Does Federal Law Surpass NY State Workers’ Compensation Law

Many people are afraid to commence a workers’ compensation claim due to immigration status.  In New York, the law does not discriminate.  Even if your legal status is in question, you still can qualify for workers’ compensation benefits.  Many insurance carriers do not even ask immigration status of a claimant; however, it is possible that an insurance carrier may inquire.  It is important to know that while some Judges do not allow for this type of questioning others will allow the insurance carrier to inquire about status.  Nevertheless, even if your status is in question, you can still receive workers’ compensation benefits.  

Another hot topic where State and Federal law may conflict in workers’ compensation cases Is medical marijuana. Medical marijuana is covered under NY State Workers’ Compensation. This is made possible through the Compassionate Care Act.  The Compassionate Care Act allows for those with serious health conditions to receive medical marijuana.  Medical marijuana can also be used to help with opioid weaning.  However, since marijuana is still illegal federally, certain guidelines apply.  For instance, federal insurance carriers will not pay for or reimburse for medical marijuana prescribed by a certified doctor.  However, state-based insurance carriers, or self-insured employers have paid to cover the expenses of medical marijuana. This is an ongoing battle being litigated between injured workers and insurance carriers.   

 There is recent case law directing an insurance carrier to reimburse a claimant for prescribed medical marijuana.  Matter of WDF, (2018 NY Work Comp G140803). This case does give direction through that the prescription must be properly requested through a medical variance.  A variance must be submitted by an approved doctor due to medical marijuana not being addressed in the medical treatment guidelines.   Unlike other medication associated with a workers’ comp claim, medical marijuana is not paid for by the insurance carrier prior to picking up medication.  A claimant must pay for the medical marijuana and submit a reimbursement request to the insurance carrier.  Once again federal insurance carriers are not reimbursing for same. 

Besides medical marijuana there are many other prescriptions a medical provider can prescribe to help with serious health conditions.  Many of these medications are controlled substances or opioids.  There are guidelines for each of these medications and what is an approved dosage.  Some of these medications need preapproval.  Preapproval is needed when a medication cannot be found on the NY Workers’ Compensation Formulary.  If a medication is denied the parties, try to reach an agreement on what medication or dosage is appropriate and if not a hearing is requested for a Judge to address. 


New York State Worker’s Compensation laws do allow for some safeguarding when dealing with federal laws. 

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