Male speaker: - SJC-12873,
Daniel Wright v. Central Mutual Insurance Company.
Gants: Alright, Ms.Lamondia Wrinkle-
Nason: Your honor, may I interrupt one moment?
Gants: Yes.
Nason: One point of clarification,
may we refer to this as section 7B
(static drowns out speaker).
For the purposes of making it easier?
Gants: Why don't you
address that in your argument,
I'm not sure if I quite get your point right now.
I'm not quite sure how to answer that.
We can address that during the course of your argument.
First, we'll hear from Ms.Lamondia Wrinkle.
Lamondia: Great, thank you.
Good morning chief justice and associate justices.
Thank you for giving me the opportunity this morning
to bring before you the case of Daniel Wright.
I am Katherine Lamondia-Wrinkle,
and I have represented Daniel Wright since 2014.
Mr. Wright suffered a right knee injury at work
that's complicated by the development
of a deep vein thrombosis
and complex regional pain syndrome,
a debilitating pain condition.
He suffered through a range of treatment options
all to no avail, before discovering medical marijuana.
He describes his life before that time as filled with pain.
Since then,
he has reduced his use and dependence on medication.
He wants you to know that currently he is a different person
because of the benefits of medical marijuana.
He is looking at returning to college and returning to work,
something he thought unthinkable a few years ago.
We contend the department of Industrial Accidents
erred in finding the Controlled Substance Act,
preempted it from requiring
Central Mutual Insurance Company from paying for,
and or reimbursing Mr. Wright for the cost
of medical marijuana to treat his work related injury.
The insurer has not contested,
and the Department of Industrial Accidents still found
that the use of medical marijuana,
in the case of Mr. Wright,
is a reasonable and necessary treatment for his condition.
His diagnosis of chronic regional pain syndrome
is the exact type of condition
the Massachusetts Medical Marijuana Law
was intended to provide for.
The purpose of that law melds well
with the purpose of the Worker's Compensation Act,
both of which are beneficent acts.
There are several points we wish to make.
First, Central Mutual is not a health insurer.
Most significantly,
workers in the context of workers compensation claims,
give up their right to sue their employers
in the event of negligence, in exchange for those benefits.
Second, as preemption,
it exists when there's no direct conflict in the law,
such as when it is impossible to comply
with both federal and state law.
While the CSA, which was passed in 1970,
made marijuana a class 1 substance,
the policy memos recently show a lack of federal interest
in prosecuting marijuana claims,
unless they are directly related to drug distribution
and trafficking or manufacturing.
Moreover, congress in passing it's congressional budgets
have handicapped the justice department from pursuing states
that have passed medical marijuana laws.
This court noted,
in Barbuto versus Advantage Sales and Marketing,
that since the enactment of the CSA,
90 percent of the states have enacted laws
regarding medical marijuana.
And, that reflects their determination
that when lawfully prescribed,
it has a current accepted medical use and treatment.
Further, as to preemption, the federal government
has deferred to states in terms of the practice of medicine
within their own boundaries.
Quoting the supreme court from Gonzales versus Oregon,
"CSA makes no intent to regulate the practice of medicine."
Which is understandable,
given the structure and limitations of federalism
which allows the states great latitude,
under their police powers, to legislate as to the protection
of the life, health, comfort and quiet
of all persons.
Massachusetts has a compelling interest here,
particularly in providing medical treatment
to it's injured workers.
In the most recent decision from New Jersey,
Hager versus M and K Construction,
the superior court of New Jersey, appellate division,
found that the employers act
of reimbursing an employee for the purchase
of medical marijuana, did not violate the CSA.
As there was no conflict, the employer was not required
to possess, manufacture or distribute marijuana,
nor would the employer have the requisite intent
and active participation needed
for an aiding and abetting charge.
Lastly, as to the amicus brief
filed by American Property Casualty Insurance,
the focus on that brief seems to be workplace safety,
and the efficiency of medical marijuana.
This is not a workplace safety case,
but rather, the issue is providing significant relief
for those who were injured,
such as Mr. Wright with a debilitating pain condition.
It's also not a challenge to the efficiency of marijuana,
as the medical marijuana law is already in place.
And we hope, through our case,
to extend that benefit to a certain class of individuals,
such as Mr. Wright.
In conclusion, we believe that Massachusetts
should protect Daniel Wright as an injured worker.
He should not have to pay $25,000 out of pocket
to advance his own recovery
to the point where he will be able to return to work.
We're asking you to afford him the protection
of the Workers Compensation Act,
and the Medical Marijuana Law.
Thank you.
Gants: Okay, Justice Lenk.
Lenk: Yes, good morning.
I'd like to focus on the statute,
rather than on the federal issue.
I'd like to focus on the Massachusetts statute
regarding marijuana.
And in particular, section 7, limitations on the law.
Section B, can you hear me?
Lamondia: Yes, I can.
Lenk: Okay.
Section B says that nothing in this law
requires any health insurance provider,
or any government agency or authority,
to reimburse any persons for expenses
of the medical use of marijuana.
So, how can you say our statute somehow is consistent
with the idea of paying, reimbursing?
Lamondia: Well, I think first of all,
it says it doesn't require but, it doesn't prohibit
the Department of Industrial Accidents
from awarding that benefit to injured employees.
So, I think it says it doesn't require,
but I certainly would argue
that it's well within the construct
of the rules and regulations
of the Department of Industrial Accidents, and it's law,
to order that as a benefit to injured workers.
The second part of that,
is that Central Mutual is not a health insurance carrier,
and I would argue that-
Lenk: But, the government agency
has authority right?
The government agency has authority.
Lamondia: The government agency is the authority
of the Department of Industrial Accidents, absolutely.
It doesn't require them to do that.
But, again, they're not relying on that
as being the reason why they're not awarding it
in this particular case.
I certainly would argue that it doesn't preclude them
from providing that benefit.
Lenk: Okay.
Let's go to F, nothing in this law
requires the violation of federal law
or purports to give immunity under federal law.
What is your position on whether this insurance,
the person who would be paying,
the company that would be paying the benefits,
would be at risk of being considered to be in violation
of federal law?
Lamondia: I look at the New Jersey case
that just came down, where they talk about
the fact that the insurance company would be manufacturing,
wouldn't be distributing.
And, wouldn't be in any way
committing any one of those acts.
