NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557- 1030; SJCReporter@sjc.state.ma.us
SJC-12873
DANIEL WRIGHT'S CASE.
Suffolk. May 5, 2020. - October 27, 2020.
Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.1
Marijuana, Medical. Workers' Compensation Act, Insurer, Medical benefits. Words, "Health insurance provider."
Appeal from a decision of the Industrial Accident Reviewing Board.
The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.
Katherine L. Lamondia-Wrinkle for the claimant. Leonard Y. Nason (James E. Ramsey also present) for the insurer. Wystan M. Ackerman, for American Property Casualty Insurance Association, amicus curiae, submitted a brief. Matthew J. Walko & Pauline A. Jauquet, for Mass General Brigham Incorporated, amicus curiae, submitted a brief.
KAFKER, J. In the instant case we are asked to determine
1 Chief Justice Gants participated in the deliberation on this case prior to his death. 2
whether an insurance company may be ordered to reimburse an
employee for medical marijuana expenses pursuant to a general
provision of the Massachusetts workers' compensation scheme that
requires reimbursement of necessary and reasonable medical
expenses. The claimant, Daniel Wright, sought compensation for
$24,267.86 of medical marijuana expenses to treat chronic pain
stemming from two work-related injuries he sustained in 2010 and
2012. His claim was denied by an administrative judge, and the
denial was affirmed on appeal by the reviewing board of the
Department of Industrial Accidents (department). The reviewing
board concluded that marijuana's status as a federally illicit
substance preempted any State level authority to order a
workers' compensation insurer to pay for Wright's medical
marijuana expenses. We likewise conclude that the workers'
compensation insurer cannot be required to pay for medical
marijuana expenses, but do so based on the medical marijuana act
itself.
We recognize that the current legal landscape of medical
marijuana law may, at best, be described as a hazy thicket.
Marijuana is illegal at the Federal level and has been deemed
under Federal law to have no medicinal purposes, but
Massachusetts, as well as the majority of States, have legalized
medical marijuana and created regulatory schemes for its
administration and usage. Complicating and confusing matters 3
further, Congress has placed budgetary restrictions on the
ability of the United States Department of Justice to prosecute
individuals for marijuana usage in compliance with a State
medical marijuana scheme, and the Department of Justice has
issued, revised, and revoked memoranda explaining its marijuana
enforcement practices and priorities, leaving in place no clear
guidance.
The Commonwealth's original medical marijuana act, St.
2012, c. 369 (act or medical marijuana act), was carefully
drafted by its sponsors to take into account this most difficult
regulatory environment, with provisions specifically designed to
avoid possible conflicts with the Federal government. One such
provision of the law expressly states that "[n]othing in this
law requires any health insurance provider, or any government
agency or authority, to reimburse any person for the expenses of
the medical use of marijuana." St. 2012, c. 369, § 7 (B). See
G. L. c. 94I, § 6 (i). This provision recognizes that when
medical marijuana patients seek to recover the costs of such use
from third parties, including insurance companies engaged in
interstate commerce, the regulatory environment becomes even
more problematic. Under the plain language of this provision,
those insurers are not required to reimburse medical marijuana
expenses for a substance that remains illegal under Federal law.
