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- SJC-12873,
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Daniel Wright v. Central Mutual Insurance Company.
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Alright, Ms.Lamondia Wrinkle-
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Your honor, may I interrupt one moment?
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Yes.
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One point of clarification,
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may we refer to this as section 7B
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(static drowns out speaker).
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For the purposes of making it easier?
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Why don't you
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address that in your argument,
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I'm not sure if I quite get your point right now.
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I'm not quite sure how to answer that.
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We can address that during the course of your argument.
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First, we'll hear from Ms.Lamondia Wrinkle.
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Great, thank you.
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Good morning chief justice and associate justices.
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Thank you for giving me the opportunity this morning
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to bring before you the case of Daniel Wright.
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I am Katherine Lamondia-Wrinkle,
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and I have represented Daniel Wright since 2014.
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Mr. Wright suffered a right knee injury at work
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that's complicated by the development
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of a deep vein thrombosis
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and complex regional pain syndrome,
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a debilitating pain condition.
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He suffered through a range of treatment options
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all to no avail, before discovering medical marijuana.
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He describes his life before that time as filled with pain.
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Since then,
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he has reduced his use and dependence on medication.
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He wants you to know that currently he is a different person
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because of the benefits of medical marijuana.
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He is looking at returning to college and returning to work,
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something he thought unthinkable a few years ago.
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We contend the department of Industrial Accidents
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erred in finding the Controlled Substance Act,
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preempted it from requiring
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Central Mutual Insurance Company from paying for,
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and or reimbursing Mr. Wright for the cost
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of medical marijuana to treat his work related injury.
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The insurer has not contested,
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and the Department of Industrial Accidents still found
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that the use of medical marijuana,
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in the case of Mr. Wright,
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is a reasonable and necessary treatment for his condition.
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His diagnosis of chronic regional pain syndrome
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is the exact type of condition
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the Massachusetts Medical Marijuana Law
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was intended to provide for.
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The purpose of that law melds well
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with the purpose of the Worker's Compensation Act,
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both of which are beneficent acts.
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There are several points we wish to make.
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First, Central Mutual is not a health insurer.
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Most significantly,
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workers in the context of workers compensation claims,
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give up their right to sue their employers
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in the event of negligence, in exchange for those benefits.
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Second, as preemption,
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it exists when there's no direct conflict in the law,
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such as when it is impossible to comply
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with both federal and state law.
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While the CSA, which was passed in 1970,
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made marijuana a class 1 substance,
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the policy memos recently show a lack of federal interest
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in prosecuting marijuana claims,
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unless they are directly related to drug distribution
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and trafficking or manufacturing.
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Moreover, congress in passing it's congressional budgets
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have handicapped the justice department from pursuing states
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that have passed medical marijuana laws.
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This court noted,
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in Barbuto versus Advantage Sales and Marketing,
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that since the enactment of the CSA,
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90 percent of the states have enacted laws
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regarding medical marijuana.
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And, that reflects their determination
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that when lawfully prescribed,
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it has a current accepted medical use and treatment.
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Further, as to preemption, the federal government
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has deferred to states in terms of the practice of medicine
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within their own boundaries.
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Quoting the supreme court from Gonzales versus Oregon,
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"CSA makes no intent to regulate the practice of medicine."
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Which is understandable,
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given the structure and limitations of federalism
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which allows the states great latitude,
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under their police powers, to legislate as to the protection
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of the life, health, comfort and quiet
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of all persons.
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Massachusetts has a compelling interest here,
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particularly in providing medical treatment
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to it's injured workers.
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In the most recent decision from New Jersey,
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Hager versus M and K Construction,
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the superior court of New Jersey, appellate division,
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found that the employers act
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of reimbursing an employee for the purchase
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of medical marijuana, did not violate the CSA.
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As there was no conflict, the employer was not required
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to possess, manufacture or distribute marijuana,
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nor would the employer have the requisite intent
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and active participation needed
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for an aiding and abetting charge.
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Lastly, as to the amicus brief
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filed by American Property Casualty Insurance,
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the focus on that brief seems to be workplace safety,
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and the efficiency of medical marijuana.
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This is not a workplace safety case,
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but rather, the issue is providing significant relief
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for those who were injured,
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such as Mr. Wright with a debilitating pain condition.
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It's also not a challenge to the efficiency of marijuana,
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as the medical marijuana law is already in place.
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And we hope, through our case,
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to extend that benefit to a certain class of individuals,
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such as Mr. Wright.
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In conclusion, we believe that Massachusetts
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should protect Daniel Wright as an injured worker.
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He should not have to pay $25,000 out of pocket
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to advance his own recovery
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to the point where he will be able to return to work.
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We're asking you to afford him the protection
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of the Workers Compensation Act,
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and the Medical Marijuana Law.
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Thank you.
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Okay, Justice Lenk.
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Yes, good morning.
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I'd like to focus on the statute,
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rather than on the federal issue.
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I'd like to focus on the Massachusetts statute
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regarding marijuana.
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And in particular, section 7, limitations on the law.
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Section B, can you hear me?
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Yes, I can.
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Okay.
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Section B says that nothing in this law
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requires any health insurance provider,
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or any government agency or authority,
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to reimburse any persons for expenses
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of the medical use of marijuana.
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So, how can you say our statute somehow is consistent
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with the idea of paying, reimbursing?
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Well, I think first of all,
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it says it doesn't require but, it doesn't prohibit
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the Department of Industrial Accidents
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from awarding that benefit to injured employees.
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So, I think it says it doesn't require,
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but I certainly would argue
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that it's well within the construct
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of the rules and regulations
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of the Department of Industrial Accidents, and it's law,
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to order that as a benefit to injured workers.
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The second part of that,
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is that Central Mutual is not a health insurance carrier,
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and I would argue that-
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But, the government agency
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has authority right?
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The government agency has authority.
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The government agency is the authority
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of the Department of Industrial Accidents, absolutely.
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It doesn't require them to do that.
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But, again, they're not relying on that
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as being the reason why they're not awarding it
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in this particular case.
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I certainly would argue that it doesn't preclude them
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from providing that benefit.
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Okay.
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Let's go to F, nothing in this law
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requires the violation of federal law
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or purports to give immunity under federal law.
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What is your position on whether this insurance,
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the person who would be paying,
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the company that would be paying the benefits,
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would be at risk of being considered to be in violation
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of federal law?
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I look at the New Jersey case
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that just came down, where they talk about
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the fact that the insurance company would be manufacturing,
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wouldn't be distributing.
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And, wouldn't be in any way
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committing any one of those acts.
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They're not in possession of the marijuana.
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They were arguing that they wouldn't have
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the requisite intent and the active participation necessary
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to be charged with aiding and abetting.
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So, I guess our position would be
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that they wouldn't run afoul of the CSA.
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Okay.
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Now, the New Jersey case, is that cited in your brief?
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It was not, it came down after my brief.
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Could we have the citation to it please?
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You certainly can, it's right here.
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If you would hold on for a minute, I would be happy to-
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Or you could do it in a 16L letter
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if you don't want to take your time to do it now.
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Chief, is that alright?
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Chief?
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Yes, why don't you do it
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in the 16L letter, that's the more appropriate form.
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Okay, I do have it in front of me
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but I will do it that way, yes.
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Alright, I'm done with questions, thank you.
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Thank you.
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Justice Gaziano.
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Yes, good morning.
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One question, with respect,
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the CSA is obviously the one statute that applies.
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Then, we have various administrations,
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have federal guidance as to how closely
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they're going to enforce marijuana laws
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in states that allow either medical
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or recreational marijuana.
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But, those can be fleeting, right?
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Because administrations change and DOJ policy changes.
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But, the CSA, like it or not, endures.
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How do you respond to that?
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Yeah, I guess that they can be fleeting.
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But, when you look at the history,
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the act goes back to 1970, we're now in 2020.
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I think things have been fairly consistent
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with respect to the policy
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for the last, oh god, at least 10 years.
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And, we still see congress
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prohibiting the justice department
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from using the funds to go after states.
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And frankly, they haven't at this point.
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We hope to see legislation come down in the very near future
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that just removes this as a class 1 substance altogether.
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But, I think when you look at the tide,
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no matter what administration,
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you're gonna see the changes come in
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where there's gonna be direct legislation
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removing it from schedule 1.
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Right, but whether it's solitary or not,
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whether that's good policy or not,
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is obviously a different issue.
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But, how do we tell a business entity,
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go ahead and violate the law,
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because you probably won't get prosecuted?
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I think that, that goes back to the question
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that I was answering previously.
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Are they really violating the law
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by complying with an order?
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No.
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Because, they're not aiding and abetting,
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and they're not manufacturing, distributing or possessing.
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So, if you approach it from that perspective,
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regardless of what the CSA says,
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they're not violating the law.
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And where does the law help us or hurt
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with regard to banking,
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and how that controversy has played out federally,
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in states that allow recreational medical marijuana?
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I think the easier approach
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would be to require reimbursement,
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so that they're not directly paying for it.
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I think that, that would be the safer-
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Actually, I think I asked a bad question.
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I should rephrase it, I stated wrong.
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I meant, as far as banks that don't want to finance,
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that were scared off of taking marijuana money.
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There was a big controversy over whether or not
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financial institutions would get involved
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in marijuana business, if you remember that.
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How has that played out, if you know?
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I don't know how that's played lately.
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I mean, I guess my gut reaction
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to whether that should be an issue goes to,
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00:11:51.570 --> 00:11:52.960
no, it shouldn't be an issue.
272
00:11:52.960 --> 00:11:56.630
Because, again, those are checks that's cashed.
273
00:11:56.630 --> 00:11:58.260
They're not involved in, again,
274
00:11:58.260 --> 00:12:00.570
the distribution, the manufacturing
275
00:12:00.570 --> 00:12:03.220
and the items that have been set forth
276
00:12:03.220 --> 00:12:07.053
as really being the focus of the CSA.
277
00:12:08.120 --> 00:12:10.850
So, I don't think banks should be concerned
278
00:12:10.850 --> 00:12:13.370
anymore than Central Mutual Insurance Company
279
00:12:13.370 --> 00:12:15.550
should be concerned with violating the CSA.
280
00:12:15.550 --> 00:12:20.137
But, again, I'm not up on where that sort of-
281
00:12:22.185 --> 00:12:23.170
And that was my question,
282
00:12:23.170 --> 00:12:26.070
because I was wondering if we could use that as an analogy
283
00:12:27.150 --> 00:12:28.953
to help us resolve this case.
284
00:12:30.100 --> 00:12:33.350
I think that they stand in the same place
285
00:12:33.350 --> 00:12:34.593
as Central Mutual Insurance,
286
00:12:34.593 --> 00:12:37.840
And, I think that they're just taking checks
287
00:12:37.840 --> 00:12:39.410
and operating a business.
288
00:12:39.410 --> 00:12:41.380
They're not actually engaged in anything
289
00:12:41.380 --> 00:12:43.070
with respect to aiding and abetting
290
00:12:43.070 --> 00:12:46.690
or supplying the marijuana.
291
00:12:46.690 --> 00:12:48.180
And, again, this is all being done
292
00:12:48.180 --> 00:12:50.180
under the legitimacy of an order
293
00:12:50.180 --> 00:12:53.390
from the Department of Industrial Accidents.
294
00:12:53.390 --> 00:12:55.030
Thank you.
295
00:12:55.030 --> 00:12:56.240
Justice Lowy.
296
00:12:56.240 --> 00:12:57.560
Yes, good morning.
297
00:12:57.560 --> 00:13:02.100
In reference to the Barbuto case-
298
00:13:02.100 --> 00:13:03.070
Yes.
299
00:13:03.070 --> 00:13:04.770
In that case, if you know
300
00:13:06.970 --> 00:13:09.620
through Justice's Gants's decision,
301
00:13:09.620 --> 00:13:12.280
there's a claim of handicapped discrimination
302
00:13:12.280 --> 00:13:15.200
in the workplace and an accomodation to medical marijuana.
303
00:13:15.200 --> 00:13:20.200
It seemed an important part of that decision.
304
00:13:20.440 --> 00:13:25.440
That, the employers policy toward drugs in the workplace
305
00:13:28.490 --> 00:13:30.630
wasn't being exposed.
306
00:13:30.630 --> 00:13:33.530
They weren't exposing what might be
307
00:13:34.720 --> 00:13:39.720
a use of marijuana in the workplace or potential prosecution
308
00:13:41.617 --> 00:13:45.080
no matter how theoretical it might be.
309
00:13:45.080 --> 00:13:50.080
They weren't tying their company, their brand,
310
00:13:51.200 --> 00:13:54.210
to the use of marijuana.
311
00:13:54.210 --> 00:13:59.210
Doesn't that suggest that you have an issue
312
00:13:59.340 --> 00:14:02.950
separate and distinct from section 7?
313
00:14:02.950 --> 00:14:05.130
Separate and distinct from the regulation
314
00:14:05.130 --> 00:14:07.230
and separate and distinct from preemption,
315
00:14:07.230 --> 00:14:11.093
as far as requiring reimbursement?
316
00:14:13.750 --> 00:14:16.450
The amicus brief that was filed
317
00:14:16.450 --> 00:14:19.580
focuses on the workplace issues.
318
00:14:19.580 --> 00:14:21.660
And, those are a whole different set of issues
319
00:14:21.660 --> 00:14:24.533
that come to pass with the use of medical marijuana.
320
00:14:25.800 --> 00:14:27.530
I don't think that those are relevant
321
00:14:27.530 --> 00:14:29.220
to the case that's before us.
322
00:14:29.220 --> 00:14:32.220
Because, the issue really, in my case
323
00:14:32.220 --> 00:14:36.660
is providing medical marijuana as a treatment option
324
00:14:36.660 --> 00:14:40.030
for somebody who is totally, and permanently disabled
325
00:14:40.030 --> 00:14:42.640
and suffering from a significant pain condition
326
00:14:42.640 --> 00:14:46.930
that prevents him from going back to work.
