For decades, Gaetan Bourgoin visited one specialist after another in hopes of easing the crippling pain of a 1989 paper mill injury.
World-renowned clinics from Minnesota to Florida to Connecticut prescribed heavy narcotics like fentanyl, oxycodone and morphine to help the 29-year-old machine operator at Fraser Papers in Madawaska recover from a back injury. But over the years, the burning pain and spasms in his lower back and legs only got worse, leaving him unable to work, hooked on painkillers and on the brink of suicide.
AT A GLANCE
Maine passed its first medical cannabis law in 1999, allowing patients to grow their own plants. Ten years later, Maine voters amended the law to allow for dispensaries, which has led to a major expansion of the market. Today, medical marijuana:
• Generates about $23.6 million a year in sales.
• Is supported by eight dispensaries.
• Is connected to 3,000 caregivers.
• Serves about 37,000 patients a year.
In 2012, at his doctor’s suggestion, Bourgoin turned to medical marijuana as a last resort. He’d never smoked tobacco, much less marijuana. To his surprise, he found some relief. He still has pain, but now it’s bearable. The pot distracts and relaxes him. He will never return to his old job, but now, after a few tokes on a vaporizer, Bourgoin can watch TV, go to the store and sleep through the night, all without narcotics.
“This was something that I hadn’t tried,” he said. “And it worked. And I was so happy. I thank God that I finally had something that could help.”
But who will pay for Bourgoin’s medical marijuana? That question could be answered in a landmark court case that will be heard by Maine’s highest court in September. Regulators say Bourgoin v. Twin Rivers Paper Co. could have a profound impact on Maine’s medical marijuana program – as well as its burgeoning recreational market – and add to a growing state-by-state patchwork of medical marijuana laws and rulings. It could also have repercussions on Maine’s workers’ compensation laws.
Bourgoin wants the mill, now owned by Twin Rivers Paper, to cover his medical marijuana tab, just like it used to pay for his narcotics. Receipts show that Bourgoin, now 58, spends $300 to $400 a month to buy an ounce and a half of one of the more potent medical strains, like Ice or Cannatonic, from Safe Alternatives of Fort Kent, one of Maine’s eight state-licensed dispensaries. By comparison, Bourgoin’s opioid prescription costs were often more than $2,300 a month.
But Twin Rivers and its workers’ compensation insurance company, Sedgwick Claim of Memphis, don’t want to pay for Bourgoin’s pot.
OBJECTIONS RAISED BY INSURER
They question the legitimacy of a medical marijuana certification issued over the phone, after a single conversation but no examination. They don’t like the cash-only transactions (a practice necessitated by bankers’ aversion to serving an industry deemed illegal by federal authorities), the hand-written dispensary receipts or the lack of a doctor’s prescription for a particular strain, potency or amount of marijuana. Without a federal fee schedule, they don’t even know how much to pay for the marijuana.
In court filings, they repeatedly refer to how Bourgoin describes the effects of the medical marijuana: “I have all these little sparks in my head.”
Their biggest complaint, however, is that employers and their insurance companies shouldn’t be forced to cover the cost of a drug that is still illegal under federal law. Although Maine is one of 29 states that have passed medical marijuana laws, federal authorities still group cannabis with drugs like cocaine and heroin, in a category that is deemed to have no currently accepted medical use.
The Maine Workers’ Compensation Board has sided with Bourgoin, ordering Twin Rivers to pay the reimbursement. The administrative judge, Thomas Pelletier, concluded medical marijuana was a reasonable, proper and necessary treatment for Bourgoin’s chronic pain, which are the three standards set in the state law. He took pains to note that, for Bourgoin, marijuana was more effective than narcotics.
Bourgoin “has experienced significant benefit from medical marijuana,” Pelletier wrote. “Opioids have already been shown to be a failure.” A few pages deeper into his ruling, he wrote about the strong narcotics that Twin Rivers wanted Bourgoin to take instead of medical marijuana: “They have already been tried and they have failed Mr. Bourgoin miserably.”
State officials also noted that Bourgoin’s treatment costs have declined by 88 percent since he switched from narcotics to medical marijuana.
LEGAL CHALLENGES TO MAINE LAW
Like many insurers, Sedgwick is counting on the Supremacy Clause, that part of the U.S. Constitution that says federal law trumps state law, to help it prevail in a higher court. Twin Rivers and Sedgwick appealed to the Maine Supreme Judicial Court, which agreed to consider the case even though it typically hears only 5 percent of the appeals presented before it. Oral arguments are due to begin next month.
Although Maine has had a medical marijuana program since 1999, the workers’ comp board has only had a half-dozen cases of injured workers seeking employer reimbursement for medical marijuana, according to Chairman Paul H. Sighinolfi. The board has ordered five employers to cover the reimbursement, but denied two other injured workers’ claims, records show.
