issued: March 7, 2019

       Shaheen & Gordon, P.A., of Manchester (Jared P. O’Connor on the brief
and orally), for the petitioner.


       Tentindo, Kendall, Canniff & Keefe LLP, of Boston, Massachusetts
(Robert S. Martin on the brief and orally), for the respondent.

      BASSETT, J. The petitioner, Andrew Panaggio, appeals a decision of the
New Hampshire Compensation Appeals Board (board). The board denied his
request for reimbursement from the respondent, CNA Insurance Company
(insurance carrier), for the cost incurred for therapeutic cannabis authorized
pursuant to RSA chapter 126-X, to treat his work-related injury.1 We reverse
in part, vacate in part, and remand.

      The record supports the following facts. Panaggio suffered a work-
related injury to his lower back in 1991. A permanent impairment award was

1 RSA chapter 126-X is titled “Use of Cannabis for Therapeutic Purposes.” The board used the
term “medical marijuana.” For ease of reference, we consider the terms “cannabis” and
“marijuana” to be interchangeable for purposes of this appeal.
approved in 1996, and in 1997 he received a lump-sum settlement. Panaggio
continues to suffer ongoing pain as a result of his injury and has experienced
negative side effects from taking prescribed opiates. In 2016, the New
Hampshire Department of Health and Human Services determined that
Panaggio qualified as a patient in the therapeutic cannabis program, and
issued him a New Hampshire cannabis registry identification card. See RSA
126-X:4 (Supp. 2018). Panaggio purchased medical marijuana and submitted
his receipt to the workers’ compensation insurance carrier for reimbursement.
The carrier denied payment on the ground that “medical marijuana is not
reasonable/necessary or causally related” to his injury.

       Panaggio challenged the insurance carrier’s denial before the New
Hampshire Department of Labor. The hearing officer found that Panaggio had
“failed to satisfy his burden of proof that the outstanding medical treatment is
reasonable, related or made necessary by the work injury.” Therefore, the
officer concluded that “reimbursement and payment of expense associated with
the medicinal marijuana cannabis is not reasonable.”

      Panaggio appealed the hearing officer’s decision to the board. Following
a hearing, the board rejected the insurance carrier’s position that Panaggio’s
use of medical marijuana is not medically reasonable or necessary. The board
credited Panaggio’s testimony that “cannabis is palliative and has the added
benefit of reducing his need for opiates,” and unanimously found that
Panaggio’s “use is reasonable and medically necessary.” Nonetheless, a
majority of the board upheld the carrier’s refusal to reimburse Panaggio,
concluding that “the carrier is not able to provide medical marijuana” because
such reimbursement is “not legal under state or federal law.”

      The board observed that “possession of marijuana is still a federal
crime,” and that the registry identification card issued by the State explains
that RSA chapter 126-X “does not exempt a person from federal criminal
penalties for the possession of cannabis.” (Quotation omitted.) Relying upon
the statutory language that “[n]othing in this chapter shall be construed to
require . . . [a]ny health insurance provider, health care plan, or medical
assistance program to be liable for any claim for reimbursement for the
therapeutic use of cannabis,” RSA 126-X:3, III(a), the board determined that
RSA 126-X:3, III(a) (2015) bars Panaggio’s request for reimbursement, finding
that the clear purpose of the statute is “to protect such providers from being
subject to criminal prosecution under federal law.” Although noting that
workers’ compensation insurance carriers are not expressly identified in the
statute, the board concluded that, because such carriers “provide payments for
medical treatment just as health insurers do,” subsection 3, III(a), applies to
them as well.

     One member of the three-member board dissented. He disagreed with
the majority’s conclusion that because “marijuana is still illegal under federal


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law . . . [,] requiring the [carrier] to provide reimbursement would make the
[carrier] complicit in this legal violation,” noting that the insurance carrier
“cites no specific section of the Federal Controlled Substances Act that
reimbursement to the claimant would violate.” In addition, he disagreed with
the majority’s interpretation of RSA 126-X:3, III, reasoning that it was not
supported by a “simple reading of the law’s language” and “[i]f the legislature
had wanted to include workers’ compensation [insurers], these insurers could
have been listed.” Panaggio unsuccessfully moved for reconsideration, and this
appeal followed.