327
00:14:46.930 --> 00:14:50.030
It's a treatment option that he should be afforded,
328
00:14:50.030 --> 00:14:52.270
just like everyone else
329
00:14:52.270 --> 00:14:55.620
who has a significant pain condition.
330
00:14:55.620 --> 00:14:59.860
So, this case is so pointed at that one particular issue
331
00:14:59.860 --> 00:15:02.720
that I don't feel that it is a workplace issue
332
00:15:02.720 --> 00:15:05.710
and that's why I feel like the amicus brief
333
00:15:05.710 --> 00:15:09.300
sort of missed the point on what this case was about,
334
00:15:09.300 --> 00:15:13.010
versus what they were writing about.
335
00:15:13.010 --> 00:15:14.940
Thank you very much, that's all I have.
336
00:15:14.940 --> 00:15:16.530
Justice Budd.
337
00:15:16.530 --> 00:15:18.660
I don't have any questions, thank you.
338
00:15:18.660 --> 00:15:19.493
Thank you.
339
00:15:19.493 --> 00:15:20.710
Justice Cypher.
340
00:15:20.710 --> 00:15:23.289
Now exiting: Leonard Nason.
341
00:15:23.289 --> 00:15:24.122
(beeping)
342
00:15:24.122 --> 00:15:27.850
Good morning, I have a couple questions.
343
00:15:27.850 --> 00:15:29.280
One is related to-
344
00:15:29.280 --> 00:15:30.374
Sorry, Justice Cypher?
345
00:15:30.374 --> 00:15:31.618
Yes?
346
00:15:31.618 --> 00:15:34.260
We appear to have lost Mr. Nason.
347
00:15:34.260 --> 00:15:36.833
Is his colleague on the call?
348
00:15:38.190 --> 00:15:39.480
Yes, I am.
349
00:15:39.480 --> 00:15:40.850
And, your name sir?
350
00:15:40.850 --> 00:15:41.980
James Ramsey.
351
00:15:41.980 --> 00:15:42.813
Okay,
352
00:15:42.813 --> 00:15:46.410
and did he leave because of any particular reason
353
00:15:46.410 --> 00:15:48.200
or do we just need to get him back?
354
00:15:48.200 --> 00:15:49.792
I think we just need to get him back.
355
00:15:49.792 --> 00:15:50.625
Okay.
356
00:15:50.625 --> 00:15:52.480
I suspect he loss his cellphone reception.
357
00:15:52.480 --> 00:15:55.220
Okay, why don't we wait a moment.
358
00:15:55.220 --> 00:15:56.580
I will send him a text.
359
00:15:56.580 --> 00:16:00.798
You can text him and tell him we've lost him.
360
00:16:00.798 --> 00:16:02.965
(statics)
361
00:16:07.881 --> 00:16:10.048
(statics)
362
00:16:23.700 --> 00:16:25.417
He's dialing back in now.
363
00:16:35.562 --> 00:16:37.729
(statics)
364
00:16:52.302 --> 00:16:54.469
(statics)
365
00:18:04.533 --> 00:18:06.450
He's in.
366
00:18:06.450 --> 00:18:08.173
Mr. Nason, are you in?
367
00:18:10.610 --> 00:18:13.213
I've not heard anybody answering the call.
368
00:18:13.213 --> 00:18:16.623
Okay, I suspect they accepted his code.
369
00:18:20.895 --> 00:18:23.380
(statics)
370
00:18:23.380 --> 00:18:24.843
Stating his name, now.
371
00:18:38.857 --> 00:18:40.589
(statics)
372
00:18:40.589 --> 00:18:43.589
Mr. Nason, do we have you?
373
00:18:49.430 --> 00:18:51.597
(statics)
374
00:18:54.142 --> 00:18:56.309
(statics)
375
00:19:02.371 --> 00:19:04.538
(statics)
376
00:19:13.946 --> 00:19:16.113
(statics)
377
00:19:19.933 --> 00:19:22.433
I don't hear anybody answering the call.
378
00:19:25.450 --> 00:19:27.803
Trying to clarify, judge, I apologize.
379
00:20:05.543 --> 00:20:08.150
(statics)
380
00:20:08.150 --> 00:20:10.596
Now joining: Leonard Nason.
381
00:20:10.596 --> 00:20:12.780
(beeping)
382
00:20:12.780 --> 00:20:14.020
Okay, sorry.
383
00:20:14.020 --> 00:20:15.530
Justice Cypher.
384
00:20:15.530 --> 00:20:17.210
Oh sure, thank you.
385
00:20:17.210 --> 00:20:18.700
Welcome back.
386
00:20:18.700 --> 00:20:22.900
My question relates to other penalties that a state could-
387
00:20:22.900 --> 00:20:25.296
Now exiting: Leonard Nason.
388
00:20:25.296 --> 00:20:26.216
(beeping)
389
00:20:26.216 --> 00:20:28.327
(laughing)
390
00:20:28.327 --> 00:20:29.160
Uh-oh.
391
00:20:29.160 --> 00:20:30.413
Does he have a landline?
392
00:20:31.630 --> 00:20:32.730
He does not.
393
00:20:33.730 --> 00:20:35.880
Then he's calling from Lexington?
394
00:20:37.080 --> 00:20:39.326
Yeah, he has more than one cellphone though.
395
00:20:39.326 --> 00:20:42.970
I've asked him to use the other cellphone if this happened.
396
00:20:44.650 --> 00:20:47.930
It's a telephone call, not...(laughs)
397
00:20:47.930 --> 00:20:50.726
Right, but, in his defense chief,
398
00:20:50.726 --> 00:20:53.790
I don't have a landline either.
399
00:20:53.790 --> 00:20:55.080
Right, I understand,
400
00:20:55.080 --> 00:20:58.980
but I mean, generally, we're not talking about...
401
00:20:58.980 --> 00:21:00.179
Oh I see, you're not far away.
402
00:21:00.179 --> 00:21:01.480
anything more sophisticated
403
00:21:01.480 --> 00:21:02.900
than a telephone call.
404
00:21:02.900 --> 00:21:03.733
Right, right.
405
00:21:03.733 --> 00:21:05.470
Well, I had this problem yesterday.
406
00:21:05.470 --> 00:21:06.440
I know, but you were back
407
00:21:06.440 --> 00:21:09.830
in about a minute so...(sighs)
408
00:21:14.120 --> 00:21:14.953
Mr. Ramsey,
409
00:21:14.953 --> 00:21:16.760
does he realize he's off again?
410
00:21:16.760 --> 00:21:18.070
Yes, I just sent a text
411
00:21:18.070 --> 00:21:20.230
telling that he's off again.
412
00:21:36.500 --> 00:21:38.390
He just replied,
413
00:21:38.390 --> 00:21:41.443
it was not his phone, it just simply ended the call.
414
00:21:42.627 --> 00:21:44.777
So, I asked him to use the other cellphone.
415
00:21:46.820 --> 00:21:49.267
Now joining: Leonard Nason.
416
00:21:49.267 --> 00:21:50.920
(beeping)
417
00:21:50.920 --> 00:21:51.753
Okay.
418
00:21:51.753 --> 00:21:52.973
Now justice Cypher, go ahead.
419
00:21:54.320 --> 00:21:56.200
Okay, thank you.
420
00:21:56.200 --> 00:21:57.640
I understand there's some concern
421
00:21:57.640 --> 00:21:59.459
about the individuals being prosecuted,
422
00:21:59.459 --> 00:22:04.459
or the agency or something, if they violated federal law
423
00:22:06.830 --> 00:22:08.330
or were perceived to.
424
00:22:08.330 --> 00:22:10.360
But, beyond that, there are other penalties
425
00:22:10.360 --> 00:22:11.640
that, should the federal government
426
00:22:11.640 --> 00:22:15.820
decide that Massachusetts is not conforming
427
00:22:15.820 --> 00:22:18.410
with the federal law, that they could impose on the state.
428
00:22:18.410 --> 00:22:21.200
Has any contemplation been given to that?
429
00:22:21.200 --> 00:22:22.550
Or has anybody discussed that
430
00:22:22.550 --> 00:22:24.090
in any of the cases you've read?
431
00:22:24.090 --> 00:22:28.630
I mean, they could withhold funding for things,
432
00:22:28.630 --> 00:22:30.020
they're all sorts of other kinds,
433
00:22:30.020 --> 00:22:32.840
grants could be withheld if we're not in compliance.
434
00:22:32.840 --> 00:22:36.210
So, my concern is something a little bit broader
435
00:22:36.210 --> 00:22:39.340
than the individuals involved or the agency involved.
436
00:22:39.340 --> 00:22:41.110
The only thing that I read on that
437
00:22:41.110 --> 00:22:43.130
says that the federal government
438
00:22:43.130 --> 00:22:45.700
has taken no action against any of the states
439
00:22:45.700 --> 00:22:47.860
that have enacted medical marijuana laws,
440
00:22:47.860 --> 00:22:52.120
and any of the states that have permitted
441
00:22:52.120 --> 00:22:54.880
or required workers compensation carriers
442
00:22:56.155 --> 00:22:59.090
to reimburse employees from medical marijuana.
443
00:22:59.090 --> 00:23:03.610
So, the suggestion is that they're not gonna enforce it
444
00:23:03.610 --> 00:23:06.730
and that's consistent with, you know, the policy memos
445
00:23:06.730 --> 00:23:09.303
and everything else that's come out at this point.
446
00:23:11.690 --> 00:23:14.530
It appears that everyone's accepting it
447
00:23:14.530 --> 00:23:16.990
as a legitimate medical treatment
448
00:23:16.990 --> 00:23:18.810
when it's prescribed by a doctor.
449
00:23:18.810 --> 00:23:20.933
So, I haven't found anything,
450
00:23:22.210 --> 00:23:24.380
with respect to the federal government,
451
00:23:24.380 --> 00:23:29.348
taking any negative action towards the states that are-
452
00:23:29.348 --> 00:23:32.640
But it has been contemplated and discussed
453
00:23:32.640 --> 00:23:35.570
and thought about by other people, is that right?
454
00:23:35.570 --> 00:23:37.250
Seems that way, yes.
455
00:23:37.250 --> 00:23:40.160
Okay, my other question is,
456
00:23:40.160 --> 00:23:42.680
why is this not something
457
00:23:42.680 --> 00:23:44.550
that the legislature should just address
458
00:23:44.550 --> 00:23:45.510
and say that it's okay?
459
00:23:45.510 --> 00:23:46.493
Why is it us?
460
00:23:47.510 --> 00:23:49.690
Well, I think the legislature
461
00:23:49.690 --> 00:23:52.760
has already addressed the use of medical marijuana.
462
00:23:52.760 --> 00:23:55.280
So, that has been determined
463
00:23:55.280 --> 00:24:00.280
that it can be prescribed for legitimate medical purposes.
464
00:24:00.290 --> 00:24:04.610
The Workers Compensation Act awards benefits
465
00:24:04.610 --> 00:24:07.020
to injured workers, medical benefits,
466
00:24:07.020 --> 00:24:10.883
for all sorts of conditions.
467
00:24:11.830 --> 00:24:13.670
Okay, along those lines then,
468
00:24:13.670 --> 00:24:14.900
if I can interrupt for a moment,
469
00:24:14.900 --> 00:24:16.700
what about insurance carriers
470
00:24:16.700 --> 00:24:19.130
where sometimes there's a prescribed medication
471
00:24:19.130 --> 00:24:22.640
that an insurance company does not want to cover directly,
472
00:24:22.640 --> 00:24:25.246
but you can apply for reimbursement for that?
473
00:24:25.246 --> 00:24:28.130
Would this also be in that kind of category?
474
00:24:28.130 --> 00:24:30.880
That, if a patient was prescribed medical marijuana,
475
00:24:30.880 --> 00:24:33.070
they could apply it to their insurance carrier
476
00:24:33.070 --> 00:24:37.563
for reimbursement outside of workers compensation?
477
00:24:38.930 --> 00:24:42.120
Generally not, because what happens,
478
00:24:42.120 --> 00:24:44.580
in the context of a workers compensation claim,
479
00:24:44.580 --> 00:24:47.230
a health insurer won't step up and pay for anything-
480
00:24:47.230 --> 00:24:49.410
Right, I understand that.
481
00:24:49.410 --> 00:24:52.470
I'm saying, let's move out of the workers comp world
482
00:24:52.470 --> 00:24:55.960
and into everybody else's life who's non workers comp,
483
00:24:55.960 --> 00:24:58.330
and say they're prescribed it for pain,
484
00:24:58.330 --> 00:25:01.750
and they want to get reimbursed in their insurance company.
485
00:25:01.750 --> 00:25:06.500
Why shouldn't they, in similar circumstances?
486
00:25:06.500 --> 00:25:09.113
Wouldn't there be a fair argument
487
00:25:09.113 --> 00:25:11.410
that we should do that also?
488
00:25:11.410 --> 00:25:13.570
Well, that may be an argument,
489
00:25:13.570 --> 00:25:15.470
but right now you've got that language
490
00:25:15.470 --> 00:25:16.820
that says that the health insurers
491
00:25:16.820 --> 00:25:18.860
aren't required to reimburse.
492
00:25:18.860 --> 00:25:21.210
However, that doesn't mean a health insurer
493
00:25:21.210 --> 00:25:22.500
cannot reimburse.
494
00:25:22.500 --> 00:25:24.790
Health insurers could certainly take on that risk,
495
00:25:24.790 --> 00:25:29.223
if it so chose to, but right now they're not required to.
496
00:25:30.500 --> 00:25:32.170
Our case is a little bit different,
497
00:25:32.170 --> 00:25:34.540
because I think, whether you call it a loophole
498
00:25:34.540 --> 00:25:36.260
or whatever you call it,
499
00:25:36.260 --> 00:25:38.570
the Department of Industrial Accidents
500
00:25:38.570 --> 00:25:41.950
can award that benefit, and in this particular case
501
00:25:41.950 --> 00:25:44.100
they found it was reasonable and necessary treatment.
502
00:25:44.100 --> 00:25:46.200
The only reason why they said, we're not gonna do it,
503
00:25:46.200 --> 00:25:48.400
is because of preemption
504
00:25:48.400 --> 00:25:52.843
and what we feel the CSA prohibits us from doing.
