IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

GILES & RANSOME, )
)
Appellant/Employer-Below, )
)
v. ) C.A. No. N17A-10-001 CEB
)
PATRICK KALIX, )
)
)

Appellee/Employee-Below.

Submitted: June 22, 2018
Decided: October 9, 2018

MEMORANDUM OPINION

Upon Consia’eration of Industrial Accident Boara’ Appeal.
AFFIRMED.

H. Garrett Baker, Esquire, Elzufon Austin & Mondell, P.A., Wilmington, DelaWare.
Attorney for Employer-Below Appellant.

Donald E. Marston, Esquire, and James R. Donovan, Esquire, Doroshow Pasquale
Krawitz & Bhaya, Bear, Delaware. Attorneys for Employee-Below Appellee.

BUTLER, J.

INTRODUCTION

Before the Court is an appeal of an Opinion and Order issued by the Industrial
Accident Board in the above matter. While the issues on appeal are fairly
straightforward by litigation standards, the case illustrates some cutting edge issues
likely to arise when the law must accommodate the emergence of medical marijuana
A brief history is in order.

FACTS AND PROCEDURAL HISTORY

Mr. Kalix was a diesel mechanic, employed by Giles & Ransome in 2005
when he injured his back in a workplace accident.l The back injury resulted in three
separate surgeries over the next few years, all performed by Dr. Bose.2 Mr. Kalix
continued to experience severe back pain, treated with Various and sundry pain
relievers.3

During this same period, Kalix was consuming marijuana in its “prelegal”
form, purchased from illegitimate sources, of unknown quality and smoked as a

pastime.4

 

l Op. below at 2.
2 Op. below at 16.
3 ld.

4R.at6.

Eventually, Kalix became interested in medical marijuana He asked his
doctor to authorize him to purchase it through Delaware’s first medical marijuana
dispensary.5 By this time, his primary means of pain relief was OXyContin and other
narcotics.6

Because of his medical problems, Kalix knew a number of physicians7
Neurologist Dr. Bruce Grossinger is the one that signed KaliX’s application for a
medical marijuana card in April, 2016.8 From the testimony, we learned that the
application for a medical marijuana card is then sent to the Delaware Division of
Public Health, which processes and issues the cards.9

But once the medical marijuana card is obtained, the process becomes quite
different from other medicines typically administered by prescription.10 The card
entitles the holder to go to the medical marijuana dispensary and choose his/her own
method of marijuana ingestion and dosage, up to 168 grams (siX ounces) per month,

with no other limitationll While the physician promises to monitor usage in the

 

5 Op. below at 2.

6 R. at 5.

7 Op. below at 2-10; R. at 5_7.
8 Op. below at 2.

9 Id.

10 Op. below 3_4.

ll Op. below at 4.

application process, the physician does not control dosage or frequency as she/he
would in a typical pharmaceutical setting.12 The patient and the clinic decide how
much of what strain of marijuana and in what form the patient should take it and
how often.13 In this case, this flexibility caused the employer a number of concerns
raised below.14

Perhaps equally concerning to the employer was the process by which Kalix
got the card. Dr. Grossinger signed off on the medical marijuana card application
even though he had not seen Kalix for close to 2 years.15 For reasons not clear in
the record, a different doctor in Grossinger’s office, Dr. Silberman, performed a
substance abuse “risk assessment” several months after Kalix had received his
marijuana card.16 Dr. Silberman found Kalix to be at “high risk” for abuse of the
marij uana. But shortly after speaking to Dr. Grossinger, Dr. Silberman amended his
finding from “high risk” to “no risk” for abuse.17 This was, perhaps understandably,

a source of contention in the hearing before the Board. But whether at high risk for

 

12 Op. below at 3_4.
13 Op. below at 3.

14 R. at 6_7.

15 R. at 6.

16 Op. below at 5_8.

17 Op. below at 13.

abuse or no risk, it appears that a medical marijuana card is available even to
historical substance abusers, or at least that historical abuse is not an absolute bar.
In addition to the deposition testimony of Drs. Grossinger and Silberman, the
Board heard live testimony from Dr. Townsend, a board certified neurologist, who
testified on behalf of the employer.18 Having read the transcript, the Court agrees
with the Board that put it pretty succinctly: “Dr. Townsend essentially agreed that
medical marijuana was a reasonable treatment modality.”19
Once Kalix got his authorization to shop for marijuana at the dispensary, he
began experimenting with different THC and CBD contents. He testified that this
was all with a view to figuring out what dosage/active ingredients gave him the most
pain relief.20 The employer took the position at the hearing that Kalix was abusing
the prescription, making many visits to the dispensary and consuming prodigious

amounts of marijuana in the first 6 months of his authorization .21 Kalix ran up over

$21,000 in medical marijuana costs in the year from May, 2016 to the hearing in

 

