2017-0469, Appeal of Andrew Panaggio

“marijuana” to be interchangeable for purposes of this appe al. term “medical marijuana.” For ease of reference, we consider the terms “cannabis” and RSA chapter 126 - X is titled “Use of Cannabis for Therapeutic Purposes.” The board used the 1

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

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

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

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

(New Hampshire Compensation Appeals Board) APPEAL OF ANDREW PAN AGGIO

No. 2017 - 0469 Compensation Appeals Board

http://www.courts.state.nh.us/supreme. release. The direct address of the court's home page is: Opinions are available on the Internet by 9:00 a.m. on the morning of their be reported by e - mail at the following address: reporter@courts.state.nh. us. order that corrections may be made before the opinion goes to press. Errors may Charles Doe Drive, Concor d, New Hampshire 03301, of any editorial errors in are requested to notify the Reporter, Supreme Court of New Hampshire, One as formal revision before publication in the New Hampshire Reports. Readers NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as well 2

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

them as well. medical treatment just as health insurers do,” sub section 3, III(a), applies to statute, the board concluded that, because such carriers “provide payments for workers’ compensation insurance carriers are not expressly identif ied in the subject to crimina l prosecution under federal law.” Although noting that that the clear purpose of the statute is “to protect such providers from being RSA 1 p. 2 26 - X:3, III (a) (2015) bars Panaggio’s request for reimbursement, finding therapeu tic use of cannabis,” RSA 126 - X:3, III(a), t he board determined that assistance program to be liable for any claim for reimbursement for the require . . . [a]ny health insurance provider, health care plan, or medical the statutory language that “[n]othing in this chapter shall be construed to penalties for the possession of cannabis.” (Quotation o mitted.) Relying upon that RSA chapter 126 - X “does not exempt a person from federal criminal crime,” and that the registry ide ntification card issued by the S tate explains T he board observed that “possession of marijuana is still a federal

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

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

reasonable/necessary or causally related” to his injury. T he carrier denied payment on the ground that “medical marijuana is not his receipt to the workers’ compensation insurance carrier for reimburse ment. 1 p. 2 26 - X:4 (Supp. 2018). Panaggio purchased medical marijuana and submitt ed issued him a New Hampshire cannabis registry identification c ard. See RSA Panaggio qualified as a patient in the therapeutic cannabis program, and Hampshire Department of Health and Human Services determined that negative si de effects from taking prescribed opiates. In 2 016, the New continues to suffer ongoing pain as a result of his injury and has experienced approved in 1996, and in 1997 he received a lump - sum settlement. Panaggio p. 3 3

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

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

statutory interpretation de novo. Id. Appeal of N.H. Dep’t of Corrections, 162 N.H. 750, 75 p. 3 3 (2011). We review its RSA 541:13. Thus, we review the board’s factual findings deferentially. See fact properly before it are deemed to be prima facie lawful and reasonable. S ee of Fay, 150 N.H. 321, 324 (2003). All findings of the board upon questions of burden of demonstrating that the board’s decision was erroneous. See Appeal N.H. 177, 180 (2016); see RSA 541:13 (2007). The ap pealing party has the the evidence, we find it to be unjust or unreasonable. Appeal of Phillips, 169 board’s decision absent an error of law, or unless, by a clea r preponderance of possession of marijuana is illegal under federal law. We will not disturb the RSA 126 - X:3, III, and when it based its decision in part on the fact that On appeal, Panaggio argues that the board erred in its interpretation of

appeal followed. have been listed.” Panaggi o unsuccessfully moved for reconsideration, and this had wanted to include workers’ compensation [insurers], these insurers could supported by a “simple reading of the law’s language” and “[i]f the legislature the m ajority’s interpretation of RSA 126 - X: p. 3 3, III, reasoning that it was not reimbursement to the claimant would violate.” In addition, he disagreed with “cites no specific section of the Federal Controlled Substances Act that [carrier] complicit in this legal violation,” noting that the insurance carrier law . . . [,] requiring the [carrier] to provide reimburse ment would make the p. 4 4

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

legislature did n ot see fit to include. See Appeal of Phillips, 169 N.H. at 180. 281 - A:23, I, it easily could have done so, and we will not add language that the the therapeutic cannabis program from receiving reimbursement under RSA medical marihuana treatment”). Had the legislature intended to bar patients in employer “is not required to reimburse or cause to be reimbursed charge s for out of and in the course of employment, reasonable medical . . . treatment,” an or cause to be furnished, to an employee who receives a personal injury arising Act that “[n]otwithstanding” the requirement that an employer “shall furnish, § p. 4 418.315a (2014) (providing in the Michigan Worker’s Disability Compensation reimbursable under” Florida’s Workers’ Compensation Law); Mich. Comp. Laws Florida’s Medical Use of Marij uana statute that “[m]arijuana . . . is not medical marijuana. See, e.g., Fla. Stat. § 381.986(15) (2017) (providing in compensation insurance carriers from reimburs ing claimants for the cost of We note that statutes in other jurisdictions expressly prohibit workers’