505
00:25:54.500 --> 00:25:55.830
So, workers comp is just different.
506
00:25:55.830 --> 00:25:58.013
And, I tried to make that point early on.
507
00:25:58.013 --> 00:25:59.770
I understand that, I know it's different.
508
00:25:59.770 --> 00:26:03.793
I'm just thinking more about the next case,
509
00:26:04.818 --> 00:26:08.283
or parody with other kinds of medical benefits.
510
00:26:09.920 --> 00:26:12.817
And, again, going back to why is this a case for us
511
00:26:12.817 --> 00:26:14.140
and not the legislature,
512
00:26:14.140 --> 00:26:15.943
have there been any other cases?
513
00:26:16.810 --> 00:26:19.790
I admit, I'm not deeply involved in the workers comp world
514
00:26:19.790 --> 00:26:21.240
as some of my colleagues.
515
00:26:21.240 --> 00:26:24.583
Where we have added benefit?
516
00:26:27.322 --> 00:26:31.800
There have been other cases
517
00:26:33.969 --> 00:26:35.930
where the Workers Compensation act
518
00:26:35.930 --> 00:26:38.230
has been interpreted to require the payment
519
00:26:38.230 --> 00:26:40.450
of medical marijuana.
520
00:26:40.450 --> 00:26:45.040
In those cases, other states: New Mexico, New Hampshire,-
521
00:26:45.040 --> 00:26:46.980
But, I meant in here, no,no,no.
522
00:26:46.980 --> 00:26:49.686
I mean, in Massachusetts, not marijuana-
523
00:26:49.686 --> 00:26:50.519
Oh.
524
00:26:50.519 --> 00:26:51.352
but something else
525
00:26:51.352 --> 00:26:52.230
that wasn't contemplated,
526
00:26:52.230 --> 00:26:54.800
like some new kind of physical therapy.
527
00:26:54.800 --> 00:26:58.120
Have we ever defined the benefit,
528
00:26:58.120 --> 00:26:59.973
the specific kind of reimbursement?
529
00:27:00.840 --> 00:27:01.817
I don't.
530
00:27:01.817 --> 00:27:03.230
To add to the category?
531
00:27:03.230 --> 00:27:05.520
I don't see the court as having done that,
532
00:27:05.520 --> 00:27:08.190
but I see the department itself as having done that.
533
00:27:08.190 --> 00:27:12.930
Has accepted acupuncture, has accepted-
534
00:27:12.930 --> 00:27:16.050
Okay, and that wasn't challenged though, right?
535
00:27:16.050 --> 00:27:17.690
No, it wasn't challenged.
536
00:27:17.690 --> 00:27:20.270
Because, those were probably a little bit easier
537
00:27:20.270 --> 00:27:21.470
to make the determination.
538
00:27:21.470 --> 00:27:23.910
But, they have interpreted at that level,
539
00:27:23.910 --> 00:27:26.300
they have interpreted other types of treatment
540
00:27:26.300 --> 00:27:28.322
as being acceptable.
541
00:27:28.322 --> 00:27:29.155
Okay.
542
00:27:29.155 --> 00:27:31.380
Alright, I'm content, thank you.
543
00:27:31.380 --> 00:27:32.760
Thank you.
544
00:27:32.760 --> 00:27:34.580
Justice Kafker.
545
00:27:34.580 --> 00:27:36.380
I don't understand your argument
546
00:27:36.380 --> 00:27:37.713
about health insurers.
547
00:27:39.010 --> 00:27:40.280
Workers comp system
548
00:27:40.280 --> 00:27:43.643
is a gigantic health insurance for workers.
549
00:27:44.840 --> 00:27:48.090
It provides hundreds and millions of dollars
550
00:27:48.090 --> 00:27:50.193
in health insurance benefits, doesn't it?
551
00:27:51.710 --> 00:27:53.243
To some extent, that's true.
552
00:27:53.243 --> 00:27:55.860
But, it's also a different system
553
00:27:55.860 --> 00:27:58.030
that's bargained for in a different way.
554
00:27:58.030 --> 00:28:01.300
It covers everybody, no matter how they're hurt at work,
555
00:28:01.300 --> 00:28:03.230
whether they bend over to tie their shoe
556
00:28:03.230 --> 00:28:04.800
or whether they fall.
557
00:28:04.800 --> 00:28:06.090
But, to get that benefit,
558
00:28:06.090 --> 00:28:07.221
workers give up their right
559
00:28:07.221 --> 00:28:09.360
to sue their employers for negligence.
560
00:28:09.360 --> 00:28:10.972
So, there's a big bargain-
561
00:28:10.972 --> 00:28:12.522
But, that doesn't...
562
00:28:14.040 --> 00:28:15.720
You're not supposed to have to sue
563
00:28:15.720 --> 00:28:17.860
to get your health insurance either.
564
00:28:17.860 --> 00:28:18.840
You have health insurance,
565
00:28:18.840 --> 00:28:20.360
you're supposed to get health insurance.
566
00:28:20.360 --> 00:28:21.790
I don't understand why the suing
567
00:28:21.790 --> 00:28:23.860
would have anything to do with that.
568
00:28:23.860 --> 00:28:26.373
I think because you give up a right,
569
00:28:27.370 --> 00:28:29.110
you give up a substantial right,
570
00:28:29.110 --> 00:28:32.210
in exchange for workers compensation benefits.
571
00:28:32.210 --> 00:28:34.780
And, you also are limited as to what you can get.
572
00:28:34.780 --> 00:28:36.290
You're paid a disability wage,
573
00:28:36.290 --> 00:28:37.860
and not paid a disability wage
574
00:28:37.860 --> 00:28:41.080
through a traditional health insurance.
575
00:28:41.080 --> 00:28:43.050
So, an employee, if they're out of work,
576
00:28:43.050 --> 00:28:44.693
they get paid something.
577
00:28:44.693 --> 00:28:47.840
Medical treatment is set by a rate setting commission,
578
00:28:47.840 --> 00:28:49.400
sometimes the rates are awfully low,
579
00:28:49.400 --> 00:28:52.150
but that's another story in and of itself.
580
00:28:52.150 --> 00:28:54.110
And, you have an immediate way
581
00:28:54.110 --> 00:28:56.573
to address any type of problems.
582
00:28:58.420 --> 00:28:59.780
By the way, this is a provision
583
00:28:59.780 --> 00:29:01.780
that's in 20 states, right?
584
00:29:01.780 --> 00:29:05.470
This is all over, this was some kind of national model,
585
00:29:05.470 --> 00:29:07.887
this exclusion of health insurance.
586
00:29:07.887 --> 00:29:11.040
And the language, in some of the other states,
587
00:29:11.040 --> 00:29:14.362
expressly references workers comp insurance.
588
00:29:14.362 --> 00:29:15.195
Mmm-hmm.
589
00:29:15.195 --> 00:29:17.563
Arizona, other states, right?
590
00:29:17.563 --> 00:29:18.989
Correct.
591
00:29:18.989 --> 00:29:19.822
So, I'm perplexed.
592
00:29:19.822 --> 00:29:21.040
And, then you suggested
593
00:29:21.040 --> 00:29:23.330
that the health insurer might be at risk
594
00:29:24.223 --> 00:29:25.960
of being prosecuted.
595
00:29:25.960 --> 00:29:28.080
But, the workers comp insurer,
596
00:29:28.080 --> 00:29:30.680
wouldn't they be in the same position
597
00:29:31.940 --> 00:29:33.820
as the banks and everyone else?
598
00:29:33.820 --> 00:29:36.410
I wasn't sure that that's what I said.
599
00:29:36.410 --> 00:29:38.800
I probably was pointing to the fact,
600
00:29:38.800 --> 00:29:42.250
that the statute specifically addresses health insurance
601
00:29:42.250 --> 00:29:46.310
in terms of saying nothing in the law
602
00:29:46.310 --> 00:29:48.010
requires a health insurance provider.
603
00:29:48.010 --> 00:29:50.130
But, I don't think a health insurance provider
604
00:29:50.130 --> 00:29:54.350
would be anymore at risk than a workers compensation insurer
605
00:29:54.350 --> 00:29:55.533
under the CSA.
606
00:29:56.470 --> 00:29:58.420
But, again, I don't get why.
607
00:30:04.030 --> 00:30:06.300
The legislation excludes people
608
00:30:06.300 --> 00:30:09.073
who don't want to be involved in the marijuana world.
609
00:30:09.920 --> 00:30:12.320
It protects those who want to buy it,
610
00:30:12.320 --> 00:30:13.713
those who want to sell it,
611
00:30:15.810 --> 00:30:18.120
but it seems to carve out
612
00:30:18.120 --> 00:30:20.700
health insurers or others
613
00:30:20.700 --> 00:30:24.733
who would be involuntarily drawn into the marijuana world.
614
00:30:25.800 --> 00:30:28.123
Don't we want to respect that distinction?
615
00:30:29.400 --> 00:30:31.560
Well, who are we trying to protect
616
00:30:31.560 --> 00:30:32.710
in all of this?
617
00:30:32.710 --> 00:30:35.790
My position, is that our job really
618
00:30:35.790 --> 00:30:38.490
is to protect the people who need it the most.
619
00:30:38.490 --> 00:30:39.562
And, when we're using medical-
620
00:30:39.562 --> 00:30:41.610
Our job is to enforce the law isn't it?
621
00:30:41.610 --> 00:30:46.610
It's one thing to expose someone to federal oversight
622
00:30:48.591 --> 00:30:53.591
who wants to take this on, who wants to buy the marijuana
623
00:30:54.050 --> 00:30:55.560
or sell the marijuana.
624
00:30:55.560 --> 00:30:59.920
Isn't it another thing, to bring in interstate business-
625
00:30:59.920 --> 00:31:01.920
I mean, this is an interstate company, right,
626
00:31:01.920 --> 00:31:03.641
this insurance company?
627
00:31:03.641 --> 00:31:04.700
Sure.
628
00:31:04.700 --> 00:31:06.353
Where is it headquartered?
629
00:31:08.170 --> 00:31:09.120
I think out in Wisconsin,
630
00:31:09.120 --> 00:31:12.380
but I'd have to let attorney Nason address that.
631
00:31:12.380 --> 00:31:14.883
Is medical marijuana legal even, there?
632
00:31:15.820 --> 00:31:16.653
Is it?
633
00:31:18.690 --> 00:31:20.240
I don't know the answer to that,
634
00:31:20.240 --> 00:31:22.600
I don't think so at this point.
635
00:31:22.600 --> 00:31:24.650
Then, the last question,
636
00:31:24.650 --> 00:31:28.700
you're talking about your person not coming back to work.
637
00:31:28.700 --> 00:31:30.770
But, the whole point of workers comp
638
00:31:30.770 --> 00:31:33.320
is to bring you back to work.
639
00:31:33.320 --> 00:31:34.790
True.
640
00:31:34.790 --> 00:31:37.020
Isn't the next case gonna be someone
641
00:31:37.020 --> 00:31:41.960
who needs medical marijuana to go back to work?
642
00:31:41.960 --> 00:31:45.450
Doesn't that just run right into Barbuto
643
00:31:45.450 --> 00:31:49.133
and our concerns about marijuana in the workplace?
644
00:31:52.410 --> 00:31:54.890
He's permanently and totally disabled, is that right?
645
00:31:54.890 --> 00:31:57.650
Is he a permanent and total disability case?
646
00:31:57.650 --> 00:31:59.330
Sure, yes.
647
00:31:59.330 --> 00:32:00.870
He's not a temporary total,
648
00:32:00.870 --> 00:32:02.586
he's a permanent and total?
649
00:32:02.586 --> 00:32:04.724
Yes.
650
00:32:04.724 --> 00:32:06.900
But the next case, when we have someone
651
00:32:06.900 --> 00:32:10.263
who needs this to get back to work, he's injured his knee.
652
00:32:13.180 --> 00:32:14.390
Are you gonna be suggesting
653
00:32:14.390 --> 00:32:17.213
that he would not be entitled to the marijuana,
654
00:32:18.900 --> 00:32:20.083
but your guy would be?
655
00:32:21.820 --> 00:32:23.810
I'm just saying there's a distinction right now
656
00:32:23.810 --> 00:32:25.580
in the case before you.
657
00:32:25.580 --> 00:32:26.770
The case before you is,
658
00:32:26.770 --> 00:32:31.770
if this offers Mr. Wright some relief and benefit,
659
00:32:32.250 --> 00:32:34.220
I guess, a lot of relief and benefit,
660
00:32:34.220 --> 00:32:36.270
as the department found,
661
00:32:36.270 --> 00:32:39.820
why shouldn't he be entitled to that benefit?
662
00:32:39.820 --> 00:32:41.570
We've sort of let the cat out of the bag,
663
00:32:41.570 --> 00:32:44.090
if we have medical marijuana legislation
664
00:32:44.090 --> 00:32:45.440
where we're saying it can be used
665
00:32:45.440 --> 00:32:47.690
for legitimate medical purposes,
666
00:32:47.690 --> 00:32:51.060
and Mr. Wright's case is a legitimate medical purpose,
667
00:32:51.060 --> 00:32:53.080
then, why can't he get that
668
00:32:53.080 --> 00:32:55.010
through the workers compensation system?
669
00:32:55.010 --> 00:32:57.460
Doesn't that system owe him that?
670
00:32:57.460 --> 00:32:58.670
He was injured at work,
671
00:32:58.670 --> 00:33:01.570
he's done everything he's supposed to do.
672
00:33:01.570 --> 00:33:04.823
So, I'm looking at it as a defined issue right now.
673
00:33:09.510 --> 00:33:10.910
I take it your argument would be
674
00:33:10.910 --> 00:33:14.890
that even if he could, if he were coming back to work,
675
00:33:14.890 --> 00:33:18.700
if marijuana is the best treatment for him,
676
00:33:18.700 --> 00:33:19.880
he should be entitled
677
00:33:19.880 --> 00:33:23.513
to keep getting the marijuana and working?