18 Op. below at 15_20.
19 Op. below at 25.
20 R. at 126_130.

21 Op. below at 2.

May, 2017. 22 While his monthly consumption never exceeded the 168 gram per
month maximum, it was still quite high in the first six months of the prescription23
Kalix testified that once he got his content and dosage figured out, he was able
to moderate his consumption and, by the time of the hearing, he was consistently
consuming about 50 grams per month.24 Dr. Townsend agreed that 50 grams per
month sounded reasonable to him, a conclusion the Board adopted as well.25
The employer maintains that Kalix’s high dosage of marijuana consumption
in the early months of his legal access to marijuana was not dosage, mode and quality
experimentation, but rather drug abuse, pure and simple. As the Court understands
its argument, the employer is not so much upset with Kalix’s consumption in excess
of 50 grams as he experimented, but rather that his consumption was so extreme that
it cannot possibly be attributed to experimentation This is why, for the employer,
the discredited doctor’s testimony about his risk for substance abuse is important:
Kalix is a habitual, long term marijuana smoker who was given the keys to the

dispensary, took advantage of it, and now wants the employer to foot the bill for his

drug abuse.

 

22 R. at 132.
25 Op. below at 17 and l9.
24 Op. below at 20.

25 Id.

At the Board, the employer complained that it should not be saddled with the
bill for Kalix’s drug abuse-or dosage and quality experimentation_depending on
one’s characterization, when his monthly purchases were close to 160 grams per
month. After all, the expert and the Board found that about 50 grams was all that
was “reasonable and necessary.”26 The Board recognized that establishing the
reasonableness of the costs “is in fact a more problematic exercise because medical
marijuana is not within the Healthcare Practice Guidelines nor is it part of the fee
schedule, see 19 Del. C. §2322B.”27 In “normal” prescription drug circumstances,
the Administrative Code provides specific caps on payment according to the
“Average Wholesale Price” of the drug, but no such schedule exists for a prescription
for marijuana28 So in the absence of “legislative guidance,” the Board elected to
order the employer to reimburse the claimant for the full expense of his
experimentation in dosage and frequency, even that in excess of the 50 grams per

month Dr. Townsend had found “reasonable.”29

 

26 Def.’s Mot. For Reargument at 2.
27 Op. below at 25.
28 Op. below at 26.

29 Id.

STANDARD OF REVIEW

When reviewing a Board decision, we review for errors of law and substantial
evidence to support the Board’s factual and legal findings. “Absent error of law, the
standard of review for lndustrial Accident Board’s workers’ compensation decision
is abuse of discretion.”30 Moreover, “The appellate court ‘does not sit as a trier of
fact with authority to weigh the evidence, determine questions of credibility, and
make its own factual findings and conclusions.’ Those functions are vested in the
1AB.”31

DISCUSSION

lt seems to the Court that there are two ways the Board could have gone here:
limit the claimant to reimbursement of 50 grams per month that Dr. Townsend
testified to be a reasonable, normal dose, or allow reimbursement for the claimant’s
“experimental period” that was a good deal in excess of 50 grams per month. How
the Board reached its decision says much about how the Board viewed the
conflicting arguments whether Kalix’s heightened consumption period was a
function of drug abuse or legitimate experimentation The Board opted for the

latter.32 This was a legitimate choice among the available explanations for Kalix’s

 

30 Person-Gaines v. Pepco Holdings, lnc., 981 A.2d 1159 (Del. 2009).

51 Glanden v. Land Prep, Inc., 918 A.2d 1098, 1100_01 (Del. Supr. 2007) (quoting Johsnon v.
Chrysler Corp., 213 A.2d 64, 66 (Dei. 1965)).

32 Op. below at 28.

large consumption. The employer’s continued attack on those findings does not
negate the deference the reviewing court gives to the Board, particularly in matters
involving witness credibility.

The issue on appeal is not whether the Board chose correctly, but rather
whether its finding is supported by substantial evidence. Where the evidence is
conflicting, it is not for this Court to reweigh the credibility of witnesses or make its
own factual findings33 The narrow question is whether the Board’s conclusions were
supported by substantial evidence. The determination of medical expenses as
“reasonable and necessary,” so as to be covered by the employer, is in the Board’s
discretion.34 The fact that the Board might have concluded otherwise, or there was
other evidence in opposition to the evidence credited by the Board does not negate
the limited nature of appellate review of Board decisions.35

Likewise, the employer’s demand to limit the reimbursement to the 50 grams

per month Kalix ultimately found relief with is an unrealistic restriction on the nature

 

33 Playzex Pmds. V. Harris, 2002 Del. super. LExls 236 (Del. super. Ct. sept 30, 2002),¢1]7’@1,
818 A.2d 970 (Del. 2003) (“Disputes over the reasonableness of medical expenses were factual
questions for the Delaware Industrial Accident Board to decide”).