We conclude that this specific language, and the Federal 4
concerns it seeks to address and avoid, is controlling and not
overridden by the general language in the workers' compensation
laws requiring workers' compensation insurers to reimburse for
reasonable medical expenses. A contrary reading of this
specific language, which states that health insurers and
government agencies and authorities are not required to
reimburse medical marijuana expenses, would have been completely
misleading to those who voted on it. It is one thing for a
State statute to authorize those who want to use medical
marijuana, or provide a patient with a written certification for
medical marijuana, to do so and assume the potential risk of
Federal prosecution; it is quite another for it to require
unwilling third parties to pay for such use and risk such
prosecution. The drafters of the medical marijuana law
recognized and respected this distinction.2
1. Background. a. Federal statutory landscape. The
Controlled Substances Act (CSA) provides the relevant Federal
legislative backdrop against which the current litigation
stands. Passed in 1970, the CSA creates a "closed regulatory
system making it unlawful to manufacture, distribute, dispense,
or possess any controlled substance except in a manner
2 We acknowledge the amicus briefs submitted by the American Property Casualty Insurance Association and Mass General Brigham Incorporated, in support of Central Mutual Insurance Company (Central Mutual). 5
authorized by the CSA." Gonzales v. Raich, 545 U.S. 1, 10, 13
(2005) (Raich). The CSA sets forth five schedules to classify
and regulate the use of controlled substances. Id. at 13. "The
drugs are grouped together based on their accepted medical uses,
the potential for abuse, and their psychological and physical
effects on the body." Id. "Schedule I contains the most severe
restrictions on access and use, and [s]chedule V the least."
Gonzales v. Oregon, 546 U.S. 243, 250 (2006). Marijuana is
classified under schedule I.3 See 21 U.S.C. § 812(c). Pursuant
to its schedule I classification, marijuana is deemed to have
(1) a high potential for abuse; (2) no currently accepted
medical use in the United States; and (3) a lack of accepted
safety for use under medical supervision. 21 U.S.C.
§ 812(b)(1). See United States v. Oakland Cannabis Buyers'
Coop., 532 U.S. 483, 493 (2001) ("Congress has made a
determination that marijuana has no medical benefits worthy of
an exception"). Accordingly, as a schedule I drug, marijuana
may not be prescribed. See id. at 491. The United States
Supreme Court has also rejected the contention that the CSA
includes an implicit necessity defense for the manufacture and
distribution of schedule I drugs on the basis of medical need.
3 Very recently, however, hemp-derived cannabidiol (CBD) was removed from schedule I. See Pub. L. No. 115-334, § 12619, 132 Stat. 4490, 5018 (2018). 6
Id. at 494.
The consequences of marijuana's status as a schedule I drug
are significant. With one exception not relevant here,4 the
manufacture, distribution, or possession of a schedule I
substance is a Federal offense. See 21 U.S.C. §§ 841(a)(1),
844(a). See also Raich, 545 U.S. at 14. An individual found in
possession of a schedule I substance may be sentenced to one
year of imprisonment, a fine of at least $1,000, or both. See
21 U.S.C. § 844(a). The same penalties also apply to anyone who
"attempts or conspires to commit" such an offense. See 21
U.S.C. § 846. Additionally, an individual who "aids, abets,
counsels, commands, induces or procures" the commission of a
Federal offense, including a violation of the CSA, may be
subject to the same penalties as the principal. See 18 U.S.C.
§ 2(a). Thus, it is a Federal crime not only to possess
marijuana, but also to conspire to do so or to aid or abet the
possession of marijuana. Accordingly, regardless of the legal
status of marijuana at the State level, marijuana users, and
those who aid or abet the distribution or possession of
marijuana, "remain[] potentially subject to Federal criminal
4 The Controlled Substances Act (CSA) provides a very narrow exception for the use of schedule I drugs in research studies that have been preapproved by the United States Food and Drug Administration. See 21 U.S.C. § 823(f). See also Gonzales v. Raich, 545 U.S. 1, 14 (2005). 7
prosecution." Barbuto v. Advantage Sales & Mktg., LLC, 477
Mass. 456, 460 (2017).
b. Massachusetts medical marijuana law. In 2012,
Massachusetts voters approved a ballot initiative to legalize
the use of marijuana for medicinal purposes in the Commonwealth.
See St. 2012, c. 369.5 The stated purpose of the act provides
that "there should be no punishment under state law for
qualifying patients, physicians and health care professionals,
personal caregivers for patients, or medical marijuana treatment
center agents for the medical use of marijuana, as defined
herein." See St. 2012, c. 369, § 1. The act first sets out
"the parameters of protection from State prosecution and
penalties that the act respectively gives to physicians and
health care professionals, qualifying patients and their
personal caregivers, and licensed dispensary agents."