678
00:33:24.561 --> 00:33:27.840
That may well be the case, again,
679
00:33:27.840 --> 00:33:29.770
I understand that was the issue that came up
680
00:33:29.770 --> 00:33:31.890
in the Barbuto case.
681
00:33:31.890 --> 00:33:34.040
But, the question also then becomes-
682
00:33:34.040 --> 00:33:36.240
it's a much more subtler discussion
683
00:33:36.240 --> 00:33:39.983
in the case of workplace and marijuana use.
684
00:33:41.205 --> 00:33:43.460
And again, I don't see a real distinction
685
00:33:43.460 --> 00:33:45.660
between allowing someone to come back to work
686
00:33:45.660 --> 00:33:46.840
on medical marijuana
687
00:33:46.840 --> 00:33:50.220
and allowing someone to come back to work on narcotics.
688
00:33:50.220 --> 00:33:52.170
There's certain machinery you can't operate,
689
00:33:52.170 --> 00:33:54.000
you can't drive.
690
00:33:54.000 --> 00:33:55.810
So, in those particular cases,
691
00:33:55.810 --> 00:33:57.670
you're gonna have to have that dialogue,
692
00:33:57.670 --> 00:34:00.330
about what's appropriate, in the given case,
693
00:34:00.330 --> 00:34:03.510
given anybody's medication and what they're taking
694
00:34:03.510 --> 00:34:05.397
and what the side effects are gonna be
695
00:34:05.397 --> 00:34:08.650
and medical marijuana shouldn't necessarily be any different
696
00:34:08.650 --> 00:34:11.810
than a discussion about Oxycontin use on the job
697
00:34:11.810 --> 00:34:13.600
or oxycodone use on the job.
698
00:34:13.600 --> 00:34:14.980
And, the last question is,
699
00:34:14.980 --> 00:34:17.950
our U.S. attorney has said
700
00:34:17.950 --> 00:34:22.950
that's he's prepared to prosecute marijuana offenses, right?
701
00:34:24.040 --> 00:34:27.650
Has made public statements to that effect.
702
00:34:27.650 --> 00:34:31.713
Don't we have to (statics) recognize that?
703
00:34:36.270 --> 00:34:40.850
Whether he decides to pick on one of these people or not,
704
00:34:40.850 --> 00:34:44.710
as opposed to someone in the banking field
705
00:34:44.710 --> 00:34:45.893
or something else.
706
00:34:46.740 --> 00:34:49.690
It's jut not as secure, at least here,
707
00:34:49.690 --> 00:34:51.113
given that statement, is it?
708
00:34:52.320 --> 00:34:54.460
I think you also have to look at,
709
00:34:54.460 --> 00:34:58.020
going back to, like we talked about, the New Jersey case,
710
00:34:58.020 --> 00:34:59.730
is it aiding and abetting?
711
00:34:59.730 --> 00:35:01.900
Is it procuring?
712
00:35:01.900 --> 00:35:03.820
Is it distribution?
713
00:35:03.820 --> 00:35:04.740
The New Jersey case
714
00:35:04.740 --> 00:35:06.420
is just a superior court decision,
715
00:35:06.420 --> 00:35:08.080
it's not even an appellate.
716
00:35:08.080 --> 00:35:11.040
It's not the New Jersey supreme court, right?
717
00:35:11.040 --> 00:35:11.873
It is though,
718
00:35:11.873 --> 00:35:15.570
it's the superior court of New Jersey appellate division.
719
00:35:15.570 --> 00:35:17.834
Right, but it's not the top court, right?
720
00:35:17.834 --> 00:35:19.230
Right.
721
00:35:19.230 --> 00:35:21.144
Okay, that's all I have.
722
00:35:21.144 --> 00:35:22.094
Alright.
723
00:35:22.094 --> 00:35:24.220
This is Chief Justice Gants,
724
00:35:24.220 --> 00:35:26.420
let's turn to chapter 152 section 30,
725
00:35:26.420 --> 00:35:29.861
which is, after all, the workers comp provision.
726
00:35:29.861 --> 00:35:31.590
Yes.
727
00:35:31.590 --> 00:35:35.610
I know that there are certain expenses,
728
00:35:35.610 --> 00:35:38.460
which either no health insurer or most health insurers,
729
00:35:38.460 --> 00:35:39.530
do not cover.
730
00:35:39.530 --> 00:35:41.963
I'll use acupuncture as an example.
731
00:35:43.130 --> 00:35:48.130
Under section 30, if an employee uses acupuncture,
732
00:35:51.200 --> 00:35:55.390
is there an obligation of the insurer to pay that
733
00:35:55.390 --> 00:35:58.840
if it's viewed to be a reasonable and necessary service?
734
00:36:01.090 --> 00:36:03.430
That's currently being covered, yes.
735
00:36:03.430 --> 00:36:04.263
Okay.
736
00:36:04.263 --> 00:36:07.643
So, if he had acupuncture and that was viewed inadequate,
737
00:36:08.500 --> 00:36:09.920
the language is, whether it's an adequate
738
00:36:09.920 --> 00:36:11.970
and reasonable healthcare service, correct?
739
00:36:11.970 --> 00:36:12.880
Yes.
740
00:36:12.880 --> 00:36:13.940
So, even though
741
00:36:13.940 --> 00:36:15.710
he could not go to his health insurer
742
00:36:15.710 --> 00:36:17.443
and say, pay for my acupuncture,
743
00:36:19.790 --> 00:36:21.620
the workers comp insurer would be obligated
744
00:36:21.620 --> 00:36:24.110
to pay for acupuncture?
745
00:36:24.110 --> 00:36:25.110
Yes.
746
00:36:25.110 --> 00:36:26.520
Chiropractory?
747
00:36:26.520 --> 00:36:27.353
Yes.
748
00:36:29.430 --> 00:36:31.010
And...trying to think of what other...
749
00:36:31.010 --> 00:36:32.320
Massage therapy.
750
00:36:32.320 --> 00:36:35.157
Massage therapy would also be included?
751
00:36:35.157 --> 00:36:36.574
Yes.
752
00:36:37.580 --> 00:36:40.140
Now, the last sentence of section 30
753
00:36:41.130 --> 00:36:43.180
says, "where services", which I assume
754
00:36:43.180 --> 00:36:46.187
means adequate and reasonable healthcare services,
755
00:36:46.187 --> 00:36:48.540
"are provided to employees under this section.
756
00:36:48.540 --> 00:36:52.080
The reasonable and necessary cost of such services
757
00:36:52.080 --> 00:36:54.297
shall be paid by the insurer."
758
00:36:55.653 --> 00:36:57.350
So, going back to the acupuncture
759
00:36:57.350 --> 00:37:00.290
and massage therapy examples,
760
00:37:00.290 --> 00:37:01.950
if that is viewed to be an adequate
761
00:37:01.950 --> 00:37:03.220
and reasonable healthcare expense,
762
00:37:03.220 --> 00:37:08.220
the insurer is required by state statute to pay it?
763
00:37:08.410 --> 00:37:09.243
Yes.
764
00:37:09.243 --> 00:37:10.100
Even though the health insurer
765
00:37:10.100 --> 00:37:12.160
would have no such obligation?
766
00:37:12.160 --> 00:37:13.550
Correct.
767
00:37:13.550 --> 00:37:14.450
Alright.
768
00:37:17.401 --> 00:37:20.940
And here, is there any spute, or is there...
769
00:37:23.350 --> 00:37:25.320
Trying to go back to the findings made.
770
00:37:25.320 --> 00:37:27.710
Were there findings that the medical marijuana here
771
00:37:27.710 --> 00:37:30.370
was an adequate and reasonable healthcare service?
772
00:37:30.370 --> 00:37:31.640
Yes, there was.
773
00:37:31.640 --> 00:37:33.273
So, under section 30,
774
00:37:34.170 --> 00:37:37.440
there is an obligation to pay that?
775
00:37:37.440 --> 00:37:38.680
Correct, yes.
776
00:37:38.680 --> 00:37:40.880
So, the question is whether or not
777
00:37:45.037 --> 00:37:48.418
it would be a crime to do that?
778
00:37:48.418 --> 00:37:49.251
Yes.
779
00:37:49.251 --> 00:37:50.084
Whether or not the insurer
780
00:37:50.084 --> 00:37:53.167
would be committing a crime to do it.
781
00:37:54.580 --> 00:37:56.460
I guess I'll ask Mr. Nason about that,
782
00:37:56.460 --> 00:37:58.110
but the theory, I guess, would be
783
00:38:02.322 --> 00:38:04.890
that you have to say it'd be conspiracy
784
00:38:04.890 --> 00:38:06.190
or aiding and abetting
785
00:38:07.940 --> 00:38:12.090
when a health insurer who is required by state statute
786
00:38:13.052 --> 00:38:15.230
and arguably required, pursuant to an order
787
00:38:15.230 --> 00:38:18.080
of state supreme court to pay something,
788
00:38:18.080 --> 00:38:21.370
they would, arguably, be found to be conspiring
789
00:38:21.370 --> 00:38:25.590
or aiding and abetting with the worker to use marijuana,
790
00:38:25.590 --> 00:38:28.940
would that have to be the theory of the crime?
791
00:38:28.940 --> 00:38:30.423
That's what I read.
792
00:38:32.080 --> 00:38:36.250
Is there any case anywhere,
793
00:38:36.250 --> 00:38:41.250
where any prosecutor, federally, has made such an argument?
794
00:38:42.730 --> 00:38:47.110
That, where a state supreme court interprets a state statute
795
00:38:47.110 --> 00:38:50.270
that there's an obligation for reimbursement,
796
00:38:50.270 --> 00:38:55.200
that the compliance with that statute
797
00:38:55.200 --> 00:38:59.520
and with that court order or court direction
798
00:38:59.520 --> 00:39:02.770
would be viewed to have the knowledge element involved
799
00:39:02.770 --> 00:39:05.973
in conspiring or aiding and abetting?
800
00:39:07.012 --> 00:39:08.600
I haven't found anything
801
00:39:08.600 --> 00:39:09.900
on the criminal level, no.
802
00:39:11.666 --> 00:39:14.093
Well, if it's not a crime,
803
00:39:15.267 --> 00:39:17.350
the only kind here is that preemption
804
00:39:17.350 --> 00:39:18.990
because of it being a crime, correct?
805
00:39:18.990 --> 00:39:20.840
Correct, yes.
806
00:39:20.840 --> 00:39:22.440
I have no further questions,
807
00:39:22.440 --> 00:39:24.010
does any other justice have any questions?
808
00:39:24.010 --> 00:39:26.860
Yeah I have a follow up, Justice Kafker again.
809
00:39:30.010 --> 00:39:33.127
If it's illegal under federal law,
810
00:39:34.530 --> 00:39:37.310
how is it reasonable and necessary?
811
00:39:37.310 --> 00:39:39.370
Particularly, when there are other drugs
812
00:39:42.670 --> 00:39:43.820
that could serve him.
813
00:39:43.820 --> 00:39:45.393
He may not like them as much,
814
00:39:49.206 --> 00:39:50.350
how is it reasonable?
815
00:39:50.350 --> 00:39:53.143
Anyone said that it's reasonable if it's illegal?
816
00:39:55.240 --> 00:39:57.150
The Department of Industrial Accidents
817
00:39:57.150 --> 00:39:59.783
found that it was reasonable and adequate.
818
00:40:02.045 --> 00:40:03.960
To understand it, I think he received
819
00:40:03.960 --> 00:40:05.830
a significant amount of relief.
820
00:40:05.830 --> 00:40:09.870
It decreased his reliance on narcotic medication
821
00:40:09.870 --> 00:40:13.650
and other medication that had terrible side effects.
822
00:40:13.650 --> 00:40:16.140
There's such a move at the department these days
823
00:40:16.140 --> 00:40:18.910
to move away from all the narcotic medication.
824
00:40:18.910 --> 00:40:22.113
They have all these programs designed to reduce narcotics.
825
00:40:23.010 --> 00:40:26.710
If medical marijuana is one of the ways to move away
826
00:40:26.710 --> 00:40:31.170
from some of the heavier and more negative drugs
827
00:40:31.170 --> 00:40:33.960
then that certainly is a reasonable form of treatment.
828
00:40:33.960 --> 00:40:36.170
And, if it's successful in reducing pain,
829
00:40:36.170 --> 00:40:38.740
then it's certainly an adequate treatment.
830
00:40:38.740 --> 00:40:40.640
Did they actually use those terms,
831
00:40:40.640 --> 00:40:43.473
that it fits that definition?
832
00:40:43.473 --> 00:40:44.760
Yes.
833
00:40:44.760 --> 00:40:48.140
They use that in their analysis?
834
00:40:48.140 --> 00:40:49.490
Yes.
835
00:40:49.490 --> 00:40:50.323
Okay.
836
00:40:55.660 --> 00:40:58.570
The idea that this would not be payable
837
00:40:58.570 --> 00:40:59.440
for health insurance-
838
00:40:59.440 --> 00:41:02.583
I mean, acupuncture is completely legal everywhere.
839
00:41:05.790 --> 00:41:08.330
Any cases in which health insurance
840
00:41:08.330 --> 00:41:12.033
picks up this type of stuff?
841
00:41:13.490 --> 00:41:16.270
This dichotomy between the workers comp system
842
00:41:16.270 --> 00:41:18.390
and the health insurance system.
843
00:41:18.390 --> 00:41:21.300
Are there any cases out there that talk about
844
00:41:21.300 --> 00:41:24.970
that it would be impermissible
845
00:41:24.970 --> 00:41:27.190
to do this under the health insurance,
846
00:41:27.190 --> 00:41:29.790
but it's required under the workers comp?
847
00:41:29.790 --> 00:41:31.690
Any guidance on that?
848
00:41:31.690 --> 00:41:35.080
I'm not even saying it's not impermissible
849
00:41:35.080 --> 00:41:36.480
to do it under health insurance,
850
00:41:36.480 --> 00:41:38.710
just that it doesn't require them to do it.
851
00:41:38.710 --> 00:41:39.970
If Blue Cross and Blue Shield
852
00:41:39.970 --> 00:41:42.993
wants to expand it to it's list, I think it certainly can.
