Employees who use medical marijuana to cope with a work-related injury can’t get reimbursed for it through workers’ compensation, Massachusetts’ highest court held Tuesday.
If workers’ comp insurers had to pay for marijuana, they could in theory be charged with a federal crime since it’s still illegal under federal law to aid or abet someone in using pot, the court said.
“It is one thing to voluntarily assume a risk of federal prosecution” by using pot, Justice Scott Kafker wrote in a unanimous decision, “it is another to involuntarily have such a risk imposed upon you.”
The availability of workers’ comp payments has become a hot issue as medical marijuana continues to be legalized across the country — 33 states and counting. Fueling the trend, injured workers are increasingly turning to marijuana as workers’ comp insurers and boards limit their access to opioids for chronic pain, responding to an addiction crisis that has been ravaged much of the country for years.
“We have an anti-opioid movement, but the court is now taking away the alternative,” complained the worker’s lawyer in this case, Katherine Lamondia-Wrinkle of the Law Office of Thomas Libbos in Springfield, Massachusetts.
Lamondia-Wrinkle represents Daniel Wright, a cable installer who injured his knee stepping off a ladder. Thanks to marijuana, Wright was able to wean himself off opioids and other medications with negative side effects.
But for a lot of people in his situation, without workers’ comp reimbursement, “they won’t be able to afford the benefit,” Lamondia-Wrinkle said in an interview.
Wright claimed that he spent $24,267.86 on marijuana from February 2016 to August 2017.
But the insurer’s lawyer, Leonard Nason of Bedford, Massachusetts, said the fact that pot is still federally illegal simply isn’t the insurance industry’s fault. “Congress could fix that in a second,” Nason told Courthouse News.
When Massachusetts legalized medical pot in 2012, state law said that it didn’t require “any health insurance provider, or any government agency or authority, to reimburse any person for the expenses of the medical use of marijuana.” The court said that a workers’ comp insurer was essentially a health insurer.
Some 22 states that have legalized medical marijuana have similar rules, the court said.
Indeed, Maine’s highest court issued a decision like the one in Massachusetts two years ago. Still, not everyone agrees. Six states have allowed workers’ comp reimbursement at least to some extent, according to a monograph by the Insurance Information Institute.
Those states are Connecticut, Minnesota, New Hampshire, New Jersey, New Mexico and New York.
“The current legal landscape of medical marijuana law may, at best, be described as a hazy thicket,” the monograph states.
Justice Kafker distinguished Tuesday’s ruling from one the court issued three years ago in which it said a company couldn’t fire an employee for using medical marijuana in her free time. In that case the company wasn’t aiding or abetting the employee and thus didn’t face federal prosecution, Kafker wrote.
As of last year, there were more than 60,000 medical marijuana patients in Massachusetts who consumed nearly 1.3 million ounces of pot, according to the state’s Cannabis Control Commission.
One issue that has come up in other states is the fact that there are few guidelines for marijuana dosage, making it harder for workers’ comp insurers to monitor use and make sure it’s appropriate.
“There’s no scientific evidence and no one knows how much is too much or too little,” said Nason.
Only one state, New Mexico, has established a fee schedule. There, one “unit” of pot is considered to be one gram of dry weight equivalent. The maximum reimbursement is $12.02 per unit and workers are limited to 230 units every three months.