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Appeal of Panaggio

Supreme Court of New Hampshire

March 7, 2019

APPEAL OF ANDREW PANAGGIO (New Hampshire Compensation Appeals Board)

          Argued: June 14, 2018

         Compensation Appeals Board

          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 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 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 statute liberally to give the broadest reasonable effect to its ...


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