Each decision is based on the specific facts of that case, so it’s too early for insurers, employers or medical marijuana users to draw any kind of conclusion about what the courts will allow in Maine, Sighinolfi said. A review of the cases suggests that judges want to see evidence that a worker has tried other medicines without success before turning to medical marijuana to alleviate pain.
The Bourgoin case will be the first time that Maine’s highest court takes up the issue. While the case is likely to have an immediate impact on labor relations, any broad ruling on the conflict between federal and state marijuana laws could have “profound” consequences for the Maine recreational marijuana market, too, according to Sighinolfi, who is also a lawyer.
Any court ruling that finds Maine’s medical marijuana laws unconstitutional could put the state recreational market in legal jeopardy, he noted.
Marijuana advocacy groups disagree, claiming they don’t see how the state’s medical marijuana law could be declared unconstitutional in this case. The ruling could affect patients and employers, but not the law itself, according to lawyers from the Marijuana Policy Project. Sedgwick may want a “Hail Mary fed-trumps-everything sort of ruling, but that’s not how preemption works,” the group argued.
A spokesman for the Maine chapter, David Boyer, said employers should be “ecstatic” over medical marijuana use in workers’ comp cases.
“Studies and anecdotal evidence have shown that marijuana is an effective medicine, and helps patients wean themselves from much more dangerous and expensive drugs,” he said. “Insurers should be ecstatic about being able to cover medical marijuana since it is safer, effective and more affordable for their clients.”
CONFLICTING FEDERAL GUIDANCE
The debate over medical marijuana in workers’ compensation cases is playing out in courtrooms across the country. The National Council on Compensation Insurance has identified it as one of the biggest challenges facing the industry today. In a report issued this month, the agency cited the Bourgoin case by name as it surveyed the evolving landscape of how insurers are dealing with medical marijuana.
“Until the federal government reclassifies marijuana from its current status or the new administration intervenes and begins enforcing federal laws, it appears that states and state courts will continue to provide a state-by-state patchwork of laws that worker compensation insurers will have to navigate,” according to the conclusion of NCCI’s first installment of The Marijuana Conversation.
Maine is one of five medical marijuana states, including Connecticut, Minnesota, New Jersey and New Mexico, that have required employers to reimburse injured employees for medical marijuana. But some other states have not, including Colorado and Washington, where voters have approved not only medical marijuana programs, but adult-use marijuana use, too.
Earlier this year, both Florida and North Dakota adopted legislation that say medical marijuana is not reimbursable for workers’ compensation.
In Maine, the medical marijuana law shields government medical assistance programs and private health insurers from reimbursing a patient for medical marijuana, but state courts have decided that exemption doesn’t apply to employers and their insurers when it comes to covering medical marijuana in workers’ compensation cases, according to court records.
A RENEWED THREAT OF PROSECUTION?
While the facts of the case remain the same, the political climate has changed since Bourgoin filed his claim in 2012. In Maine, the popularity and public acceptance of marijuana has increased, with voters going so far as to legalize adult-use cannabis in a November referendum. On the federal level, however, the Trump administration has signaled it may crack down on state marijuana markets, including medical ones.
Augusta is a long way from Washington, D.C., but the federal stand on medical marijuana has factored into how Maine judges have ruled in cases like Bourgoin’s. For example, Pelletier concluded that Twin Rivers faced little risk of federal prosecution for reimbursing Bourgoin for his medical marijuana under the Obama administration, which had a hands-off approach to state marijuana programs.
In its latest court filings, however, Twin Rivers noted that it could now, under Attorney General Jeff Sessions, face the very real threat of prosecution as a co-conspirator in a federal drug crime if Maine’s highest court were to compel reimbursement. In May, Sessions wrote a letter to Congress saying marijuana enforcement was a top priority, even in states that have legalized medical or recreational pot.
“There is no question that the current administration has significantly different priorities,” Twin Rivers lawyers noted in a court brief this year.
On the other hand, earlier this month President Trump declared the opioid crisis a national emergency, calling it a “serious problem the likes of which we have never had.” If Twin Rivers and Sedgwick prevail at the Maine supreme court, Bourgoin would likely have no choice but to return to one of the opiates that once drove him, along with thousands of other Americans, to addiction.
“When I was on narcotics, I was in bed all the time and I was like a zombie, I would isolate myself,” Bourgoin told a lawyer during a deposition midway through his five-year legal battle. “Since I’ve been on medical marijuana, I don’t spend that much time in bed during the day, and I’ve been doing a little bit more things. … We go out to eat at restaurants now and I’ll go to the store with my wife. It’s improved my quality of life.”
Penelope Overton can be contacted at 791-6463 or at:
poverton@pressherald.com
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