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Focus on Workers Comp: Who Pays for Medical Marijuana?
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Focus on Workers Comp: Who Pays for Medical Marijuana?

Daniel Wright suffered a knee injury in 2012, resulting in a permanent total disability. Despite years of treatment, he continued to suffer from pain, insomnia and twitching. Standard treatment through opioids was ineffective and carried the specter of addiction. So his doctor wrote him a prescription for medical marijuana. The results were impressive: the pain abated, his sleep improved and the twitching ceased. His anxiety and anger subsided. For Wright, medical marijuana was great medicine.

As a prescribed medication, the marijuana would be covered by the workers comp policy, right?

Central Mutual Insurance, an A rated comp carrier based in Van Wert, Ohio, declared that it would be illegal to pay for the medication. Citing the federal Controlled Substances Act (AKA “the war on drugs”), under which marijuana is still an illegal substance, and the Federal Drug Administration, which has never approved the medical use of marijuana, Central Mutual argued that in paying for the marijuana they would be in violation of the CSA and interstate commerce statutes. Indeed, paying for the prescription would be aiding and abetting a violation of federal law and expose the carrier to criminal prosecution. Yikes!

Federal versus State

Federal prosecution may seem unlikely, but the carrier’s assessment of the risk is apparently correct. Under the Supremacy Clause of the U. S. Constitution, federal law is the “supreme law of the land” and supersedes any state statute. So despite the MA “Act for the Humanitarian Use of Marijuana” and despite the fact that workers comp is strictly a state-based program, the MA Department of Industrial Accidents determined that the carrier could not be compelled to pay for medical marijuana. Beyond that, the ruling makes it clear that no carrier in MA will be required to pay for the prescribed medication.

Holding the Bag

Workers comp provides medical care at no cost to injured workers. There are no “out of pockets” as long as treatments are required for the work-related injury. Clearly, Wright has a legitimate need for medical marijuana. Nonetheless, it appears that when it comes to paying for the prescription, he is left holding the bag. The irony, of course, is that a prescription for opioids – addictive and ineffective though they may be - would likely be covered by insurance.

Jon Coppelman
Senior Workers Compensation Consultant

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