34 Poole v. State, 77 A.3d 310 (2012) (“Whether medical services are necessary and reasonable or
whether the expenses are incurred to treat a condition causally related to an industrial accident are
purely factual issues within the purview of the Industrial Accident Board”).

55 Glcmden v. Lana' Prep, lnc., 918 A.2d 1098, 1100-01 (Del. Supr. 2007); Munyan v. Daimler
Chrysler Corp., 909 A.2d 133, 136 (Del. Supr. 2006).

8

of marijuana as medicine and the normal medical practice of experimenting with
pain relief. The employer contends there is no space for the patient to experiment
with dosages and medications But doing so is completely reasonable and necessary
in the field of medicine generally when prescribed by a doctor.56 The employer
would place a restriction on medical marijuana that would not even be considered if
the drug were, for example, oxycodone. The employer’s argument would vitiate
reimbursement for any rehabilitative effort that was subsequently changed in favor
of a different treatment.

lt may well be that as the science of medical marijuana develops, there will
develop a more precise dosage and modality for specific symptoms that would
permit a more limited range of prescribed dosages. But given the novelty of medical
marijuana and the statutorily authorized dosage parameters set by the General
Assembly, the Court cannot conclude that the Board abused its discretion in
requiring the employer to reimburse the claimant for his experimentation phase of
this new treatment.

The employer’s other complaint is more straightforward The testimony at
the hearing included that of the claimant himself, who described a trip to the

marijuana dispensary.37 It appears that there is a fairly ritualized process necessary

 

56 Op. below at 23.

37 R. at 125_133.

to get into that portion of the dispensary that actually contains medical marijuana in
all of its many available forms.38 As Mr. Kalix described it, once the patient makes
his selection, it is packaged and brought to the checkout counter at which point he
pays for it.39 He testified that he paid for all of it, with his money, and none of it
was reimbursed by the insurance company.40 A detailed “customer history” of all
of his purchases at the dispensary, including the date, time, product, discounts, and
total was included for the Board’s consideration.41

None of this was controversial at the time the testimony was received. But
after the hearing, the employer claimed that the customer history log was insufficient
evidence to show that Kalix had actually paid the amounts shown in the ledger.42
And since the employer’s obligation to reimburse does not arise until the expense is
incurred, the employer argued in post hearing briefing that Kalix had not shown an

actual expense.43

 

38 R. at 125.

39 R. at 127.

40 R. at 132_33.

41 Pl.’s “Claimant’s Exhibit 2 - Customer History”.
42 Def.’s Mot. for Reargument at 3_4.

43 19 De|.C. § 2322; Guy.[ Johnson Transp. C0. v. Dunkle, 1988, 541 A.2d 551.

10

The employer contends that a debtor’s ipse dixit that a payment has been made
improperly relieves the debtor of any burden to prove it.44 The simple answer is that
this is not a debt action and Kalix is not seeking to avoid payment by arguing
satisfaction of the debt. Second, the employer says that there was no support in the
record that the dispensary operates on a “cash and carry” basis other than the
claimant’s say-so.45 But neither was there any evidence that it does not operate on
a cash and carry basis, as testified to by the claimant. The Board was empowered to
credit the claimant’s testimony, and it did so.46 Finally, the employer complains that
the customer history was only a history of what was billed, not a history of what was
paid.47 But Kalix testified that he paid the bills as he purchased the marijuana on
each of his trips to the dispensary.48 Certainly copies of bank statements or credit
card payments might have further proven the actual making of the payments

evidenced by the customer history, but Kalix’s own testimony, coupled with the

 

44 Def.’s Mot. for Reargument 3_4.

45 Id.

46 Board’s order at 2 (9/6/2017).

47 Def.’s Mot. for Reargument at 3_4.

48 R. at 132*33.

11

customer history were also sufficient evidence before the Board such that it could
make the findings of payment without further elaboration.49
Neither at the proceeding below nor here does the employer suggest
who did pay the dispensary, and the Board pointed to 16 Del. C. §4919A, containing
detailed record-keeping requirements to further demonstrate the likelihood that
Kalix had, as he testified, paid the amounts shown in the customer history.50 Thus,
the Board chose to give credence to the testimony of Kalix that he paid the amounts
shown, a completely logical conclusion in the face of no contradictory evidence from
the employer.51 Pointedly, the employer did not attack the accuracy or veracity of
the customer history when it was introduced. Thus, there was no basis for the Board
to question its validity. The employer’s arguments post hoc are a poor substitute for
evidence or testimony that Kalix did not, as he testified, pay the amounts recorded.
CONCLUSIGN

For all of the foregoing reasons, the judgment of the Industrial Accident Board

is AFFIRMED.

IT IS SO ORDERED.

/%M

Charles E. Butler, Judge

 

49 Op. below at 25_26.
50 Board’s Order at 2 (9/6/2017).

51 Id.

12