853
00:41:43.950 --> 00:41:47.240
But, the law just says it's not required to.
854
00:41:47.240 --> 00:41:48.580
Maybe I misinterpreted
855
00:41:48.580 --> 00:41:50.470
your back and forth with the chief.
856
00:41:50.470 --> 00:41:52.433
My understanding was, the chief said,
857
00:41:53.570 --> 00:41:55.723
use the example of acupuncture,
858
00:41:58.020 --> 00:42:00.777
they don't have to pay for it under their health insurance.
859
00:42:00.777 --> 00:42:04.664
But, they would be required to do so under workers comp.
860
00:42:04.664 --> 00:42:05.497
Right.
861
00:42:05.497 --> 00:42:07.050
That's news to me,
862
00:42:07.050 --> 00:42:10.343
is there any examples of that anywhere that I can look up?
863
00:42:12.240 --> 00:42:14.680
I just know certain carriers
864
00:42:14.680 --> 00:42:16.150
don't offer acupuncture
865
00:42:16.150 --> 00:42:19.440
as a covered service, even though it's a legal service.
866
00:42:19.440 --> 00:42:21.360
Some health carriers-
867
00:42:21.360 --> 00:42:23.863
But, then it's required then?
868
00:42:25.302 --> 00:42:27.340
The workers comp decisions that say
869
00:42:27.340 --> 00:42:30.973
that it's required to be paid by the workers comp insurer?
870
00:42:31.910 --> 00:42:33.760
Right, if it offers a benefit
871
00:42:33.760 --> 00:42:35.630
and it has a purpose.
872
00:42:35.630 --> 00:42:38.450
There's an analysis to any type of treatment,
873
00:42:38.450 --> 00:42:40.400
even if it's a surgical procedure,
874
00:42:40.400 --> 00:42:44.290
is this employee going to benefit by the procedure?
875
00:42:44.290 --> 00:42:48.410
And, if so, then it's reasonable and adequate care.
876
00:42:48.410 --> 00:42:50.270
We deal with a lot of issues over whether
877
00:42:50.270 --> 00:42:53.580
even a given surgery would be beneficial to an employee
878
00:42:53.580 --> 00:42:57.043
if it's only fifty-fifty chance of success.
879
00:42:58.240 --> 00:43:01.513
All types of treatment has that analysis before the board,
880
00:43:02.990 --> 00:43:05.770
as to whether there's going to be a benefit.
881
00:43:05.770 --> 00:43:08.360
But again, there's case law.
882
00:43:08.360 --> 00:43:11.870
Either workers comp case law or the Nason treatise.
883
00:43:11.870 --> 00:43:14.314
We're gonna be able to find that in somewhere?
884
00:43:14.314 --> 00:43:16.373
I would believe so, yes.
885
00:43:16.373 --> 00:43:17.903
Okay, thank you.
886
00:43:17.903 --> 00:43:19.410
Thank you.
887
00:43:19.410 --> 00:43:22.260
Any further questions, justices?
888
00:43:22.260 --> 00:43:23.093
Okay.
889
00:43:23.093 --> 00:43:26.103
Now, speaking of the Nason treatise, Mr. Nason you're up.
890
00:43:27.960 --> 00:43:30.100
Shall I start my summary?
891
00:43:30.100 --> 00:43:31.610
You may.
892
00:43:31.610 --> 00:43:32.443
Okay.
893
00:43:34.220 --> 00:43:39.220
As you know, section 7 has limitations.
894
00:43:41.500 --> 00:43:43.230
The limitation are, one,
895
00:43:43.230 --> 00:43:46.200
that no health insurer shall be required,
896
00:43:46.200 --> 00:43:50.490
as Central is a health insurer, I submit.
897
00:43:50.490 --> 00:43:54.800
I think it's pretty clear that Central is a health insurer
898
00:43:54.800 --> 00:43:58.490
by health insurance benefits and wage replacement benefits.
899
00:43:58.490 --> 00:44:01.270
It's pretty clear under section 13 and 30
900
00:44:01.270 --> 00:44:04.450
that they are required to pay
901
00:44:04.450 --> 00:44:06.870
feasible and necessary health insurance benefits
902
00:44:06.870 --> 00:44:09.420
including acupuncture and massage therapy.
903
00:44:09.420 --> 00:44:12.820
And, yes, you will find states law in my treatise
904
00:44:12.820 --> 00:44:16.820
that has been taken over by reviewing board judge...
905
00:44:22.042 --> 00:44:24.727
(justice speaking name)
906
00:44:24.727 --> 00:44:25.560
Thank you.
907
00:44:29.230 --> 00:44:32.340
Further, that no government agency or authority
908
00:44:32.340 --> 00:44:34.920
such as the Department of Industrial Accidents,
909
00:44:34.920 --> 00:44:38.340
shall be required to reimburse any person
910
00:44:38.340 --> 00:44:41.430
whether he spends it on medical marijuana.
911
00:44:41.430 --> 00:44:42.610
It's also clear,
912
00:44:42.610 --> 00:44:47.610
that under the CSA controlled substances act,
913
00:44:49.430 --> 00:44:50.640
the federal law,
914
00:44:50.640 --> 00:44:52.890
that the manufacture, distribution, possession,
915
00:44:52.890 --> 00:44:57.200
payment, use of marijuana, is a crime.
916
00:44:57.200 --> 00:44:58.880
There's no exception to that.
917
00:44:58.880 --> 00:45:00.110
And, under the supremacy clause
918
00:45:00.110 --> 00:45:01.909
of the United States Constitution,
919
00:45:01.909 --> 00:45:05.683
the United States shall preempt state law
920
00:45:05.683 --> 00:45:08.350
when a positive conflict presents itself
921
00:45:08.350 --> 00:45:10.520
as it does, in this case.
922
00:45:10.520 --> 00:45:13.530
And, not withstanding a shifting policy position,
923
00:45:13.530 --> 00:45:16.540
of various presidents and the attorney generals
924
00:45:16.540 --> 00:45:18.540
that have served under them,
925
00:45:18.540 --> 00:45:20.990
the law has not changed.
926
00:45:20.990 --> 00:45:23.050
And, the use, sale, possession of marijuana
927
00:45:23.050 --> 00:45:25.723
is still a crime.
928
00:45:25.723 --> 00:45:27.990
Massachusetts recognizes this
929
00:45:27.990 --> 00:45:30.363
and they say so in their limitations.
930
00:45:32.148 --> 00:45:33.260
It expressly stated
931
00:45:33.260 --> 00:45:35.640
that you will not be indemnified and protected
932
00:45:35.640 --> 00:45:40.480
against federal law, in section 7's limitations.
933
00:45:40.480 --> 00:45:45.180
Further, they have said, and the case law has said it,
934
00:45:45.180 --> 00:45:47.090
and you have all been talking about it
935
00:45:47.090 --> 00:45:48.513
for the last 45 minutes,
936
00:45:50.205 --> 00:45:53.783
that Central Mutual does not want to risk being charged
937
00:45:55.540 --> 00:45:57.510
as an aider and abettor
938
00:45:57.510 --> 00:45:59.550
to the commission of a federal crime.
939
00:45:59.550 --> 00:46:01.910
You've also been discussing,
940
00:46:01.910 --> 00:46:03.300
and, I think it's pretty clear
941
00:46:03.300 --> 00:46:05.630
that you all recognize and I believe
942
00:46:05.630 --> 00:46:09.110
that, while you've been discussing
943
00:46:09.110 --> 00:46:12.870
this regular action health insurance,
944
00:46:12.870 --> 00:46:15.730
that they don't want to risk being charged
945
00:46:15.730 --> 00:46:16.890
as aiders and abettors,
946
00:46:16.890 --> 00:46:19.810
which is why they're not voluntarily stepping to the plate
947
00:46:19.810 --> 00:46:23.970
and offering medical marijuana as one of their services.
948
00:46:23.970 --> 00:46:26.050
Despite the fact that many of them don't even offer
949
00:46:26.050 --> 00:46:28.210
massage therapy or acupuncture
950
00:46:28.210 --> 00:46:32.670
as one of their services covered under their policies.
951
00:46:32.670 --> 00:46:37.050
Further, there is no objective scientific evidence
952
00:46:37.050 --> 00:46:42.050
that medical marijuana has any accepted medical use,
953
00:46:42.870 --> 00:46:44.930
nor has any FDA approval.
954
00:46:44.930 --> 00:46:48.383
Further, right off the bat in the limitation section,
955
00:46:49.790 --> 00:46:51.380
Massachusetts recognizes
956
00:46:51.380 --> 00:46:56.270
that marijuana can impair one's ability to drive boats,
957
00:46:56.270 --> 00:46:59.460
drive cars, operate machinery, et cetera.
958
00:46:59.460 --> 00:47:01.380
It does impair one's ability.
959
00:47:01.380 --> 00:47:03.565
Further, the department of Industrial Accidents
960
00:47:03.565 --> 00:47:05.720
has no enforcement power.
961
00:47:05.720 --> 00:47:09.440
So, if an order were to have issued, hypothetically,
962
00:47:09.440 --> 00:47:13.590
in favor or Mr. Wright or if this court were to find
963
00:47:13.590 --> 00:47:15.590
that Mr. Wright is entitled
964
00:47:15.590 --> 00:47:20.330
to be reimbursed medical marijuana by my client,
965
00:47:20.330 --> 00:47:25.330
Central Mutual, then my client would not voluntarily pay it.
966
00:47:29.421 --> 00:47:33.280
The employee would have to take that order
967
00:47:33.280 --> 00:47:35.863
and go to the superior court to have it enforced,
968
00:47:37.480 --> 00:47:39.860
to have Central Mutual pay it.
969
00:47:39.860 --> 00:47:42.190
The likelihood that Cental Mutual will pay it
970
00:47:42.190 --> 00:47:44.250
is slim and none
971
00:47:44.250 --> 00:47:47.470
because they would not want to risk paying it
972
00:47:47.470 --> 00:47:51.610
and then be exposed to criminal prosecution.
973
00:47:51.610 --> 00:47:55.460
And, likewise, Central Mutual would probably turn around
974
00:47:55.460 --> 00:47:58.780
and request reimbursement under section 37,
975
00:47:58.780 --> 00:48:02.650
the Second Injury Fund act, where they have an agreement
976
00:48:02.650 --> 00:48:05.400
with the trust fund to reimburse up to 75 percent
977
00:48:05.400 --> 00:48:07.660
in any benefits they are required to pay
978
00:48:07.660 --> 00:48:09.490
on behalf of Mr. Wright.
979
00:48:09.490 --> 00:48:12.500
And, would request reimbursement through the trust fund
980
00:48:12.500 --> 00:48:14.327
for benefits, including medical marijuana,
981
00:48:14.327 --> 00:48:17.260
should they ultimately have to pay it.
982
00:48:17.260 --> 00:48:20.870
The trust fund, I am sure, would refuse to pay it.
983
00:48:20.870 --> 00:48:24.180
They would also seek an enforcement order
984
00:48:24.180 --> 00:48:25.750
from the superior court.
985
00:48:25.750 --> 00:48:27.700
And guess what, the superior court,
986
00:48:27.700 --> 00:48:28.830
with them being in the position
987
00:48:28.830 --> 00:48:33.290
of violating both the state law and the federal law,
988
00:48:33.290 --> 00:48:34.673
query, what do we do then?
989
00:48:35.990 --> 00:48:38.230
The superior court would be violating the state law
990
00:48:38.230 --> 00:48:40.970
which says, no authority or agency
991
00:48:40.970 --> 00:48:45.970
shall be required to reimburse for medical marijuana
992
00:48:46.600 --> 00:48:50.297
nor shall a health insurer be required to reimburse
993
00:48:50.297 --> 00:48:52.583
for medical marijuana.
994
00:48:52.583 --> 00:48:55.050
That would create one heck of a quandary
995
00:48:55.050 --> 00:48:58.490
for the superior court, for the state agency,
996
00:48:58.490 --> 00:49:03.490
and for the insurer who would be facing a criminal act.
997
00:49:03.510 --> 00:49:04.343
Finally,
998
00:49:06.009 --> 00:49:08.740
the American Property Casualty Insurance Association,
999
00:49:08.740 --> 00:49:10.020
filed amicus brief,
1000
00:49:10.020 --> 00:49:11.760
they've made many of the same arguments
1001
00:49:11.760 --> 00:49:14.540
that Central Mutual has made in this case.
1002
00:49:14.540 --> 00:49:17.220
However, there is one disturbing comment they made
1003
00:49:17.220 --> 00:49:18.931
in page four of their brief.
1004
00:49:18.931 --> 00:49:23.931
They said that if an order or if this court were to find
1005
00:49:26.683 --> 00:49:29.600
that Mr. Wright were entitled to reimbursement
1006
00:49:29.600 --> 00:49:33.570
of medical marijuana under the workers compensation act.
1007
00:49:33.570 --> 00:49:36.080
It could potentially destabilize
1008
00:49:36.080 --> 00:49:38.970
the Massachusetts workers compensation market.
1009
00:49:38.970 --> 00:49:41.360
I can't, specifically, myself,
1010
00:49:41.360 --> 00:49:42.940
say what that means.
1011
00:49:42.940 --> 00:49:47.940
However, if it means that workers compensation insurers,
1012
00:49:47.970 --> 00:49:51.520
health insurers, would leave the state
1013
00:49:51.520 --> 00:49:54.850
or because they don't want to be exposed
1014
00:49:54.850 --> 00:49:59.850
to violating the CSA and be exposed to federal prosecution,
1015
00:50:00.900 --> 00:50:03.350
that would be a tremendous disservice
1016
00:50:03.350 --> 00:50:05.130
to the importers employees
1017
00:50:05.130 --> 00:50:07.790
of the commonwealth Massachusetts.
