IN RE: the Claim of Vito BARRETTA (2022)

MEMORANDUM AND ORDER

Appeal from a decision of the Workers’ Compensation Board, filed February 26, 2021, which, among other things, granted claimant's request for a variance.

Claimant, a fire proofer, has an established claim for an occupational disease involving his back, hips, legs and right foot with a date of disablement of July 2, 2014.  Medical treatment was authorized, various proceedings ensued and certain awards were made.  As relevant here, claimant began treating with Jonathan Rudnick – a physician – in June 2017 and, despite engaging in numerous forms of treatment, including surgery, physical therapy and prescription opiates, claimant's pain persisted.  In 2020, Rudnick sought a variance to treat claimant with medical marihuana.  The employer and its workers’ compensation carrier denied the request upon the ground that such treatment was not approved by the federal Food and Drug Administration.  Following a hearing, a Workers’ Compensation Law Judge granted claimant's request for a variance, finding that the requisite burden of proof had been satisfied.  Upon administrative review, the Workers’ Compensation Board affirmed, and this appeal by the employer and the carrier ensued.

The Board's decision was issued the day after this Court decided (Matter of Quigley v. Village of E. Aurora, 193 A.D.3d 207, 142 N.Y.S.3d 636 [2021], lv denied 37 N.Y.3d 908, 2021 WL 4164463 [2021]), finding that coverage for a claimant's medical marihuana expenses under the Compassionate Care Act (see Public Health Law art 33, title V–A) is not preempted by federal law.  In New York, medical marihuana is authorized for the treatment of chronic pain (see Public Health Law §§ 3360[7][a];  3362;  10 NYCRR 1004.2[a][8][xi]).  When warranted, a treating medical provider may seek a variance from the Board's Medical Treatment Guidelines for authorization to utilize medical marihuana (see 12 NYCRR 324.2[a];  324.3[a][1];  Matter of McLean v. Time Warner Cable, Inc., 197 A.D.3d 1371, 1372, 153 N.Y.S.3d 643 [2021];  Matter of Quigley v. Village of E. Aurora, 193 A.D.3d at 214–215, 142 N.Y.S.3d 636).  In doing so, “[t]he burden of establishing the propriety and medical necessity of the variance rests with the claimant's treating medical provider” (Matter of McLean v. Time Warner Cable, Inc., 197 A.D.3d at 1372, 153 N.Y.S.3d 643 [citations omitted]).

Although the record indicates that claimant had already been treating with medical marihuana obtained from out of state, the Board properly authorized the requested variance in the context of prospective treatment (see Matter of McLean v. Time Warner Cable, Inc., 197 A.D.3d at 1373, 153 N.Y.S.3d 643;  Matter of Kluge v. Town of Tonawanda, 176 A.D.3d 1370, 1372, 111 N.Y.S.3d 710 [2019]).  The record confirms that claimant suffers from debilitating, persistent pain that has degraded his health and functional capabilities.  He has explored numerous treatment options, including surgery, physical therapy, a TENS unit, massage therapy and multiple prescriptions, including opiates, with limited success.  Claimant's treating physician pointed to a history of using medical marihuana that “help[ed] his pain and function.”  He reported that the plan was “to address chronic pain issues and opiate titration and ․ decrease opiates in the future.”  In our view, these factors provide substantial evidence for the Board's decision to grant the requested variance (see Matter of McLean v. Time Warner Cable, Inc., 197 A.D.3d at 1373, 153 N.Y.S.3d 643;  Matter of Quigley v. Village of E. Aurora, 193 A.D.3d at 215–216, 142 N.Y.S.3d 636).

ORDERED that the decision is affirmed, without costs.

Lynch, J.P.

Clark, Pritzker, Ceresia and McShan, JJ., concur.