They're not in possession of the marijuana.
They were arguing that they wouldn't have
the requisite intent and the active participation necessary
to be charged with aiding and abetting.
So, I guess our position would be
that they wouldn't run afoul of the CSA.
Lenk: Okay.
Now, the New Jersey case, is that cited in your brief?
Lamondia: It was not, it came down after my brief.
Lenk: Could we have the citation to it please?
Lamondia: You certainly can, it's right here.
If you would hold on for a minute, I would be happy to-
Lenk: Or you could do it in a 16L letter
if you don't want to take your time to do it now.
Chief, is that alright?
Chief?
Gants: Yes, why don't you do it
in the 16L letter, that's the more appropriate form.
Lamondia: Okay, I do have it in front of me
but I will do it that way, yes.
Lenk: Alright, I'm done with questions, thank you.
Lamondia: Thank you.
Gants: Justice Gaziano.
Gaziano: Yes, good morning.
One question, with respect,
the CSA is obviously the one statute that applies.
Then, we have various administrations,
have federal guidance as to how closely
they're going to enforce marijuana laws
in states that allow either medical
or recreational marijuana.
But, those can be fleeting, right?
Because administrations change and DOJ policy changes.
But, the CSA, like it or not, endures.
How do you respond to that?
Lamondia: Yeah, I guess that they can be fleeting.
But, when you look at the history,
the act goes back to 1970, we're now in 2020.
I think things have been fairly consistent
with respect to the policy
for the last, oh god, at least 10 years.
And, we still see congress
prohibiting the justice department
from using the funds to go after states.
And frankly, they haven't at this point.
We hope to see legislation come down in the very near future
that just removes this as a class 1 substance altogether.
But, I think when you look at the tide,
no matter what administration,
you're gonna see the changes come in
where there's gonna be direct legislation
removing it from schedule 1.
Gaziano: Right, but whether it's solitary or not,
whether that's good policy or not,
is obviously a different issue.
But, how do we tell a business entity,
go ahead and violate the law,
because you probably won't get prosecuted?
Lamondia: I think that, that goes back to the question
that I was answering previously.
Are they really violating the law
by complying with an order?
No.
Because, they're not aiding and abetting,
and they're not manufacturing, distributing or possessing.
So, if you approach it from that perspective,
regardless of what the CSA says,
they're not violating the law.
Gaziano: And where does the law help us or hurt
with regard to banking,
and how that controversy has played out federally,
in states that allow recreational medical marijuana?
Lamondia: I think the easier approach
would be to require reimbursement,
so that they're not directly paying for it.
I think that, that would be the safer-
Gaziano: Actually, I think I asked a bad question.
I should rephrase it, I stated wrong.
I meant, as far as banks that don't want to finance,
that were scared off of taking marijuana money.
There was a big controversy over whether or not
financial institutions would get involved
in marijuana business, if you remember that.
How has that played out, if you know?
Lamondia: I don't know how that's played lately.
I mean, I guess my gut reaction
to whether that should be an issue goes to,
no, it shouldn't be an issue.
Because, again, those are checks that's cashed.
They're not involved in, again,
the distribution, the manufacturing
and the items that have been set forth
as really being the focus of the CSA.
So, I don't think banks should be concerned
anymore than Central Mutual Insurance Company
should be concerned with violating the CSA.
But, again, I'm not up on where that sort of-
Gaziano: And that was my question,
because I was wondering if we could use that as an analogy
to help us resolve this case.
Lamondia: I think that they stand in the same place
as Central Mutual Insurance,
And, I think that they're just taking checks
and operating a business.
They're not actually engaged in anything
with respect to aiding and abetting
or supplying the marijuana.
And, again, this is all being done
under the legitimacy of an order
from the Department of Industrial Accidents.
Gaziano: Thank you.
Justice Lowy.
Lowy: Yes, good morning.
In reference to the Barbuto case-
Lamondia: Yes.
Lowy: In that case, if you know
through Justice's Gants's decision,
there's a claim of handicapped discrimination
in the workplace and an accomodation to medical marijuana.
It seemed an important part of that decision.
That, the employers policy toward drugs in the workplace
wasn't being exposed.
They weren't exposing what might be
a use of marijuana in the workplace or potential prosecution
no matter how theoretical it might be.
They weren't tying their company, their brand,
to the use of marijuana.
Doesn't that suggest that you have an issue
separate and distinct from section 7?
Separate and distinct from the regulation
and separate and distinct from preemption,
as far as requiring reimbursement?
Lamondia: The amicus brief that was filed
focuses on the workplace issues.
And, those are a whole different set of issues
that come to pass with the use of medical marijuana.
I don't think that those are relevant
to the case that's before us.
Because, the issue really, in my case
is providing medical marijuana as a treatment option
for somebody who is totally, and permanently disabled
and suffering from a significant pain condition
that prevents him from going back to work.
It's a treatment option that he should be afforded,
just like everyone else
who has a significant pain condition.
So, this case is so pointed at that one particular issue
that I don't feel that it is a workplace issue
and that's why I feel like the amicus brief
sort of missed the point on what this case was about,
versus what they were writing about.
Lowy: Thank you very much, that's all I have.
Gants: Justice Budd.
Budd: I don't have any questions, thank you.
Lamondia: Thank you.
Gants: Justice Cypher.
computer: Now exiting: Leonard Nason.
(beeping)
Cypher: Good morning, I have a couple questions.
One is related to-
Gants: Sorry, Justice Cypher?
Cypher: Yes?
Gants: We appear to have lost Mr. Nason.
Is his colleague on the call?
James: Yes, I am.
Gants: And, your name sir?
James: James Ramsey.
Gants: Okay,
and did he leave because of any particular reason
or do we just need to get him back?
James: I think we just need to get him back.
Gants: Okay.
James: I suspect he loss his cellphone reception.
Gants: Okay, why don't we wait a moment.
James: I will send him a text.
Gants: You can text him and tell him we've lost him.
(statics)
James: He's dialing back in now.
(statics)
James: He's in.
Gants: Mr. Nason, are you in?
I've not heard anybody answering the call.
James: Okay, I suspect they accepted his code.
(statics)
James: Stating his name, now.
(statics)
Gants: Mr. Nason, do we have you?
(statics)
Gants: I don't hear anybody answering the call.
James: Trying to clarify, judge, I apologize.