1018
00:50:07.790 --> 00:50:10.670
And, what I would say in closing
1019
00:50:12.124 --> 00:50:16.410
is, when and or if congress changes the law
1020
00:50:16.410 --> 00:50:20.400
we are all, and when I say "we", I mean the courts,
1021
00:50:20.400 --> 00:50:22.450
are bound by the rule of law
1022
00:50:22.450 --> 00:50:24.700
and we would follow the rule of law
1023
00:50:24.700 --> 00:50:29.590
until the U.S. Congress decides to change that law.
1024
00:50:29.590 --> 00:50:33.730
We are a nation that should be following the rule of law
1025
00:50:33.730 --> 00:50:36.566
and the federal rule of law is that rule of law,
1026
00:50:36.566 --> 00:50:39.310
despite whatever our personal preferences are,
1027
00:50:39.310 --> 00:50:42.030
and until it changes, we have no choice
1028
00:50:42.030 --> 00:50:44.440
but to follow that rule of law.
1029
00:50:44.440 --> 00:50:45.860
Thank you.
1030
00:50:45.860 --> 00:50:48.420
And I'll answer any questions.
1031
00:50:48.420 --> 00:50:50.050
In fact, if you want,
1032
00:50:50.050 --> 00:50:53.127
I anticipated some of the questions with regards to-
1033
00:50:53.127 --> 00:50:55.627
Mr. Nason?
1034
00:50:55.627 --> 00:50:56.819
Yes judge?
1035
00:50:56.819 --> 00:50:58.710
It's time for us to ask questions.
1036
00:50:58.710 --> 00:51:00.470
You may anticipate them, but,
1037
00:51:00.470 --> 00:51:01.890
you're gonna have to wait to hear from them.
1038
00:51:01.890 --> 00:51:04.013
So, Justice Lenk you may proceed.
1039
00:51:05.080 --> 00:51:06.090
I wondered, Mr. Nason,
1040
00:51:06.090 --> 00:51:08.730
whether you are familiar with a case from New Jersey
1041
00:51:08.730 --> 00:51:10.530
that we have not a chance to read
1042
00:51:10.530 --> 00:51:12.143
and apparently has just come out?
1043
00:51:15.747 --> 00:51:17.350
I'm vaguely familiar with it.
1044
00:51:17.350 --> 00:51:21.300
I know that it's not the highest court in that state
1045
00:51:22.410 --> 00:51:25.544
to rule on it, and I'm not intimately familiar with it,
1046
00:51:25.544 --> 00:51:27.290
I must confess.
1047
00:51:27.290 --> 00:51:28.956
Okay, alright.
1048
00:51:28.956 --> 00:51:30.030
Well, the questions that I would ask
1049
00:51:30.030 --> 00:51:32.670
are the ones I think that Justice Gants is gonna pursue,
1050
00:51:32.670 --> 00:51:34.380
so I'm gonna let him do that later.
1051
00:51:34.380 --> 00:51:36.526
I'm not gonna take up any time.
1052
00:51:36.526 --> 00:51:40.802
Justice Gaziano may certainly ask any questions he wants
1053
00:51:40.802 --> 00:51:43.206
as the chief permits it.
1054
00:51:43.206 --> 00:51:44.710
Justice Gaziano.
1055
00:51:44.710 --> 00:51:45.912
Thank you, I have no questions.
1056
00:51:45.912 --> 00:51:47.980
Thank you.
1057
00:51:47.980 --> 00:51:49.180
Justice Lowy.
1058
00:51:49.180 --> 00:51:51.100
Sure, thank you.
1059
00:51:51.100 --> 00:51:56.100
This New Jersey appellate division of the superior court,
1060
00:51:59.330 --> 00:52:03.140
determined that a hypothetical conflict
1061
00:52:05.641 --> 00:52:07.213
of possible punishment.
1062
00:52:08.800 --> 00:52:13.800
Because there is, in fact, a preemption.
1063
00:52:16.270 --> 00:52:21.270
But, doesn't constitute a reason to not reimburse
1064
00:52:23.040 --> 00:52:24.460
for medical marijuana.
1065
00:52:24.460 --> 00:52:27.540
Basically what, if I understand it,
1066
00:52:27.540 --> 00:52:29.330
New Jersey superior court is saying
1067
00:52:32.015 --> 00:52:34.320
is that conflict doesn't suffice to satisfy,
1068
00:52:35.800 --> 00:52:38.500
potential conflict doesn't suffice to satisfy preemption.
1069
00:52:38.500 --> 00:52:41.220
What do you say about the issue
1070
00:52:41.220 --> 00:52:45.020
of the unlikelihood of a prosecution?
1071
00:52:45.020 --> 00:52:47.680
Is the unlikelihood of a prosecution
1072
00:52:48.580 --> 00:52:51.410
enough to say that there's not preemption
1073
00:52:51.410 --> 00:52:54.473
or even that it's really unlikely?
1074
00:52:55.490 --> 00:52:57.410
No, I don't think so
1075
00:52:57.410 --> 00:52:58.970
because then you're talking about
1076
00:52:58.970 --> 00:53:01.030
shifting the winds of policy
1077
00:53:01.930 --> 00:53:04.932
that is made by either the president,
1078
00:53:04.932 --> 00:53:08.270
the attorney general, it doesn't change the fact
1079
00:53:08.270 --> 00:53:10.709
that the law is still on the books.
1080
00:53:10.709 --> 00:53:12.419
The federal law is still on the books,
1081
00:53:12.419 --> 00:53:14.861
and is still the law of the land.
1082
00:53:14.861 --> 00:53:17.688
And is still, the supreme law of the land
1083
00:53:17.688 --> 00:53:19.260
and if there's a positive conflict
1084
00:53:19.260 --> 00:53:22.540
between the state law and the federal law,
1085
00:53:22.540 --> 00:53:25.163
the federal law is gonna win out every single time.
1086
00:53:26.680 --> 00:53:28.503
In fact, by analogy,
1087
00:53:29.460 --> 00:53:33.590
I might bring up judge Joseph's situation
1088
00:53:33.590 --> 00:53:38.590
when she was indicted under the ICE statute.
1089
00:53:39.840 --> 00:53:43.560
Where she actually took positive steps
1090
00:53:43.560 --> 00:53:46.600
to aid and abet an undocumented worker.
1091
00:53:46.600 --> 00:53:50.270
But, she was the first judge since 1786, I believe,
1092
00:53:50.270 --> 00:53:54.290
to have been indicted by an attorney general
1093
00:53:54.290 --> 00:53:57.560
in any state in the commonwealth of Massachusetts.
1094
00:53:57.560 --> 00:54:01.410
That was a policy decision made by president Trump
1095
00:54:01.410 --> 00:54:06.410
down to our attorney general here in Massachusetts
1096
00:54:07.230 --> 00:54:11.370
to indict her as a message, sending a message to our state
1097
00:54:11.370 --> 00:54:15.693
that we can arrest judges for aiding and abetting.
1098
00:54:17.420 --> 00:54:21.070
It never occurred in hundreds of years
1099
00:54:21.070 --> 00:54:23.790
that any judge was indicted.
1100
00:54:23.790 --> 00:54:26.630
It's hypothetical but, it is a mirror image
1101
00:54:26.630 --> 00:54:28.180
of what could happen.
1102
00:54:28.180 --> 00:54:31.210
In our case, it could happen to an insurance company
1103
00:54:32.102 --> 00:54:32.935
and would be-
1104
00:54:32.935 --> 00:54:33.768
Let me ask you this,
1105
00:54:33.768 --> 00:54:36.718
because the chief was asking a couple questions about this.
1106
00:54:39.790 --> 00:54:43.530
Assume that we're dealing with your client
1107
00:54:43.530 --> 00:54:46.090
being a health insurance provider,
1108
00:54:46.090 --> 00:54:47.793
for the purpose of my question.
1109
00:54:50.730 --> 00:54:54.586
Not in terms of asking questions about the regulations
1110
00:54:54.586 --> 00:54:56.403
or section 7B.
1111
00:54:57.720 --> 00:55:00.410
Are they really an active participant
1112
00:55:00.410 --> 00:55:03.260
in the commission of a crime
1113
00:55:03.260 --> 00:55:08.260
if they are following a state court order?
1114
00:55:11.380 --> 00:55:16.380
Would there be some analogy to dress a necessity defense?
1115
00:55:24.930 --> 00:55:27.653
They'd be in a tough position.
1116
00:55:28.510 --> 00:55:31.273
They'd be caught between, basically,
1117
00:55:32.580 --> 00:55:36.563
violating or refusing to abide by a court order.
1118
00:55:38.170 --> 00:55:41.120
And probably, their poor attorney would be held in contempt
1119
00:55:42.870 --> 00:55:44.830
for violating that order.
1120
00:55:44.830 --> 00:55:49.700
Of course their fines, monetarily,
1121
00:55:49.700 --> 00:55:51.770
would significantly mount.
1122
00:55:51.770 --> 00:55:53.420
There would be nothing to prevent
1123
00:55:54.500 --> 00:55:57.957
attorney to charge Central
1124
00:56:00.850 --> 00:56:03.650
with aiding and abetting and providing money
1125
00:56:05.210 --> 00:56:07.160
to interstate commerce.
1126
00:56:07.160 --> 00:56:09.490
Because they'd have to transfer that money
1127
00:56:09.490 --> 00:56:13.180
through the baking system to pay and cut a check
1128
00:56:14.860 --> 00:56:19.093
to Mr. Wright to reimburse him for his medical marijuana.
1129
00:56:19.093 --> 00:56:20.577
That would involve a federal system,
1130
00:56:20.577 --> 00:56:23.480
and that would involve interstate commerce
1131
00:56:23.480 --> 00:56:24.763
and the commerce clause.
1132
00:56:26.010 --> 00:56:30.633
Which would be a violation of (laughs) interest in commerce.
1133
00:56:33.200 --> 00:56:35.540
It would also bring into effect
1134
00:56:39.660 --> 00:56:43.370
Central Mutual's licensing provisions
1135
00:56:44.220 --> 00:56:47.590
to write in all of the states that they write,
1136
00:56:47.590 --> 00:56:50.500
workers compensation and other lines of insurance.
1137
00:56:50.500 --> 00:56:53.051
Alright, he answered my question,
1138
00:56:53.051 --> 00:56:54.760
I have nothing else chief.
1139
00:56:54.760 --> 00:56:56.130
Justice Budd.
1140
00:56:56.130 --> 00:56:58.630
I have no questions, thank you.
1141
00:56:58.630 --> 00:57:00.053
Justice Cypher.
1142
00:57:01.520 --> 00:57:03.576
I have no questions, thank you.
1143
00:57:03.576 --> 00:57:05.300
Justice Kafker.
1144
00:57:05.300 --> 00:57:08.750
I'm confused, because you seem to...
1145
00:57:08.750 --> 00:57:11.760
If we take your argument to it's logical extent
1146
00:57:11.760 --> 00:57:14.970
I take it you're saying the whole system's illegal, right?
1147
00:57:14.970 --> 00:57:19.000
Not just requiring your client to do it,
1148
00:57:19.000 --> 00:57:22.913
you're basically saying all of our medical marijuana laws,
1149
00:57:24.190 --> 00:57:26.570
it's all illegal and unenforceable, right?
1150
00:57:26.570 --> 00:57:28.083
Is that what you're saying?
1151
00:57:30.177 --> 00:57:34.670
As requiring an insurer, yes.
1152
00:57:36.830 --> 00:57:40.920
As requiring any party that does not want to participate
1153
00:57:40.920 --> 00:57:45.270
in the state laws program, yes, I am saying that.
1154
00:57:45.270 --> 00:57:46.103
I believe-
1155
00:57:50.630 --> 00:57:52.130
Are you saying then that the-
1156
00:57:52.130 --> 00:57:55.840
What saves this, is the fact that third parties
1157
00:57:55.840 --> 00:57:59.410
are not being required to participate in this.
1158
00:57:59.410 --> 00:58:01.350
I'm just not sure I understand how that works
1159
00:58:01.350 --> 00:58:03.243
in terms of preemption analysis.
1160
00:58:04.820 --> 00:58:07.937
Well, for example, our state law
1161
00:58:07.937 --> 00:58:10.530
and I think most of the state laws would say
1162
00:58:10.530 --> 00:58:14.030
a physician may, if he or she wants to,
1163
00:58:14.030 --> 00:58:15.860
be a registered physician,
1164
00:58:15.860 --> 00:58:19.210
to prescribe medical marijuana, can do so.
1165
00:58:19.210 --> 00:58:21.990
And be protected under the state law.
1166
00:58:21.990 --> 00:58:26.610
But, they cannot be forced to participate in the program.
1167
00:58:26.610 --> 00:58:30.244
Because it is a federal crime.
1168
00:58:30.244 --> 00:58:34.020
You cannot force them to participate,
1169
00:58:34.020 --> 00:58:37.380
just like you cannot force anybody to participate.
1170
00:58:37.380 --> 00:58:39.600
However, if an individual
1171
00:58:39.600 --> 00:58:43.650
wants to voluntarily take the risk, if you will,
1172
00:58:43.650 --> 00:58:46.700
to buy marijuana, use marijuana,
1173
00:58:46.700 --> 00:58:49.550
be a doctor and prescribe marijuana,
1174
00:58:49.550 --> 00:58:50.420
you can do so.
1175
00:58:50.420 --> 00:58:53.210
And, you will not be prosecuted under state law.
1176
00:58:53.210 --> 00:58:55.780
It does not mean you're immune from prosecution
1177
00:58:55.780 --> 00:58:57.150
under federal law.
1178
00:58:57.150 --> 00:58:59.460
I think that's true in every single state
1179
00:58:59.460 --> 00:59:03.523
that has legalized medical form recreational marijuana.
1180
00:59:05.260 --> 00:59:08.290
You, briefly in your introductory statement,
1181
00:59:08.290 --> 00:59:11.420
addressed the questioning the chief was asking.
1182
00:59:11.420 --> 00:59:13.910
Could you slow down and explain to me
1183
00:59:14.890 --> 00:59:16.500
what you were saying there in the beginning
1184
00:59:16.500 --> 00:59:19.263
about acupuncture and this and that?
