Andrew Panaggio suffered a workrelated injury to his lower back in 1991. A permanent impairment award was 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.

Panaggio purchased medical marijuana and submitted his receipt to the workers’ compensation insurance carrier for reimbursement. The carrier, CNA Insurance Company, denied payment on the ground that “medical marijuana is not reasonable/necessary or causally related” to his injury. A hearing officer and the board agreed with the denial.

A majority of the board upheld the carrier’s refusal to reimburse Panaggio. It noted that the statutory language of the Cannabis law 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. And concluded that “the carrier is not able to provide medical marijuana” because such reimbursement is “not legal under state or federal law.”

The Supreme Court of New Hampshire disagreed, and reversed in the case of Appeal of Andrew Panaggio.

It noted 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”).

But “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.”

“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.”

The case was remanded to the board for a determination of the issue of the federal criminal issues in the first instance.