(statics)
computer: Now joining: Leonard Nason.
(beeping)
Gants: Okay, sorry.
Justice Cypher.
Cypher: Oh sure, thank you.
Welcome back.
My question relates to other penalties that a state could-
computer: Now exiting: Leonard Nason.
(beeping)
(laughing)
Cypher: Uh-oh.
Gants: Does he have a landline?
James: He does not.
Gants: Then he's calling from Lexington?
James: Yeah, he has more than one cellphone though.
I've asked him to use the other cellphone if this happened.
Gants: It's a telephone call, not...(laughs)
Cypher: Right, but, in his defense chief,
I don't have a landline either.
Gants: Right, I understand,
but I mean, generally, we're not talking about...
Cypher: Oh I see, you're not far away.
Gants: anything more sophisticated
than a telephone call.
Cypher: Right, right.
Well, I had this problem yesterday.
Gants: I know, but you were back
in about a minute so...(sighs)
Gants: Mr. Ramsey,
does he realize he's off again?
James: Yes, I just sent a text
telling that he's off again.
James: He just replied,
it was not his phone, it just simply ended the call.
So, I asked him to use the other cellphone.
computer: Now joining: Leonard Nason.
(beeping)
Gants: Okay.
Now justice Cypher, go ahead.
Cypher: Okay, thank you.
I understand there's some concern
about the individuals being prosecuted,
or the agency or something, if they violated federal law
or were perceived to.
But, beyond that, there are other penalties
that, should the federal government
decide that Massachusetts is not conforming
with the federal law, that they could impose on the state.
Has any contemplation been given to that?
Or has anybody discussed that
in any of the cases you've read?
I mean, they could withhold funding for things,
they're all sorts of other kinds,
grants could be withheld if we're not in compliance.
So, my concern is something a little bit broader
than the individuals involved or the agency involved.
Lamondia: The only thing that I read on that
says that the federal government
has taken no action against any of the states
that have enacted medical marijuana laws,
and any of the states that have permitted
or required workers compensation carriers
to reimburse employees from medical marijuana.
So, the suggestion is that they're not gonna enforce it
and that's consistent with, you know, the policy memos
and everything else that's come out at this point.
It appears that everyone's accepting it
as a legitimate medical treatment
when it's prescribed by a doctor.
So, I haven't found anything,
with respect to the federal government,
taking any negative action towards the states that are-
Cypher: But it has been contemplated and discussed
and thought about by other people, is that right?
Lamondia: Seems that way, yes.
Cypher: Okay, my other question is,
why is this not something
that the legislature should just address
and say that it's okay?
Why is it us?
Lamondia: Well, I think the legislature
has already addressed the use of medical marijuana.
So, that has been determined
that it can be prescribed for legitimate medical purposes.
The Workers Compensation Act awards benefits
to injured workers, medical benefits,
for all sorts of conditions.
Cypher: Okay, along those lines then,
if I can interrupt for a moment,
what about insurance carriers
where sometimes there's a prescribed medication
that an insurance company does not want to cover directly,
but you can apply for reimbursement for that?
Would this also be in that kind of category?
That, if a patient was prescribed medical marijuana,
they could apply it to their insurance carrier
for reimbursement outside of workers compensation?
Lamondia: Generally not, because what happens,
in the context of a workers compensation claim,
a health insurer won't step up and pay for anything-
Cypher: Right, I understand that.
I'm saying, let's move out of the workers comp world
and into everybody else's life who's non workers comp,
and say they're prescribed it for pain,
and they want to get reimbursed in their insurance company.
Why shouldn't they, in similar circumstances?
Wouldn't there be a fair argument
that we should do that also?
Lamondia: Well, that may be an argument,
but right now you've got that language
that says that the health insurers
aren't required to reimburse.
However, that doesn't mean a health insurer
cannot reimburse.
Health insurers could certainly take on that risk,
if it so chose to, but right now they're not required to.
Our case is a little bit different,
because I think, whether you call it a loophole
or whatever you call it,
the Department of Industrial Accidents
can award that benefit, and in this particular case
they found it was reasonable and necessary treatment.
The only reason why they said, we're not gonna do it,
is because of preemption
and what we feel the CSA prohibits us from doing.
So, workers comp is just different.
And, I tried to make that point early on.
Cypher: I understand that, I know it's different.
I'm just thinking more about the next case,
or parody with other kinds of medical benefits.
And, again, going back to why is this a case for us
and not the legislature,
have there been any other cases?
I admit, I'm not deeply involved in the workers comp world
as some of my colleagues.
Where we have added benefit?
Lamondia: There have been other cases
where the Workers Compensation act
has been interpreted to require the payment
of medical marijuana.
In those cases, other states: New Mexico, New Hampshire,-
Cypher: But, I meant in here, no,no,no.
I mean, in Massachusetts, not marijuana-
Lamondia: Oh.
Cypher: but something else
that wasn't contemplated,
like some new kind of physical therapy.
Have we ever defined the benefit,
the specific kind of reimbursement?
Lamondia: I don't.
Cypher: To add to the category?
Lamondia: I don't see the court as having done that,
but I see the department itself as having done that.
Has accepted acupuncture, has accepted-
Cypher: Okay, and that wasn't challenged though, right?
Lamondia: No, it wasn't challenged.
Because, those were probably a little bit easier
to make the determination.
But, they have interpreted at that level,
they have interpreted other types of treatment
as being acceptable.
Cypher: Okay.
Alright, I'm content, thank you.
Lamondia: Thank you.
Gants: Justice Kafker.
Kafker: I don't understand your argument
about health insurers.
Workers comp system
is a gigantic health insurance for workers.
It provides hundreds and millions of dollars
in health insurance benefits, doesn't it?
Lamondia: To some extent, that's true.
But, it's also a different system
that's bargained for in a different way.
It covers everybody, no matter how they're hurt at work,
whether they bend over to tie their shoe
or whether they fall.
But, to get that benefit,
workers give up their right
to sue their employers for negligence.
So, there's a big bargain-
Kafker: But, that doesn't...
You're not supposed to have to sue
to get your health insurance either.
You have health insurance,
you're supposed to get health insurance.
I don't understand why the suing
would have anything to do with that.
Lamondia: I think because you give up a right,
you give up a substantial right,
in exchange for workers compensation benefits.
And, you also are limited as to what you can get.