1185
00:59:20.130 --> 00:59:22.900
I'm trying to understand that argument
1186
00:59:22.900 --> 00:59:24.200
that there are certain things
1187
00:59:24.200 --> 00:59:26.640
that workers comp insurers have to pay
1188
00:59:26.640 --> 00:59:30.073
that health insurers do not have to pay.
1189
00:59:30.970 --> 00:59:33.440
I thought you addressed that,
1190
00:59:33.440 --> 00:59:36.110
but I couldn't follow what you were saying.
1191
00:59:36.110 --> 00:59:37.903
I'm sorry, I apologize.
1192
00:59:39.050 --> 00:59:40.840
No, no, maybe it's me, you know?
1193
00:59:40.840 --> 00:59:45.210
If that employee and his or her physician
1194
00:59:45.210 --> 00:59:50.210
can justify to a judge, an administrative judge,
1195
00:59:51.370 --> 00:59:53.333
that is, the judge at the trial level,
1196
00:59:54.290 --> 00:59:59.290
that a particular procedure, such as massage therapy
1197
00:59:59.830 --> 01:00:02.730
or acupuncture, or chiropractic treatment
1198
01:00:04.770 --> 01:00:07.860
is a reasonable and necessary medical treatment
1199
01:00:09.140 --> 01:00:13.960
that will help the employee with their pain,
1200
01:00:13.960 --> 01:00:17.080
with the improvement of their medical condition
1201
01:00:17.080 --> 01:00:22.080
that will help restore them to a better quality of life
1202
01:00:22.280 --> 01:00:27.280
or that will allow them to return to the workforce
1203
01:00:27.510 --> 01:00:32.510
then it will be deemed a reasonable and necessary
1204
01:00:34.580 --> 01:00:36.413
and reasonable medical treatment.
1205
01:00:37.498 --> 01:00:41.110
And, the judge can award and order the insurer
1206
01:00:41.110 --> 01:00:43.700
to pay for that medical treatment.
1207
01:00:43.700 --> 01:00:46.687
Unlike a contractual benefit
1208
01:00:49.930 --> 01:00:52.943
that might come under a health inaction insurance policy.
1209
01:00:54.220 --> 01:00:57.020
How do you apply the analogy
1210
01:00:58.597 --> 01:00:59.960
to the marijuana hearing then?
1211
01:00:59.960 --> 01:01:03.960
Because they found, according to your sister,
1212
01:01:03.960 --> 01:01:08.960
that this was reasonable and necessary to his health.
1213
01:01:09.940 --> 01:01:12.023
So, why is this different?
1214
01:01:14.070 --> 01:01:18.960
It's different for one major reason, we stipulated
1215
01:01:18.960 --> 01:01:23.960
that if Mr. Wright feels that he receives a positive benefit
1216
01:01:26.400 --> 01:01:30.930
by using medical marijuana, so be it.
1217
01:01:30.930 --> 01:01:35.090
If he feels he's better because of it, we are all for it.
1218
01:01:35.090 --> 01:01:38.190
And, not on our dime and not at the risk
1219
01:01:38.190 --> 01:01:41.390
of Central Mutual being prosecuted
1220
01:01:41.390 --> 01:01:43.760
for paying for medical marijuana.
1221
01:01:43.760 --> 01:01:47.030
If Mr. Wright wants to buy medical marijuana
1222
01:01:47.030 --> 01:01:52.030
on his own dime, and risk himself being prosecuted
1223
01:01:52.460 --> 01:01:54.453
under the federal law, so be it.
1224
01:01:55.510 --> 01:01:59.660
If he gets off opioids, we're happy about that.
1225
01:01:59.660 --> 01:02:03.260
He's much better off being off of opioids,
1226
01:02:03.260 --> 01:02:05.080
not being addicted to it.
1227
01:02:05.080 --> 01:02:07.890
Central Mutual, as an insurance company,
1228
01:02:07.890 --> 01:02:12.040
is happy that he's not being addicted
1229
01:02:12.040 --> 01:02:13.343
to those kind of drugs.
1230
01:02:15.950 --> 01:02:16.783
Can I switch?
1231
01:02:16.783 --> 01:02:18.513
Because we have limited time.
1232
01:02:19.540 --> 01:02:21.880
I don't understand how you can impose this cost
1233
01:02:21.880 --> 01:02:22.810
on the trust fund.
1234
01:02:22.810 --> 01:02:27.023
Explain that to me, why is that the case?
1235
01:02:28.674 --> 01:02:30.953
Why would the trust fund have to pick this up?
1236
01:02:32.840 --> 01:02:35.910
Because Mr. Wright had a pre-existing impairment
1237
01:02:35.910 --> 01:02:38.030
before his industrial injury,
1238
01:02:38.030 --> 01:02:40.940
we were able to negotiate with the trust fund
1239
01:02:40.940 --> 01:02:45.940
that his injury (statics) his pre-existing condition,
1240
01:02:51.960 --> 01:02:54.168
his disability was substantially greater
1241
01:02:54.168 --> 01:02:58.490
because of his pre-existing condition
1242
01:02:58.490 --> 01:02:59.770
than it would have been,
1243
01:02:59.770 --> 01:03:02.310
had he not had that pre-existing condition.
1244
01:03:02.310 --> 01:03:04.800
As such, we filed what we call
1245
01:03:04.800 --> 01:03:07.180
a second injury fund claim against trust fund
1246
01:03:07.180 --> 01:03:09.820
and we reached an agreement with them
1247
01:03:09.820 --> 01:03:13.170
to reimburse us up to 75 percent
1248
01:03:13.170 --> 01:03:15.670
of any future benefits that-
1249
01:03:15.670 --> 01:03:18.220
Okay, you haven't- neither side
1250
01:03:18.220 --> 01:03:20.170
has briefed this issue.
1251
01:03:20.170 --> 01:03:22.690
I have briefed it
1252
01:03:22.690 --> 01:03:24.420
as the last part of my argument.
1253
01:03:24.420 --> 01:03:27.610
I have included the approved section 37 agreement
1254
01:03:27.610 --> 01:03:29.983
in my brief, in the appendix.
1255
01:03:32.455 --> 01:03:35.310
Bear with me Mr. Nason.
1256
01:03:35.310 --> 01:03:37.380
Having done some of this before,
1257
01:03:37.380 --> 01:03:39.890
pre-existing stuff is very complicated.
1258
01:03:39.890 --> 01:03:41.740
You have a real discussion in your brief,
1259
01:03:41.740 --> 01:03:43.982
I read your brief but I forgot that.
1260
01:03:43.982 --> 01:03:47.399
(both justices speaking)
1261
01:03:49.830 --> 01:03:50.663
It's in there,
1262
01:03:50.663 --> 01:03:54.033
I believe it's the very last part of my brief.
1263
01:03:55.090 --> 01:03:57.080
The very last argument.
1264
01:03:57.080 --> 01:03:58.000
Has the other side
1265
01:03:58.000 --> 01:04:00.730
addressed that as well in this?
1266
01:04:00.730 --> 01:04:04.520
Because I'm wondering whether a 16L submission
1267
01:04:04.520 --> 01:04:07.100
on the pre-existing issue...
1268
01:04:07.100 --> 01:04:09.450
Again, if it's fully briefed by both sides
1269
01:04:09.450 --> 01:04:10.630
I don't see any need to.
1270
01:04:10.630 --> 01:04:13.830
But, given how complicated pre-existing analysis is
1271
01:04:13.830 --> 01:04:15.163
in workers comp,
1272
01:04:16.150 --> 01:04:18.780
I hope it's not a couple of sentences in your brief.
1273
01:04:18.780 --> 01:04:19.613
That's all.
1274
01:04:21.730 --> 01:04:25.103
It was a done deal, if I might put it that way.
1275
01:04:26.300 --> 01:04:29.803
In that, we have an approved agreement, I attached it.
1276
01:04:31.585 --> 01:04:33.150
When we settled the case
1277
01:04:33.150 --> 01:04:36.650
the trust fund paid us $96,000
1278
01:04:36.650 --> 01:04:37.950
as part of the settlement.
1279
01:04:40.170 --> 01:04:41.500
Refresh my recollection,
1280
01:04:41.500 --> 01:04:46.500
the trust fund is paid for by all employers by a surcharge?
1281
01:04:46.740 --> 01:04:49.860
How does it work, how does the trust fund work?
1282
01:04:49.860 --> 01:04:51.010
There are contributions made
1283
01:04:51.010 --> 01:04:55.340
to the trust fund by all employers every year.
1284
01:04:55.340 --> 01:04:57.830
So essentially, 75 percent of this
1285
01:04:57.830 --> 01:05:01.793
would be picked up by all the employers in the commonwealth?
1286
01:05:04.380 --> 01:05:07.880
Essentially, that's a simple way of putting it.
1287
01:05:07.880 --> 01:05:09.930
I had the agreement in front of me but...
1288
01:05:13.180 --> 01:05:14.480
I have the agreement here.
1289
01:05:16.134 --> 01:05:17.190
It was dated, it's in the brief, it was dated
1290
01:05:20.820 --> 01:05:22.863
February 15, 2017.
1291
01:05:23.750 --> 01:05:26.540
It was signed by a colleague at my office
1292
01:05:26.540 --> 01:05:28.740
attorney Richard Schwartz, it was signed by-
1293
01:05:30.158 --> 01:05:32.700
I get that there's an agreement,
1294
01:05:32.700 --> 01:05:33.533
I just want to make sure
1295
01:05:33.533 --> 01:05:37.037
we understand the legal consequences of the agreement
1296
01:05:37.037 --> 01:05:41.830
and the context of paying for marijuana treatment.
1297
01:05:41.830 --> 01:05:43.443
But essentially, what you're saying is,
1298
01:05:43.443 --> 01:05:46.020
that if we impose this,
1299
01:05:46.020 --> 01:05:49.720
75 percent of the cost will be imposed on the trust fund,
1300
01:05:49.720 --> 01:05:52.043
which is a collective responsibility.
1301
01:05:56.620 --> 01:05:59.030
Yes, in effect, yes.
1302
01:05:59.030 --> 01:06:01.480
The exact language in the agreement says
1303
01:06:02.843 --> 01:06:05.740
that the trust fund will reimburse Central Mutual
1304
01:06:05.740 --> 01:06:09.657
80 percent of 75 percent
1305
01:06:09.657 --> 01:06:12.870
of all future related medical expenses.
1306
01:06:12.870 --> 01:06:17.663
If you deem Mr. Wright to be entitled to you, the court,
1307
01:06:19.473 --> 01:06:24.330
be entitled to future medical or past medical expenses,
1308
01:06:24.330 --> 01:06:26.380
i.e. medical marijuana,
1309
01:06:26.380 --> 01:06:29.910
then we will turn around and request 75 percent
1310
01:06:29.910 --> 01:06:32.510
of the cost of that medical marijuana
1311
01:06:32.510 --> 01:06:33.460
from the trust fund,
1312
01:06:33.460 --> 01:06:36.800
through section 37 agreement.
1313
01:06:36.800 --> 01:06:37.633
The trust fund-
1314
01:06:40.081 --> 01:06:43.940
Is the trust fund a governmental entity?
1315
01:06:43.940 --> 01:06:45.520
Again, I should know this but I don't remember.
1316
01:06:45.520 --> 01:06:48.980
Is it a governmental entity, the trust fund?
1317
01:06:48.980 --> 01:06:51.178
Is it a public entity or-
1318
01:06:51.178 --> 01:06:52.011
They are part
1319
01:06:52.011 --> 01:06:55.852
of the Department of Industrial Accidents.
1320
01:06:55.852 --> 01:07:00.852
They cover uninsured (statics) et cetera.
1321
01:07:01.259 --> 01:07:02.829
Okay, that's all I have, thank you.
1322
01:07:02.829 --> 01:07:03.713
They're part of the St. Pierre Case
1323
01:07:03.713 --> 01:07:05.950
that was held at the appellate court
1324
01:07:05.950 --> 01:07:08.483
with the state pending this case.
1325
01:07:09.890 --> 01:07:10.723
Okay.
1326
01:07:11.640 --> 01:07:13.340
Alright, before I start,
1327
01:07:15.060 --> 01:07:17.540
following up on Justice Kafkers questions,
1328
01:07:17.540 --> 01:07:21.630
I do invite both sides to, in a 16L letter,
1329
01:07:21.630 --> 01:07:26.300
to address the consequences, if any, of the fund.
1330
01:07:31.040 --> 01:07:33.340
So, I invite both sides, if they wish,
1331
01:07:33.340 --> 01:07:34.750
to write a short 16L
1332
01:07:34.750 --> 01:07:37.290
addressing whether there is any relevance
1333
01:07:37.290 --> 01:07:40.300
of the fund to the decision in this case.
1334
01:07:40.300 --> 01:07:43.343
Mr. Nason, let me just make sure I understand your position.
1335
01:07:46.890 --> 01:07:50.580
You agree that this particular individual
1336
01:07:50.580 --> 01:07:54.100
is better served by having taking medical marijuana
1337
01:07:54.100 --> 01:07:55.580
than by taking the alternative,
1338
01:07:55.580 --> 01:07:57.320
which would almost certainly be narcotics.
1339
01:07:57.320 --> 01:07:58.153
Is that correct?
1340
01:08:00.470 --> 01:08:03.417
If he says he feels better
1341
01:08:03.417 --> 01:08:05.560
and he functions better,
1342
01:08:05.560 --> 01:08:07.856
I'm not gonna argue with that.
1343
01:08:07.856 --> 01:08:09.900
Okay.
1344
01:08:09.900 --> 01:08:12.260
I can't say that I really agree with it,
1345
01:08:12.260 --> 01:08:14.063
having learned much more about it.
1346
01:08:16.110 --> 01:08:19.123
Quite honestly, I'm a child of the 60's,
1347
01:08:19.990 --> 01:08:23.410
in fact judge Gants and I are exactly the same age.
1348
01:08:23.410 --> 01:08:26.963
And, we grew up very close to each other in New York.
