Injured worker’s medical marijuana claim ‘goes up in smoke’ at a time when the opioid epidemic continues to make headlines, here in Massachusetts and nationwide. Many doctors have begun prescribing medical marijuana as an alternative to addictive opioids and narcotics for patients suffering with chronic pain. Because of this, marijuana/cannabis/THC pills and edibles are becoming a more mainstream therapy for worker’s compensation injuries. There is a problem however, in that even though medical and recreational marijuana have become legal in many states, including on Cape Cod in Massachusetts, it remains illegal under federal law. This means if a doctor prescribes medical marijuana for an injured worker, the worker’s compensation insurance carrier may have grounds to refuse to pay the claim.

Opioid-Related Overdose Deaths in Massachusetts

According to a recent study by the National Institute on Drug Abuse, Massachusetts was among the top ten states with the highest rates of opioid-related overdose deaths. In 2016, there were 1,821 opioid-related overdose deaths in this State. That is a rate of 29.7 deaths per 100,000 persons, compared to the national rate of 13.3 deaths per 100,000 persons. This is 123 percentage higher, more than double the national average.

With opioids like Fentanyl and Morphine being associated with addiction and lethal overdose, some doctors and practitioners have been substituting medical marijuana for patients dealing with chronic pain. Used in combination with opiate pain killers, marijuana has yielded highly effective results in patients requiring less of the addictive opiates to obtain relief. In some cases, patients can rely solely on medical marijuana for their pain management.

State and Federal Law Conflicts Regarding Injured Employee’s Right to Reimbursement of Medical Marijuana

In a recent case, the Reviewing Board for the Department of Industrial Accidents (DIA) ruled a worker’s compensation insurance carrier could not be ordered to reimburse an injured worker for the cost of obtaining medical marijuana. Writing for the Court, Administrative Law Judge, Martin J. Long, found the Federal Controlled Substances Act preempted the Massachusetts Act for the Humanitarian Use of Marijuana as it prohibits the possession of marijuana even if it is lawfully prescribed by a doctor. Requiring a worker’s compensation insurer to pay for an injured worker’s medical marijuana would be tantamount to asking it to commit a federal crime. The Court held that one person’s right to use marijuana legally under a state law cannot be used to force another party to commit a crime under federal law, in this case a worker’s compensation insurance carrier.

While historically both medical marijuana and recreational marijuana bills have seldom hit the floor of Congress, there has been evidence recently of some potential of legalizing marijuana on a federal level. On the forefront of this movement are Veterans. According to a 2016 study by the National Center for Complementary and Integrative Health published in the Journal of Pain, almost two-thirds of U.S. military veterans said they were in pain and 9.1 percent rated it as severe. Veteran’s Administration (VA) hospitals are operated by the Federal Government and do not cover medical marijuana treatments.

Time will tell.