You're paid a disability wage,
and not paid a disability wage
through a traditional health insurance.
So, an employee, if they're out of work,
they get paid something.
Medical treatment is set by a rate setting commission,
sometimes the rates are awfully low,
but that's another story in and of itself.
And, you have an immediate way
to address any type of problems.
Kafker: By the way, this is a provision
that's in 20 states, right?
This is all over, this was some kind of national model,
this exclusion of health insurance.
Kafker: And the language, in some of the other states,
expressly references workers comp insurance.
Lamondia: Mmm-hmm.
Kafker: Arizona, other states, right?
Lamondia: Correct.
Kafker: So, I'm perplexed.
And, then you suggested
that the health insurer might be at risk
of being prosecuted.
But, the workers comp insurer,
wouldn't they be in the same position
as the banks and everyone else?
Lamondia: I wasn't sure that that's what I said.
I probably was pointing to the fact,
that the statute specifically addresses health insurance
in terms of saying nothing in the law
requires a health insurance provider.
But, I don't think a health insurance provider
would be anymore at risk than a workers compensation insurer
under the CSA.
Kafker: But, again, I don't get why.
The legislation excludes people
who don't want to be involved in the marijuana world.
It protects those who want to buy it,
those who want to sell it,
but it seems to carve out
health insurers or others
who would be involuntarily drawn into the marijuana world.
Don't we want to respect that distinction?
Lamondia: Well, who are we trying to protect
in all of this?
My position, is that our job really
is to protect the people who need it the most.
And, when we're using medical-
Kafker: Our job is to enforce the law isn't it?
It's one thing to expose someone to federal oversight
who wants to take this on, who wants to buy the marijuana
or sell the marijuana.
Isn't it another thing, to bring in interstate business-
I mean, this is an interstate company, right,
this insurance company?
Lamondia: Sure.
Kafker: Where is it headquartered?
Lamondia: I think out in Wisconsin,
but I'd have to let attorney Nason address that.
Kafker: Is medical marijuana legal even, there?
Is it?
Lamondia: I don't know the answer to that,
I don't think so at this point.
Kafker: Then, the last question,
you're talking about your person not coming back to work.
But, the whole point of workers comp
is to bring you back to work.
Lamondia: True.
Kafker: Isn't the next case gonna be someone
who needs medical marijuana to go back to work?
Doesn't that just run right into Barbuto
and our concerns about marijuana in the workplace?
He's permanently and totally disabled, is that right?
Is he a permanent and total disability case?
Lamondia: Sure, yes.
Kafker: He's not a temporary total,
he's a permanent and total?
Lamondia: Yes.
Kafker: But the next case, when we have someone
who needs this to get back to work, he's injured his knee.
Are you gonna be suggesting
that he would not be entitled to the marijuana,
but your guy would be?
Lamondia: I'm just saying there's a distinction right now
in the case before you.
The case before you is,
if this offers Mr. Wright some relief and benefit,
I guess, a lot of relief and benefit,
as the department found,
why shouldn't he be entitled to that benefit?
We've sort of let the cat out of the bag,
if we have medical marijuana legislation
where we're saying it can be used
for legitimate medical purposes,
and Mr. Wright's case is a legitimate medical purpose,
then, why can't he get that
through the workers compensation system?
Doesn't that system owe him that?
He was injured at work,
he's done everything he's supposed to do.
So, I'm looking at it as a defined issue right now.
Kafker: I take it your argument would be
that even if he could, if he were coming back to work,
if marijuana is the best treatment for him,
he should be entitled
to keep getting the marijuana and working?
Lamondia: That may well be the case, again,
I understand that was the issue that came up
in the Barbuto case.
But, the question also then becomes-
it's a much more subtler discussion
in the case of workplace and marijuana use.
And again, I don't see a real distinction
between allowing someone to come back to work
on medical marijuana
and allowing someone to come back to work on narcotics.
There's certain machinery you can't operate,
you can't drive.
So, in those particular cases,
you're gonna have to have that dialogue,
about what's appropriate, in the given case,
given anybody's medication and what they're taking
and what the side effects are gonna be
and medical marijuana shouldn't necessarily be any different
than a discussion about Oxycontin use on the job
or oxycodone use on the job.
Kafker: And, the last question is,
our U.S. attorney has said
that's he's prepared to prosecute marijuana offenses, right?
Has made public statements to that effect.
Don't we have to (statics) recognize that?
Whether he decides to pick on one of these people or not,
as opposed to someone in the banking field
or something else.
It's jut not as secure, at least here,
given that statement, is it?
Lamondia: I think you also have to look at,
going back to, like we talked about, the New Jersey case,
is it aiding and abetting?
Is it procuring?
Is it distribution?
Kafker: The New Jersey case
is just a superior court decision,
it's not even an appellate.
It's not the New Jersey supreme court, right?
Lamondia: It is though,
it's the superior court of New Jersey appellate division.
Kafker: Right, but it's not the top court, right?
Lamondia: Right.
Kafker: Okay, that's all I have.
Lamondia: Alright.
Gants: This is Chief Justice Gants,
let's turn to chapter 152 section 30,
which is, after all, the workers comp provision.
Lamondia: Yes.
Gants: I know that there are certain expenses,
which either no health insurer or most health insurers,
do not cover.
I'll use acupuncture as an example.
Under section 30, if an employee uses acupuncture,
is there an obligation of the insurer to pay that
if it's viewed to be a reasonable and necessary service?
Lamondia: That's currently being covered, yes.
Gants: Okay.
So, if he had acupuncture and that was viewed inadequate,
the language is, whether it's an adequate
and reasonable healthcare service, correct?
Lamondia: Yes.
Gants: So, even though
he could not go to his health insurer
and say, pay for my acupuncture,
the workers comp insurer would be obligated
to pay for acupuncture?
Lamondia: Yes.
Gants: Chiropractory?
Lamondia: Yes.
Gants: And...trying to think of what other...
Lamondia: Massage therapy.
Gants: Massage therapy would also be included?
Lamondia: Yes.
Gants: Now, the last sentence of section 30
says, "where services", which I assume
means adequate and reasonable healthcare services,
"are provided to employees under this section.
The reasonable and necessary cost of such services
shall be paid by the insurer."
So, going back to the acupuncture
and massage therapy examples,
if that is viewed to be an adequate
and reasonable healthcare expense,
the insurer is required by state statute to pay it?