1349
01:08:29.210 --> 01:08:33.670
Having learned now, looking at the menu's involved
1350
01:08:33.670 --> 01:08:38.230
with both medical and recreational marijuana,
1351
01:08:38.230 --> 01:08:40.240
THC is really the ingredient
1352
01:08:40.240 --> 01:08:43.860
that the Controlled Substances Act
1353
01:08:43.860 --> 01:08:48.300
was aimed at making illegal.
1354
01:08:48.300 --> 01:08:51.750
THC is what makes people high,
1355
01:08:51.750 --> 01:08:54.513
and when you're high you feel great.
1356
01:08:57.020 --> 01:08:59.613
I'm not a scientist and I can't speak to this,
1357
01:09:01.573 --> 01:09:04.860
but going back to my wild years, if I will,
1358
01:09:04.860 --> 01:09:09.580
if I may say so, the THC- I mean I felt great!
1359
01:09:09.580 --> 01:09:13.480
I was either mellow or I felt no pain at all,
1360
01:09:13.480 --> 01:09:14.463
or I was happy.
1361
01:09:15.840 --> 01:09:18.893
Maybe the same thing has happened to Mr. Wright, but-
1362
01:09:18.893 --> 01:09:19.730
Okay, let me,
1363
01:09:19.730 --> 01:09:22.161
without getting into more details
1364
01:09:22.161 --> 01:09:24.267
(Nason laughing)
1365
01:09:24.267 --> 01:09:26.200
to the glory of your youth in the 60s.
1366
01:09:26.200 --> 01:09:29.850
Do you agree that his use of medical marijuana here
1367
01:09:31.390 --> 01:09:34.220
was a reasonable and necessary healthcare expense
1368
01:09:34.220 --> 01:09:35.183
under section 30?
1369
01:09:39.680 --> 01:09:41.920
I agree that he might have felt better.
1370
01:09:41.920 --> 01:09:43.640
Okay, well that's not my question.
1371
01:09:43.640 --> 01:09:44.942
My question-
1372
01:09:44.942 --> 01:09:47.412
I'm not a doctor-
1373
01:09:47.412 --> 01:09:48.650
You have an obligation, as you well know
1374
01:09:48.650 --> 01:09:52.623
to pay the reasonable and necessary cost of services.
1375
01:09:55.120 --> 01:09:56.010
Services, I believe,
1376
01:09:56.010 --> 01:09:58.610
include adequate and reasonable healthcare services.
1377
01:09:59.780 --> 01:10:02.690
But, for your argument that it is preemptive,
1378
01:10:02.690 --> 01:10:05.390
Do you agree that there would be an obligation to pay?
1379
01:10:13.200 --> 01:10:14.280
All I can agree to
1380
01:10:14.280 --> 01:10:16.223
is that if he says he feels better,
1381
01:10:17.300 --> 01:10:20.000
and it got him off opioids,
1382
01:10:20.000 --> 01:10:23.800
then I agree that, that's a good outcome.
1383
01:10:23.800 --> 01:10:26.133
Okay, well let me rephrase the question.
1384
01:10:27.343 --> 01:10:29.460
If congress changed the law
1385
01:10:29.460 --> 01:10:32.220
to say that medical marijuana is to be treated
1386
01:10:34.260 --> 01:10:38.450
as opioids, which may be viewed to have medical benefit
1387
01:10:38.450 --> 01:10:39.763
and can be prescribed.
1388
01:10:40.750 --> 01:10:43.633
Would you agree that there would be an obligation to pay?
1389
01:10:45.390 --> 01:10:46.820
That makes a whole new ball game,
1390
01:10:46.820 --> 01:10:47.653
your honor.
1391
01:10:47.653 --> 01:10:48.486
Okay.
1392
01:10:48.486 --> 01:10:50.410
And I would possibly electively say, yes.
1393
01:10:50.410 --> 01:10:53.710
Okay, so then the question is
1394
01:10:53.710 --> 01:10:58.710
whether it would be a crime for the workers comp insurer
1395
01:10:59.630 --> 01:11:03.392
to pay if it were mandated, correct?
1396
01:11:03.392 --> 01:11:07.250
If it were not a controlled 1 substance,
1397
01:11:07.250 --> 01:11:09.943
and it were not deemed a federal crime,
1398
01:11:11.040 --> 01:11:15.400
and my client was not exposed to the risk
1399
01:11:15.400 --> 01:11:20.030
of federal prosecution, then we would have to pay for it.
1400
01:11:20.030 --> 01:11:21.960
Okay, now what is the crime
1401
01:11:21.960 --> 01:11:23.700
which you say they would be exposed to?
1402
01:11:23.700 --> 01:11:27.500
What crime could you say, arguably,
1403
01:11:27.500 --> 01:11:28.800
they would have committed?
1404
01:11:29.960 --> 01:11:31.230
Under the present law,
1405
01:11:31.230 --> 01:11:33.500
they would be aiding and abetting
1406
01:11:33.500 --> 01:11:38.500
by paying for, by reimbursing, by allowing him
1407
01:11:44.530 --> 01:11:49.530
to procure an illegal substance, medical marijuana.
1408
01:11:50.720 --> 01:11:55.303
A class 1 substance under the Controlled Substances Act.
1409
01:11:56.330 --> 01:12:00.530
Which, is still a crime under federal law.
1410
01:12:00.530 --> 01:12:01.363
Okay.
1411
01:12:01.363 --> 01:12:02.880
And, I'll ask you the same question I asked your sister,
1412
01:12:02.880 --> 01:12:07.260
are you aware of any case, federal or state,
1413
01:12:07.260 --> 01:12:10.530
in which anyone has been prosecuted
1414
01:12:10.530 --> 01:12:13.130
either as a co-conspirator or a joint venturer,
1415
01:12:13.130 --> 01:12:15.200
or an aider and abettor,
1416
01:12:15.200 --> 01:12:20.200
for reimbursing a person for the medical expense
1417
01:12:20.260 --> 01:12:23.153
involved in medical marijuana?
1418
01:12:24.230 --> 01:12:26.210
No I am not, your honor.
1419
01:12:26.210 --> 01:12:27.130
I have no further questions,
1420
01:12:27.130 --> 01:12:29.191
any questions of my fellow justices?
1421
01:12:29.191 --> 01:12:31.160
I have one follow up.
1422
01:12:31.160 --> 01:12:36.160
So, the chief asked you if it was reasonable and necessary
1423
01:12:38.770 --> 01:12:43.113
and it wasn't a crime and preempted.
1424
01:12:44.400 --> 01:12:46.220
But, you left out a step, right?
1425
01:12:46.220 --> 01:12:49.710
You still believe that you're a health insurer.
1426
01:12:49.710 --> 01:12:51.990
And, therefore, you're not required
1427
01:12:51.990 --> 01:12:56.040
to pay by the statute itself and regulations,
1428
01:12:56.040 --> 01:12:56.973
is that correct?
1429
01:12:58.460 --> 01:12:59.690
That's correct,
1430
01:12:59.690 --> 01:13:02.160
I believe that we are a health insurer.
1431
01:13:02.160 --> 01:13:05.050
So, separate and apart from preemption,
1432
01:13:05.050 --> 01:13:07.730
you believe you have no obligation to pay
1433
01:13:07.730 --> 01:13:09.763
because of 7B, correct?
1434
01:13:14.550 --> 01:13:16.220
That's correct.
1435
01:13:16.220 --> 01:13:17.053
Okay.
1436
01:13:17.053 --> 01:13:20.703
We are required to pay health benefits,
1437
01:13:22.743 --> 01:13:25.640
medical benefits, and wage replacement benefits
1438
01:13:27.280 --> 01:13:29.200
to injured workers.
1439
01:13:29.200 --> 01:13:31.630
Yeah, but my question is,
1440
01:13:31.630 --> 01:13:33.450
at least I thought you were arguing
1441
01:13:33.450 --> 01:13:36.230
although you wait until the very end of your brief.
1442
01:13:36.230 --> 01:13:39.920
I thought you were arguing that 7B says
1443
01:13:39.920 --> 01:13:44.200
you are not required to pay marijuana expenses.
1444
01:13:44.200 --> 01:13:48.410
Therefore, forget about whether you have any exposure
1445
01:13:48.410 --> 01:13:52.530
to aiding or abetting liability.
1446
01:13:52.530 --> 01:13:56.160
You still don't have to pay because you're a health insurer
1447
01:13:56.160 --> 01:13:58.240
and they carved you out.
1448
01:13:58.240 --> 01:14:01.430
They carved out medical marijuana payments
1449
01:14:01.430 --> 01:14:03.433
in the statute itself, right?
1450
01:14:05.830 --> 01:14:07.020
Or am I misinterpreting that?
1451
01:14:07.020 --> 01:14:08.673
They did, however,
1452
01:14:09.680 --> 01:14:13.151
let me ask, if I may, we would not be-
1453
01:14:13.151 --> 01:14:16.818
(multiple justice speaking)
1454
01:14:18.700 --> 01:14:20.833
If somebody ordered us to pay for cocaine,
1455
01:14:21.930 --> 01:14:24.610
I don't think we'd pay for that either.
1456
01:14:24.610 --> 01:14:27.710
Because that's illegal, in the same way
1457
01:14:27.710 --> 01:14:31.700
that medical marijuana is illegal under federal law.
1458
01:14:31.700 --> 01:14:33.530
Right, but I'm cutting out
1459
01:14:33.530 --> 01:14:35.860
the illegality for a second.
1460
01:14:35.860 --> 01:14:39.970
I'm just saying, forget about whether it's illegal or not
1461
01:14:39.970 --> 01:14:44.330
the statute 7B, the regulation said,
1462
01:14:44.330 --> 01:14:47.413
you do not have to pay for medical marijuana.
1463
01:14:48.590 --> 01:14:50.570
Whether it's legal or illegal,
1464
01:14:50.570 --> 01:14:54.430
doesn't the statute carve out that from your obligations
1465
01:14:54.430 --> 01:14:56.073
if you're a health insurer?
1466
01:14:57.800 --> 01:14:58.633
Yes.
1467
01:14:59.850 --> 01:15:01.506
Okay, I have no further questions.
1468
01:15:01.506 --> 01:15:02.360
Okay, I've got other questions,
1469
01:15:02.360 --> 01:15:06.117
Mr. Nason, that statute that was referring to section 7
1470
01:15:07.180 --> 01:15:11.697
says nothing in this law, meaning the medical marijuana law,
1471
01:15:16.150 --> 01:15:17.900
requires any health insurance provider,
1472
01:15:17.900 --> 01:15:20.180
any government agency or authority,
1473
01:15:20.180 --> 01:15:22.270
to reimburse any person for the expenses
1474
01:15:22.270 --> 01:15:24.053
of the medical abuse of marijuana.
1475
01:15:25.689 --> 01:15:27.007
Is it your suggestion that where it says,
1476
01:15:27.007 --> 01:15:28.970
"nothing in this law", would mean
1477
01:15:28.970 --> 01:15:29.803
that even if you were required under a different law,
1478
01:15:29.803 --> 01:15:34.803
chapter 152 section 30,
1479
01:15:35.430 --> 01:15:38.270
that it would protect you from paying under section 30
1480
01:15:38.270 --> 01:15:41.650
because section 7 says nothing in this law
1481
01:15:41.650 --> 01:15:42.823
shall require you to?
1482
01:15:44.120 --> 01:15:47.650
No, because we can't ignore the federal law.
1483
01:15:47.650 --> 01:15:49.730
We'd have a positive conflict again.
1484
01:15:49.730 --> 01:15:51.670
Okay, so you're going back to the federal law.
1485
01:15:51.670 --> 01:15:55.523
You're not resting your argument on section 7?
1486
01:15:56.590 --> 01:15:57.640
No!
1487
01:15:57.640 --> 01:15:59.430
That's what creates the positive conflict
1488
01:15:59.430 --> 01:16:01.340
between the state and the federal law.
1489
01:16:01.340 --> 01:16:03.300
Okay, alright I have no further questions.
1490
01:16:03.300 --> 01:16:05.650
Any further questions of the justices?
1491
01:16:05.650 --> 01:16:07.520
I'm completely confused now
1492
01:16:07.520 --> 01:16:08.490
by the last answer.
1493
01:16:08.490 --> 01:16:09.920
May I inquire chief?
1494
01:16:09.920 --> 01:16:10.767
Yes, justice L, you may.
1495
01:16:10.767 --> 01:16:11.600
Okay.
1496
01:16:11.600 --> 01:16:13.547
So, for instance, the regulation
1497
01:16:13.547 --> 01:16:18.547
935 CMR 501, nothing requires any health insurer
1498
01:16:21.730 --> 01:16:24.470
provider, or government agency or authority,
1499
01:16:24.470 --> 01:16:26.110
to reimburse any person
1500
01:16:26.110 --> 01:16:28.913
for the expenses of medical use of marijuana.
1501
01:16:28.913 --> 01:16:32.880
And, section 7B, says that health insurance,
1502
01:16:32.880 --> 01:16:34.810
or government agencies
1503
01:16:34.810 --> 01:16:36.630
not required to reimburse any person
1504
01:16:36.630 --> 01:16:40.050
for the expenses of medical marijuana
1505
01:16:40.050 --> 01:16:41.880
nor authorize the use of it.
1506
01:16:41.880 --> 01:16:46.880
Is your position that if not for federal preemption
1507
01:16:47.200 --> 01:16:49.780
you would not be able to rely on that statute
1508
01:16:49.780 --> 01:16:54.003
and regulation to not reimburse?
1509
01:16:56.820 --> 01:16:58.831
For the federal law?
1510
01:16:58.831 --> 01:17:02.290
Could you just rely on section 7B
1511
01:17:02.290 --> 01:17:05.173
and the regulation not to reimburse?
1512
01:17:07.140 --> 01:17:08.450
I believe so.
1513
01:17:08.450 --> 01:17:10.730
Alright, fine.
1514
01:17:10.730 --> 01:17:12.750
Thank you, I have nothing else.
1515
01:17:12.750 --> 01:17:16.270
Okay, that concludes the argument
1516
01:17:16.270 --> 01:17:20.162
and we will commence in about two minutes, thank you.
1517
01:17:20.162 --> 01:17:21.043
Thank you, your honor.