       On appeal, Panaggio argues that the board erred in its interpretation of
RSA 126-X:3, III, and when it based its decision in part on the fact that
possession of marijuana is illegal under federal law. We will not disturb the
board’s decision absent an error of law, or unless, by a clear preponderance of
the evidence, we find it to be unjust or unreasonable. Appeal of Phillips, 169
N.H. 177, 180 (2016); see RSA 541:13 (2007). The appealing party has the
burden of demonstrating that the board’s decision was erroneous. See Appeal
of Fay, 150 N.H. 321, 324 (2003). All findings of the board upon questions of
fact properly before it are deemed to be prima facie lawful and reasonable. See
RSA 541:13. Thus, we review the board’s factual findings deferentially. See
Appeal of N.H. Dep’t of Corrections, 162 N.H. 750, 753 (2011). We review its
statutory interpretation de novo. Id.

       We first address Panaggio’s argument that the board’s interpretation of
RSA 126-X:3, III(a) was erroneous. He asserts that “[a]bsent crystal clear
instruction from the New Hampshire Legislature to do otherwise, the Board
was . . . required to order the insurer to pay” pursuant to the obligation
imposed by the workers’ compensation statute. See RSA 281-A:23, I (2010)
(providing that an injured employee is entitled to have his or her employer’s
insurance carrier furnish “reasonable medical . . . care . . . for such period as
the nature of the injury may require”). The insurance carrier does not
challenge the board’s finding that Panaggio’s use of medical marijuana is
reasonable and medically necessary. Rather, the carrier argues that “[t]he
clear purpose of” RSA 126-X:3, III(a) “is to prevent any reimbursement of
medical marijuana by any entity that would be subject under contract or law to
pay.” According to the carrier, “the plain and unambiguous language of the
statute creates . . . an explicit prohibition to require an insurer to pay a claim
for reimbursement.”

      On questions of statutory interpretation, we are the final arbiters of the
intent of the legislature as expressed in the words of a statute considered as a
whole. Appeal of Phillips, 169 N.H. at 180. We first examine the language of
the statute and ascribe the plain and ordinary meanings to the words used. Id.
We interpret legislative intent from the statute as written and will not consider
what the legislature might have said or add language that the legislature did
not see fit to include. Id. In addition, we construe the workers’ compensation


                                        3
statute liberally to give the broadest reasonable effect to its remedial purpose.
Appeal of Gamas, 158 N.H. 646, 648 (2009). Thus, when construing the
statute, we resolve all reasonable doubts in favor of the injured worker. Id.

       RSA 126-X:3, III states that “[n]othing in this chapter shall be construed
to require . . . [a]ny health insurance provider, health care plan, or medical
assistance program to be liable for any claim for reimbursement for the
therapeutic use of cannabis.” RSA 126-X:3, III(a) (emphasis added). Although
the statute does not create a right to reimbursement for the cost of medical
marijuana nor require any of the listed entities to participate in the therapeutic
cannabis program, neither does it bar any of those entities from providing
reimbursement. Importantly, the statute provides that “[a] qualifying patient
shall not be . . . denied any right or privilege for the therapeutic use of
cannabis in accordance with this chapter.” RSA 126-X:2, I (2015). To read
RSA 126-X:2, III as barring reimbursement of an employee with a workplace
injury for his reasonable and necessary medical care is to ignore this plain
statutory language. Pursuant to the Workers’ Compensation Law, an
employer’s insurance carrier “shall furnish or cause to be furnished to an
injured employee reasonable medical . . . care . . . for such period as the nature
of the injury may require.” RSA 281-A:23, I. Thus, the effect of denying
reimbursement of Panaggio under these circumstances is to deny him his right
to medical care deemed reasonable under the Workers’ Compensation Law.