Lamondia: Yes.
Gants: Even though the health insurer
would have no such obligation?
Lamondia: Correct.
Gants: Alright.
And here, is there any spute, or is there...
Trying to go back to the findings made.
Were there findings that the medical marijuana here
was an adequate and reasonable healthcare service?
Lamondia: Yes, there was.
Gants: So, under section 30,
there is an obligation to pay that?
Lamondia: Correct, yes.
Gants: So, the question is whether or not
it would be a crime to do that?
Lamondia: Yes.
Gants: Whether or not the insurer
would be committing a crime to do it.
I guess I'll ask Mr. Nason about that,
but the theory, I guess, would be
that you have to say it'd be conspiracy
or aiding and abetting
when a health insurer who is required by state statute
and arguably required, pursuant to an order
of state supreme court to pay something,
they would, arguably, be found to be conspiring
or aiding and abetting with the worker to use marijuana,
would that have to be the theory of the crime?
Lamondia: That's what I read.
Gants: Is there any case anywhere,
where any prosecutor, federally, has made such an argument?
That, where a state supreme court interprets a state statute
that there's an obligation for reimbursement,
that the compliance with that statute
and with that court order or court direction
would be viewed to have the knowledge element involved
in conspiring or aiding and abetting?
Lamondia: I haven't found anything
on the criminal level, no.
Gants: Well, if it's not a crime,
the only kind here is that preemption
because of it being a crime, correct?
Lamondia: Correct, yes.
Gants: I have no further questions,
does any other justice have any questions?
Kafker: Yeah I have a follow up, Justice Kafker again.
If it's illegal under federal law,
how is it reasonable and necessary?
Particularly, when there are other drugs
that could serve him.
He may not like them as much,
how is it reasonable?
Anyone said that it's reasonable if it's illegal?
Lamondia: The Department of Industrial Accidents
found that it was reasonable and adequate.
To understand it, I think he received
a significant amount of relief.
It decreased his reliance on narcotic medication
and other medication that had terrible side effects.
There's such a move at the department these days
to move away from all the narcotic medication.
They have all these programs designed to reduce narcotics.
If medical marijuana is one of the ways to move away
from some of the heavier and more negative drugs
then that certainly is a reasonable form of treatment.
And, if it's successful in reducing pain,
then it's certainly an adequate treatment.
Kafker: Did they actually use those terms,
that it fits that definition?
Lamondia: Yes.
Kafker: They use that in their analysis?
Lamondia: Yes.
Kafker: Okay.
The idea that this would not be payable
for health insurance-
I mean, acupuncture is completely legal everywhere.
Any cases in which health insurance
picks up this type of stuff?
This dichotomy between the workers comp system
and the health insurance system.
Are there any cases out there that talk about
that it would be impermissible
to do this under the health insurance,
but it's required under the workers comp?
Any guidance on that?
Lamondia: I'm not even saying it's not impermissible
to do it under health insurance,
just that it doesn't require them to do it.
If Blue Cross and Blue Shield
wants to expand it to it's list, I think it certainly can.
But, the law just says it's not required to.
Kakfer: Maybe I misinterpreted
your back and forth with the chief.
My understanding was, the chief said,
use the example of acupuncture,
they don't have to pay for it under their health insurance.
But, they would be required to do so under workers comp.
Lamondia: Right.
Kafker: That's news to me,
is there any examples of that anywhere that I can look up?
Lamondia: I just know certain carriers
don't offer acupuncture
as a covered service, even though it's a legal service.
Some health carriers-
Kafker: But, then it's required then?
The workers comp decisions that say
that it's required to be paid by the workers comp insurer?
Lamondia: Right, if it offers a benefit
and it has a purpose.
There's an analysis to any type of treatment,
even if it's a surgical procedure,
is this employee going to benefit by the procedure?
And, if so, then it's reasonable and adequate care.
We deal with a lot of issues over whether
even a given surgery would be beneficial to an employee
if it's only fifty-fifty chance of success.
All types of treatment has that analysis before the board,
as to whether there's going to be a benefit.
Kafker: But again, there's case law.
Either workers comp case law or the Nason treatise.
We're gonna be able to find that in somewhere?
Lamondia: I would believe so, yes.
Kafker: Okay, thank you.
Lamondia: Thank you.
Gants: Any further questions, justices?
Okay.
Now, speaking of the Nason treatise, Mr. Nason you're up.
Nason: Shall I start my summary?
Gants: You may.
Nason: Okay.
As you know, section 7 has limitations.
The limitation are, one,
that no health insurer shall be required,
as Central is a health insurer, I submit.
I think it's pretty clear that Central is a health insurer
by health insurance benefits and wage replacement benefits.
It's pretty clear under section 13 and 30
that they are required to pay
feasible and necessary health insurance benefits
including acupuncture and massage therapy.
And, yes, you will find states law in my treatise
that has been taken over by reviewing board judge...
(justice speaking name)
Thank you.
Further, that no government agency or authority
such as the Department of Industrial Accidents,
shall be required to reimburse any person
whether he spends it on medical marijuana.
It's also clear,
that under the CSA controlled substances act,
the federal law,
that the manufacture, distribution, possession,
payment, use of marijuana, is a crime.
There's no exception to that.
And, under the supremacy clause
of the United States Constitution,
the United States shall preempt state law
when a positive conflict presents itself
as it does, in this case.
And, not withstanding a shifting policy position,
of various presidents and the attorney generals
that have served under them,
the law has not changed.
And, the use, sale, possession of marijuana
is still a crime.
Massachusetts recognizes this
and they say so in their limitations.
It expressly stated
that you will not be indemnified and protected
against federal law, in section 7's limitations.
Further, they have said, and the case law has said it,
and you have all been talking about it
for the last 45 minutes,
that Central Mutual does not want to risk being charged
as an aider and abettor
to the commission of a federal crime.
You've also been discussing,
and, I think it's pretty clear
that you all recognize and I believe
that, while you've been discussing
this regular action health insurance,
that they don't want to risk being charged
as aiders and abettors,
which is why they're not voluntarily stepping to the plate
and offering medical marijuana as one of their services.
Despite the fact that many of them don't even offer
massage therapy or acupuncture
as one of their services covered under their policies.