to medical care deemed reasonable under the Workers’ Compensation Law. reimbursement to Panaggio under these circumstances is to deny him his right of the injury may require.” RSA 281 - A:23, I. Thus, the effect of denying injured employee reasonable medical . . . care . .. for such period as the nature employe r ’s insurance carrier “shall furnish or cause to be furnished to an statutory language. Pursuant to the Workers’ Compensation Law, an injury for his reasonable and necessary medical care is to ignore this plain RSA 126 - X: 3, III as barring reimbursement to an employee with a workplace cannabis in accordance with this chapt er.” RSA 126 - X:2, I (2015). To read shall not be. . . denied any right or privilege for the therapeutic use of reimbursement. Importantly, the statute provides that “[a] qualifyin g patient cannabis program, neither does it bar any of those entities from providing marijuana n or require any of the listed entities to participate in t he therapeutic th e statute does not create a right to reimburse ment for the cost of medical therapeutic use o f cannabis.” RSA 126 - X:3, III(a) (emphasis added). Although assistance program to be liable for any claim for reimbursement for the to require . . . [a]ny health insurance provider, health care plan, or medical RSA 126 - X:3, III states that “[n]othing in this chapter shall be construed

statute, we resolve all reasonable doubts in favor of the injured worker. I d. Appeal of Gamas, 1 p. 5 58 N.H. 6 p. 4 46, 648 (2009). Thus, when construing the statute liberally to give the broadest reasonable effect to its remedial purpose. 5

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

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

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

purchasing medica l marijuan a. insurance carrier is prohibited from reimbursing Panaggio for the cost of p. 6 6

F.3d 11 p. 6 63, 1177 (9 th Cir. 2016). medical marijuana laws and who fully comply with such laws. See United States v. McIntosh, 833 Department of Justice from prosecuting individuals who engage in conduct permitted by state subsequently rescinded that policy, since 2015 the federal budget has effectively prohibited the Regarding Marijuana Enforcement, August 29, 2013. Altho ugh Attorney General Sessions Marijuana, October 19, 2009; James M. Cole, Deputy Attorney General, Memorandum: Guidance Memorandum: Investigations and Prosecutions in State s Authorizing the Medical Use of state law authorizing such possession and use. See David W. Ogden, Deputy Attorney General, prosecute individuals whose possession and use of medical marijuana was in compliance with We note that for at least a decade, the Department of Justice had a policy of declining to 2

Appeal of Walker, 144 N.H. 181, 184 (1999) (explaining that w e are “unable to meaningful review. See Appeal of Savage, 144 N.H. 107, 110 (1999); see also discern the basis for the board’s decision sufficient for us to conduct explanation of its reasoning regarding federal law, i t is impossible for us to supports the board’s legal conclusion and fails to provide an adequate Because the board’s order fails to sufficiently articulate the law that

marijuana meets the elements of aiding and abetting as defined in federal law). that employer’s act of subsidizing an employee’s acquisition of medical Bourgoin v. Twin Rivers Paper Co., 187 A.3d 10, 17 (Me. 2018) (determining medical marijuana renders it criminally liable under federal law). B ut see “speculation,” employer’s argument that reimbursing an injured employee for Media, 355 P.3d 850, 858 (N.M. Ct. App. 2015) (rejecting, as mere prosecution; t hus, we are left to speculate. See Lewis v. American General 2 circumstances of this case, would expose the insurance carrier to criminal authority for its conclusion, much less identify a federal statute that, under the criminal prosecution unde r federal law.” The board did not cite any leg al X:3, III “is clearly a provision to protect [the carrier] from being subject to stated that “possession of marijuana is still a federal crime” and that RSA 12 p. 6 6 insuranc e carrier “is not able to provide medical marijuana,” the board simply and conclusions of law, separately stated”). However, i n concluding that the shall be in writing or stated in the record” and “shall include findings of fact (providing that “[a] final decision or order adverse to a party in a contested case Town of Tamworth, 160 N.H. 95, 107 (2010); see also RSA 541 - A: 35 (2 007) for a reviewing court to render meaningful review. See Motorsports Holdings v. has made findings that provide an adequate record of its reasoning sufficient Our standard of review of a board’s decisi on presupposes that the board

knowledge that the crime is to be committed” (quotation omitted)). abetting, “[m]ere association with the principal . . . is insufficient, even with Rodriguez - Du ran, 50 p. 7 7 F.3d 749, 758 - 59 (1st Cir. 2007) (to prove aiding and and intended to facilitate the commission of the crime); United States v. defendant committed overt acts or affirmative conduct to further the offense, 1994) (to establish aiding and abetting, the government must prove that the achieve an illegal purpose); United States v. Dolt, 27 F.3d 235, 238 ( p. 6 6th Cir. government must prove that there was an agreement among the defendants to 7

HI CKS, HANTZ MARCONI, and DONOVAN, JJ., concurred.

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