       We note that statutes in other jurisdictions expressly prohibit workers’
compensation insurance carriers from reimbursing claimants for the cost of
medical marijuana. See, e.g., Fla. Stat. § 381.986(15) (2017) (providing in
Florida’s Medical Use of Marijuana statute that “[m]arijuana . . . is not
reimbursable under” Florida’s Workers’ Compensation Law); Mich. Comp. Laws
§ 418.315a (2014) (providing in the Michigan Worker’s Disability Compensation
Act that “[n]otwithstanding” the requirement that an employer “shall furnish,
or cause to be furnished, to an employee who receives a personal injury arising
out of and in the course of employment, reasonable medical . . . treatment,” an
employer “is not required to reimburse or cause to be reimbursed charges for
medical marihuana treatment”). Had the legislature intended to bar patients in
the therapeutic cannabis program from receiving reimbursement under RSA
281-A:23, I, it easily could have done so, and we will not add language that the
legislature did not see fit to include. See Appeal of Phillips, 169 N.H. at 180.

       Reading the language in RSA 126-X:3 in the context of the statutory
scheme as a whole, we agree with Panaggio that, although RSA 126-X:3, III(a)
“does not newly create an affirmative statutory obligation for any enumerated
entity to reimburse any patient for money spent on therapeutic cannabis,”
neither does it “disturb preexisting, separate statutory obligations to provide for
reimbursement.” Accordingly, because the board found that Panaggio’s use of
medical marijuana is reasonable, medically necessary, and causally related to
his work injury, we hold that the board erred when it determined that the


                                        4
insurance carrier is prohibited from reimbursing Panaggio for the cost of
purchasing medical marijuana.

       Next, Panaggio asserts that the board erred by basing its decision, in
part, on the fact that possession of marijuana is illegal under federal law. After
rejecting the insurance carrier’s argument that Panaggio’s use of medical
marijuana is not medically reasonable or necessary, the board concluded that
“the carrier is not able to provide medical marijuana,” observing that
“possession of marijuana is still a federal crime.” In its order, the board
referenced information that the State provides to patients who qualify for the
therapeutic cannabis program. The information includes statements that RSA
chapter 126-X “does not exempt a person from federal criminal penalties for
the possession of cannabis,” and that federal law “does not allow for the
medical or therapeutic use of cannabis.” The board also noted that Attorney
General Sessions had “announced that [the current] administration would
resume prosecuting more stridently criminals involved in the drug trade
whether they were violent offenders or not.”

       Panaggio argues that the board, having noted only that Panaggio’s
possession and use of medical marijuana is a federal crime, “did not explain
why it necessarily follows that the carrier may not separately be ordered to
comply with its own independent state law obligation to reimburse claimants
for related medical treatment.” He further argues that the “existence of the
Controlled Substances Act does not undo the Workers’ Compensation Law’s
requirement to reimburse” because an order to reimburse will not make the
insurance carrier “possess, manufacture or distribute” a controlled substance,
and “[r]eimbursement of the cost of therapeutic cannabis to a patient otherwise
qualified under New Hampshire law to possess it is not an offense identified in
the Controlled Substances Act.” See 21 U.S.C. § 841(a)(1) (2012).

      On appeal, the insurance carrier asserts that if it “is ordered to
reimburse the employee for the payment of medical marijuana, it would be in
express violation” of federal laws that prohibit a person from knowingly
possessing a controlled substance, see 21 U.S.C. § 841(a)(1), from attempting
or conspiring to commit a violation of federal law related to controlled
substances, see 21 U.S.C. § 846 (2012), and from aiding and abetting an
offense against the United States, see 18 U.S.C. § 2(a) (2012). However, the
board’s order does not indicate that it relied upon any of these statutory
provisions in reaching its decision. Nor did the board analyze whether the
insurance carrier’s compliance with an order to reimburse Panaggio for medical
marijuana obtained in accordance with state law would violate any federal
statute. For example, the board did not address whether, under those
circumstances, the government would be able to prove the commission of a
federal crime beyond a reasonable doubt, including proof that the carrier had
the requisite criminal intent. See United States v. Watson, 669 F.2d 1374,
1379 (11th Cir. 1982) (to prove a conspiracy under 21 U.S.C. § 846, the