Further, there is no objective scientific evidence
that medical marijuana has any accepted medical use,
nor has any FDA approval.
Further, right off the bat in the limitation section,
Massachusetts recognizes
that marijuana can impair one's ability to drive boats,
drive cars, operate machinery, et cetera.
It does impair one's ability.
Further, the department of Industrial Accidents
has no enforcement power.
So, if an order were to have issued, hypothetically,
in favor or Mr. Wright or if this court were to find
that Mr. Wright is entitled
to be reimbursed medical marijuana by my client,
Central Mutual, then my client would not voluntarily pay it.
The employee would have to take that order
and go to the superior court to have it enforced,
to have Central Mutual pay it.
The likelihood that Cental Mutual will pay it
is slim and none
because they would not want to risk paying it
and then be exposed to criminal prosecution.
And, likewise, Central Mutual would probably turn around
and request reimbursement under section 37,
the Second Injury Fund act, where they have an agreement
with the trust fund to reimburse up to 75 percent
in any benefits they are required to pay
on behalf of Mr. Wright.
And, would request reimbursement through the trust fund
for benefits, including medical marijuana,
should they ultimately have to pay it.
The trust fund, I am sure, would refuse to pay it.
They would also seek an enforcement order
from the superior court.
And guess what, the superior court,
with them being in the position
of violating both the state law and the federal law,
query, what do we do then?
The superior court would be violating the state law
which says, no authority or agency
shall be required to reimburse for medical marijuana
nor shall a health insurer be required to reimburse
for medical marijuana.
That would create one heck of a quandary
for the superior court, for the state agency,
and for the insurer who would be facing a criminal act.
Finally,
the American Property Casualty Insurance Association,
filed amicus brief,
they've made many of the same arguments
that Central Mutual has made in this case.
However, there is one disturbing comment they made
in page four of their brief.
They said that if an order or if this court were to find
that Mr. Wright were entitled to reimbursement
of medical marijuana under the workers compensation act.
It could potentially destabilize
the Massachusetts workers compensation market.
I can't, specifically, myself,
say what that means.
However, if it means that workers compensation insurers,
health insurers, would leave the state
or because they don't want to be exposed
to violating the CSA and be exposed to federal prosecution,
that would be a tremendous disservice
to the importers employees
of the commonwealth Massachusetts.
And, what I would say in closing
is, when and or if congress changes the law
we are all, and when I say "we", I mean the courts,
are bound by the rule of law
and we would follow the rule of law
until the U.S. Congress decides to change that law.
We are a nation that should be following the rule of law
and the federal rule of law is that rule of law,
despite whatever our personal preferences are,
and until it changes, we have no choice
but to follow that rule of law.
Thank you.
And I'll answer any questions.
In fact, if you want,
I anticipated some of the questions with regards to-
Gants: Mr. Nason?
Nason: Yes judge?
It's time for us to ask questions.
You may anticipate them, but,
you're gonna have to wait to hear from them.
So, Justice Lenk you may proceed.
Lenk: I wondered, Mr. Nason,
whether you are familiar with a case from New Jersey
that we have not a chance to read
and apparently has just come out?
Nason: I'm vaguely familiar with it.
I know that it's not the highest court in that state
to rule on it, and I'm not intimately familiar with it,
I must confess.
Lenk: Okay, alright.
Well, the questions that I would ask
are the ones I think that Justice Gants is gonna pursue,
so I'm gonna let him do that later.
I'm not gonna take up any time.
Justice Gaziano may certainly ask any questions he wants
as the chief permits it.
Gants: Justice Gaziano.
Gaziano: Thank you, I have no questions.
Thank you.
Gants: Justice Lowy.
Lowy: Sure, thank you.
This New Jersey appellate division of the superior court,
determined that a hypothetical conflict
of possible punishment.
Because there is, in fact, a preemption.
But, doesn't constitute a reason to not reimburse
for medical marijuana.
Basically what, if I understand it,
New Jersey superior court is saying
is that conflict doesn't suffice to satisfy,
potential conflict doesn't suffice to satisfy preemption.
What do you say about the issue
of the unlikelihood of a prosecution?
Is the unlikelihood of a prosecution
enough to say that there's not preemption
or even that it's really unlikely?
Nason: No, I don't think so
because then you're talking about
shifting the winds of policy
that is made by either the president,
the attorney general, it doesn't change the fact
that the law is still on the books.
The federal law is still on the books,
and is still the law of the land.
And is still, the supreme law of the land
and if there's a positive conflict
between the state law and the federal law,
the federal law is gonna win out every single time.
In fact, by analogy,
I might bring up judge Joseph's situation
when she was indicted under the ICE statute.
Where she actually took positive steps
to aid and abet an undocumented worker.
But, she was the first judge since 1786, I believe,
to have been indicted by an attorney general
in any state in the commonwealth of Massachusetts.
That was a policy decision made by president Trump
down to our attorney general here in Massachusetts
to indict her as a message, sending a message to our state
that we can arrest judges for aiding and abetting.
It never occurred in hundreds of years
that any judge was indicted.
It's hypothetical but, it is a mirror image
of what could happen.
In our case, it could happen to an insurance company
and would be-
Lowy: Let me ask you this,
because the chief was asking a couple questions about this.
Assume that we're dealing with your client
being a health insurance provider,
for the purpose of my question.
Not in terms of asking questions about the regulations
or section 7B.
Are they really an active participant
in the commission of a crime
if they are following a state court order?
Would there be some analogy to dress a necessity defense?
Nason: They'd be in a tough position.
They'd be caught between, basically,
violating or refusing to abide by a court order.
And probably, their poor attorney would be held in contempt
for violating that order.
Of course their fines, monetarily,
would significantly mount.
There would be nothing to prevent
attorney to charge Central
with aiding and abetting and providing money
to interstate commerce.
Because they'd have to transfer that money
through the baking system to pay and cut a check
to Mr. Wright to reimburse him for his medical marijuana.
That would involve a federal system,
and that would involve interstate commerce
and the commerce clause.
Which would be a violation of (laughs) interest in commerce.
It would also bring into effect
Central Mutual's licensing provisions
to write in all of the states that they write,
workers compensation and other lines of insurance.
Lowy: Alright, he answered my question,
I have nothing else chief.
Gants: Justice Budd.
Budd: I have no questions, thank you.
Gants: Justice Cypher.
Cypher: I have no questions, thank you.
Gants: Justice Kafker.
Kafker: I'm confused, because you seem to...
If we take your argument to it's logical extent
I take it you're saying the whole system's illegal, right?
Not just requiring your client to do it,
you're basically saying all of our medical marijuana laws,
it's all illegal and unenforceable, right?
Is that what you're saying?
Nason: As requiring an insurer, yes.
As requiring any party that does not want to participate
in the state laws program, yes, I am saying that.
I believe-
Kafker: Are you saying then that the-
What saves this, is the fact that third parties
are not being required to participate in this.
I'm just not sure I understand how that works
in terms of preemption analysis.
Nason: Well, for example, our state law
and I think most of the state laws would say
a physician may, if he or she wants to,
be a registered physician,
to prescribe medical marijuana, can do so.
And be protected under the state law.
But, they cannot be forced to participate in the program.
Because it is a federal crime.
You cannot force them to participate,
just like you cannot force anybody to participate.
However, if an individual
wants to voluntarily take the risk, if you will,
to buy marijuana, use marijuana,
be a doctor and prescribe marijuana,
you can do so.
And, you will not be prosecuted under state law.
It does not mean you're immune from prosecution
under federal law.
I think that's true in every single state
that has legalized medical form recreational marijuana.
Kafker: You, briefly in your introductory statement,
addressed the questioning the chief was asking.
Could you slow down and explain to me
what you were saying there in the beginning
about acupuncture and this and that?
I'm trying to understand that argument
that there are certain things
that workers comp insurers have to pay
that health insurers do not have to pay.
I thought you addressed that,
but I couldn't follow what you were saying.
Nason: I'm sorry, I apologize.
Kafker: No, no, maybe it's me, you know?
Nason: If that employee and his or her physician
can justify to a judge, an administrative judge,
that is, the judge at the trial level,
that a particular procedure, such as massage therapy
or acupuncture, or chiropractic treatment
is a reasonable and necessary medical treatment
that will help the employee with their pain,
with the improvement of their medical condition
that will help restore them to a better quality of life
or that will allow them to return to the workforce
then it will be deemed a reasonable and necessary
and reasonable medical treatment.
And, the judge can award and order the insurer
to pay for that medical treatment.
Unlike a contractual benefit
that might come under a health inaction insurance policy.
Kafker: How do you apply the analogy
to the marijuana hearing then?
Because they found, according to your sister,
that this was reasonable and necessary to his health.
So, why is this different?
Nason: It's different for one major reason, we stipulated
that if Mr. Wright feels that he receives a positive benefit
by using medical marijuana, so be it.
If he feels he's better because of it, we are all for it.
And, not on our dime and not at the risk
of Central Mutual being prosecuted
for paying for medical marijuana.
If Mr. Wright wants to buy medical marijuana
on his own dime, and risk himself being prosecuted
under the federal law, so be it.
If he gets off opioids, we're happy about that.
He's much better off being off of opioids,
not being addicted to it.
Central Mutual, as an insurance company,
is happy that he's not being addicted
to those kind of drugs.
Kafker: Can I switch?
Because we have limited time.
I don't understand how you can impose this cost
on the trust fund.
Explain that to me, why is that the case?
Why would the trust fund have to pick this up?
Nason: Because Mr. Wright had a pre-existing impairment
before his industrial injury,
we were able to negotiate with the trust fund
that his injury (statics) his pre-existing condition,
his disability was substantially greater
because of his pre-existing condition
than it would have been,
had he not had that pre-existing condition.
As such, we filed what we call
a second injury fund claim against trust fund
and we reached an agreement with them
to reimburse us up to 75 percent
of any future benefits that-
Kafker: Okay, you haven't- neither side
has briefed this issue.
Nason: I have briefed it
as the last part of my argument.
I have included the approved section 37 agreement
in my brief, in the appendix.
Kafker: Bear with me Mr. Nason.
Having done some of this before,
pre-existing stuff is very complicated.
You have a real discussion in your brief,
I read your brief but I forgot that.
(both justices speaking)
Nason: It's in there,
I believe it's the very last part of my brief.
The very last argument.
Kafker: Has the other side
addressed that as well in this?
Because I'm wondering whether a 16L submission
on the pre-existing issue...
Again, if it's fully briefed by both sides
I don't see any need to.
But, given how complicated pre-existing analysis is
in workers comp,
I hope it's not a couple of sentences in your brief.
That's all.
Nason: It was a done deal, if I might put it that way.
In that, we have an approved agreement, I attached it.
When we settled the case
the trust fund paid us $96,000
as part of the settlement.
Kafker: Refresh my recollection,
the trust fund is paid for by all employers by a surcharge?
How does it work, how does the trust fund work?
Nason: There are contributions made
to the trust fund by all employers every year.
Kafker: So essentially, 75 percent of this
would be picked up by all the employers in the commonwealth?
Nason: Essentially, that's a simple way of putting it.
I had the agreement in front of me but...
I have the agreement here.
It was dated, it's in the brief, it was dated
February 15, 2017.
It was signed by a colleague at my office
attorney Richard Schwartz, it was signed by-
Kafker: I get that there's an agreement,
I just want to make sure
we understand the legal consequences of the agreement
and the context of paying for marijuana treatment.
But essentially, what you're saying is,
that if we impose this,
75 percent of the cost will be imposed on the trust fund,
which is a collective responsibility.
Nason: Yes, in effect, yes.
The exact language in the agreement says
that the trust fund will reimburse Central Mutual
80 percent of 75 percent
of all future related medical expenses.
If you deem Mr. Wright to be entitled to you, the court,
be entitled to future medical or past medical expenses,
i.e. medical marijuana,
then we will turn around and request 75 percent
of the cost of that medical marijuana
from the trust fund,
through section 37 agreement.
The trust fund-
Kafker: Is the trust fund a governmental entity?
Again, I should know this but I don't remember.
Is it a governmental entity, the trust fund?
Is it a public entity or-
Nason: They are part
of the Department of Industrial Accidents.
They cover uninsured (statics) et cetera.
Kafker: Okay, that's all I have, thank you.
Nason: They're part of the St. Pierre Case
that was held at the appellate court
with the state pending this case.
Kafker: Okay.
Gants: Alright, before I start,
following up on Justice Kafkers questions,
I do invite both sides to, in a 16L letter,
to address the consequences, if any, of the fund.