                                        5
government must prove that there was an agreement among the defendants to
achieve an illegal purpose); United States v. Dolt, 27 F.3d 235, 238 (6th Cir.
1994) (to establish aiding and abetting, the government must prove that the
defendant committed overt acts or affirmative conduct to further the offense,
and intended to facilitate the commission of the crime); United States v.
Rodriguez-Duran, 507 F.3d 749, 758-59 (1st Cir. 2007) (to prove aiding and
abetting, “[m]ere association with the principal . . . is insufficient, even with
knowledge that the crime is to be committed” (quotation omitted)).

       Our standard of review of a board’s decision presupposes that the board
has made findings that provide an adequate record of its reasoning sufficient
for a reviewing court to render meaningful review. See Motorsports Holdings v.
Town of Tamworth, 160 N.H. 95, 107 (2010); see also RSA 541-A:35 (2007)
(providing that “[a] final decision or order adverse to a party in a contested case
shall be in writing or stated in the record” and “shall include findings of fact
and conclusions of law, separately stated”). However, in concluding that the
insurance carrier “is not able to provide medical marijuana,” the board simply
stated that “possession of marijuana is still a federal crime” and that RSA 126-
X:3, III “is clearly a provision to protect [the carrier] from being subject to
criminal prosecution under federal law.” The board did not cite any legal
authority for its conclusion, much less identify a federal statute that, under the
circumstances of this case, would expose the insurance carrier to criminal
prosecution; thus, we are left to speculate.2 See Lewis v. American General
Media, 355 P.3d 850, 858 (N.M. Ct. App. 2015) (rejecting, as mere
“speculation,” employer’s argument that reimbursing an injured employee for
medical marijuana renders it criminally liable under federal law). But see
Bourgoin v. Twin Rivers Paper Co., 187 A.3d 10, 17 (Me. 2018) (determining
that employer’s act of subsidizing an employee’s acquisition of medical
marijuana meets the elements of aiding and abetting as defined in federal law).

      Because the board’s order fails to sufficiently articulate the law that
supports the board’s legal conclusion and fails to provide an adequate
explanation of its reasoning regarding federal law, it is impossible for us to
discern the basis for the board’s decision sufficient for us to conduct
meaningful review. See Appeal of Savage, 144 N.H. 107, 110 (1999); see also
Appeal of Walker, 144 N.H. 181, 184 (1999) (explaining that we are “unable to

2 We note that for at least a decade, the Department of Justice had a policy of declining to
prosecute individuals whose possession and use of medical marijuana was in compliance with
state law authorizing such possession and use. See David W. Ogden, Deputy Attorney General,
Memorandum: Investigations and Prosecutions in States Authorizing the Medical Use of
Marijuana, October 19, 2009; James M. Cole, Deputy Attorney General, Memorandum: Guidance
Regarding Marijuana Enforcement, August 29, 2013. Although Attorney General Sessions
subsequently rescinded that policy, since 2015 the federal budget has effectively prohibited the
Department of Justice from prosecuting individuals who engage in conduct permitted by state
medical marijuana laws and who fully comply with such laws. See United States v. McIntosh, 833
F.3d 1163, 1177 (9th Cir. 2016).


                                               6
intelligently review [the board’s] decision when it does not provide an adequate
basis for its conclusions”). Accordingly, we remand to the board for a
determination of these issues in the first instance.

                                                 Reversed in part; vacated
                                                 in part; and remanded.

      HICKS, HANTZ MARCONI, and DONOVAN, JJ., concurred.




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