So, I invite both sides, if they wish,
to write a short 16L
addressing whether there is any relevance
of the fund to the decision in this case.
Mr. Nason, let me just make sure I understand your position.
You agree that this particular individual
is better served by having taking medical marijuana
than by taking the alternative,
which would almost certainly be narcotics.
Is that correct?
Nason: If he says he feels better
and he functions better,
I'm not gonna argue with that.
Gants: Okay.
Nason: I can't say that I really agree with it,
having learned much more about it.
Quite honestly, I'm a child of the 60's,
in fact judge Gants and I are exactly the same age.
And, we grew up very close to each other in New York.
Having learned now, looking at the menu's involved
with both medical and recreational marijuana,
THC is really the ingredient
that the Controlled Substances Act
was aimed at making illegal.
THC is what makes people high,
and when you're high you feel great.
I'm not a scientist and I can't speak to this,
but going back to my wild years, if I will,
if I may say so, the THC- I mean I felt great!
I was either mellow or I felt no pain at all,
or I was happy.
Maybe the same thing has happened to Mr. Wright, but-
Gants: Okay, let me,
without getting into more details
(Nason laughing)
to the glory of your youth in the 60s.
Do you agree that his use of medical marijuana here
was a reasonable and necessary healthcare expense
under section 30?
Nason: I agree that he might have felt better.
Gants: Okay, well that's not my question.
My question-
Nason: I'm not a doctor-
Gants: You have an obligation, as you well know
to pay the reasonable and necessary cost of services.
Services, I believe,
include adequate and reasonable healthcare services.
But, for your argument that it is preemptive,
Do you agree that there would be an obligation to pay?
Nason: All I can agree to
is that if he says he feels better,
and it got him off opioids,
then I agree that, that's a good outcome.
Gants: Okay, well let me rephrase the question.
If congress changed the law
to say that medical marijuana is to be treated
as opioids, which may be viewed to have medical benefit
and can be prescribed.
Would you agree that there would be an obligation to pay?
Nason: That makes a whole new ball game,
your honor.
Gants: Okay.
Nason: And I would possibly electively say, yes.
Gants: Okay, so then the question is
whether it would be a crime for the workers comp insurer
to pay if it were mandated, correct?
Nason: If it were not a controlled 1 substance,
and it were not deemed a federal crime,
and my client was not exposed to the risk
of federal prosecution, then we would have to pay for it.
Gants: Okay, now what is the crime
which you say they would be exposed to?
What crime could you say, arguably,
they would have committed?
Nason: Under the present law,
they would be aiding and abetting
by paying for, by reimbursing, by allowing him
to procure an illegal substance, medical marijuana.
A class 1 substance under the Controlled Substances Act.
Which, is still a crime under federal law.
Gants: Okay.
And, I'll ask you the same question I asked your sister,
are you aware of any case, federal or state,
in which anyone has been prosecuted
either as a co-conspirator or a joint venturer,
or an aider and abettor,
for reimbursing a person for the medical expense
involved in medical marijuana?
Nason: No I am not, your honor.
Gants: I have no further questions,
any questions of my fellow justices?
Kafker: I have one follow up.
So, the chief asked you if it was reasonable and necessary
and it wasn't a crime and preempted.
But, you left out a step, right?
You still believe that you're a health insurer.
And, therefore, you're not required
to pay by the statute itself and regulations,
is that correct?
Nason: That's correct,
I believe that we are a health insurer.
Kafker: So, separate and apart from preemption,
you believe you have no obligation to pay
because of 7B, correct?
Nason: That's correct.
Kafker: Okay.
Nason: We are required to pay health benefits,
medical benefits, and wage replacement benefits
to injured workers.
Yeah, but my question is,
at least I thought you were arguing
although you wait until the very end of your brief.
I thought you were arguing that 7B says
you are not required to pay marijuana expenses.
Therefore, forget about whether you have any exposure
to aiding or abetting liability.
You still don't have to pay because you're a health insurer
and they carved you out.
They carved out medical marijuana payments
in the statute itself, right?
Or am I misinterpreting that?
Nason: They did, however,
let me ask, if I may, we would not be-
(multiple justice speaking)
If somebody ordered us to pay for cocaine,
I don't think we'd pay for that either.
Because that's illegal, in the same way
that medical marijuana is illegal under federal law.
Kafker: Right, but I'm cutting out
the illegality for a second.
I'm just saying, forget about whether it's illegal or not
the statute 7B, the regulation said,
you do not have to pay for medical marijuana.
Whether it's legal or illegal,
doesn't the statute carve out that from your obligations
if you're a health insurer?
Nason: Yes.
Kafker: Okay, I have no further questions.
Gants: Okay, I've got other questions,
Mr. Nason, that statute that was referring to section 7
says nothing in this law, meaning the medical marijuana law,
requires any health insurance provider,
any government agency or authority,
to reimburse any person for the expenses
of the medical abuse of marijuana.
Is it your suggestion that where it says,
"nothing in this law", would mean
that even if you were required under a different law,
chapter 152 section 30,
that it would protect you from paying under section 30
because section 7 says nothing in this law
shall require you to?
Nason: No, because we can't ignore the federal law.
We'd have a positive conflict again.
Gants: Okay, so you're going back to the federal law.
You're not resting your argument on section 7?
Nason: No!
That's what creates the positive conflict
between the state and the federal law.
Gants: Okay, alright I have no further questions.
Any further questions of the justices?
Lowy: I'm completely confused now
by the last answer.
May I inquire chief?
Gants: Yes, justice L, you may.
Lowy: Okay.
So, for instance, the regulation
935 CMR 501, nothing requires any health insurer
provider, or government agency or authority,
to reimburse any person
for the expenses of medical use of marijuana.
And, section 7B, says that health insurance,
or government agencies
not required to reimburse any person
for the expenses of medical marijuana
nor authorize the use of it.
Is your position that if not for federal preemption
you would not be able to rely on that statute
and regulation to not reimburse?
Nason: For the federal law?
Lowy: Could you just rely on section 7B
and the regulation not to reimburse?
Nason: I believe so.
Lowy: Alright, fine.
Thank you, I have nothing else.
Gants: Okay, that concludes the argument
and we will commence in about two minutes, thank you.
Nason: Thank you, your honor.