Commonwealth v. Canning, 471 Mass. 341, 345 (2015). Pursuant to
the act, "[a]ny person meeting the requirements under this law
shall not be penalized under Massachusetts law in any manner, or
5 In December 2018, St. 2012, c. 369 (act), was codified as G. L. c. 94I. See St. 2017, c. 55, §§ 44, 82. See also Commonwealth v. Richardson, 479 Mass. 344, 349 n.7 (2018). During the time period for which Wright seeks reimbursement, however, the act remained in effect as originally enacted. Moreover, the statutory provisions relevant to our analysis remain substantively unaltered by the codification in G. L. c. 94I. For ease of reference, we will include parallel citations to the current statutory and regulatory scheme where appropriate. 8
denied any right or privilege, for such actions." St. 2012,
c. 369, § 4. See G. L. c. 94I, § 2. See also G. L. c. 94G,
§ 7. Further, "[a] qualifying patient or a personal caregiver
shall not be subject to arrest or prosecution, or civil penalty,
for the medical use of marijuana," provided he or she meets the
requirements of the law. St. 2012, c. 369, § 4. See G. L.
c. 94I, § 2. See also G. L. c. 94G, § 7. Additionally, "[t]he
lawful possession, cultivation, transfer, transport,
distribution, or manufacture of medical marijuana as authorized
by [the act] shall not result in the forfeiture or seizure of
any property." St. 2012, c. 369, § 6 (A). See G. L. c. 94I,
§ 2 (b) (4). The act then "establishes a medical marijuana
registration or licensing regime . . . that covers nonprofit
medical marijuana treatment centers, medical marijuana center
dispensary agents, and qualifying patients and personal
caregivers." Canning, supra.
At the same time, however, the act contains a number of
limitations. It provides that "[n]othing in [the act] requires
the violation of federal law or purports to give immunity under
federal law . . . [or] poses an obstacle to federal enforcement
of federal law." St. 2012, c. 369, § 7 (F), (G). See 935 Code
Mass. Regs. § 501.840(2)(f), (g) (2019). Additionally, and most
relevant here, the act states that "[n]othing in this law
requires any health insurance provider, or any government agency 9
or authority, to reimburse any person for the expenses of the
medical use of marijuana." St. 2012, c. 369, § 7 (B). See
G. L. c. 94I, § 6 (i). See also 935 Code Mass. Regs.
§ 501.840(2)(b). This language is substantially similar to
reimbursement restrictions found in at least twenty-two6 other
6 See Ark. Const. amend. XCVIII, § 6 ("This amendment does not require . . . [a] government medical assistance program or private health insurer to reimburse a person for costs associated with the medical use of marijuana unless federal law requires reimbursement"); Colo. Const. art. XVIII, § 14(10)(a) ("No governmental, private, or any other health insurance provider shall be required to be liable for any claim for reimbursement for the medical use of marijuana"). See also Alaska Stat. § 17.37.040(c) ("A governmental, private, or other health insurance provider is not liable for any claim for reimbursement for expenses associated with medical use of marijuana"); Ariz. Rev. Stat. § 36-2814 ("Nothing in this chapter requires . . . [a] government medical assistance program, a private health insurer or a workers' compensation carrier or self-insured employer providing workers' compensation benefits to reimburse a person for costs associated with the medical use of marijuana"); Cal. Health & Safety Code § 11362.785 ("This article does not require a governmental, private, or any other health insurance provider or health care service plan to be liable for a claim for reimbursement for the medicinal use of cannabis"); Del. Code Ann. tit. 16, § 4907A ("Nothing in this chapter requires . . . [a] government medical assistance program or private health insurer to reimburse a person for costs associated with the medical use of marijuana"); Fla. Stat. § 381.986(15)(f) ("Marijuana, as defined in this section, is not reimbursable under [Florida's workers' compensation statute]"); 410 Ill. Comp. Stat. 130/40(d) ("Nothing in this Act may be construed to require a government medical assistance program, employer, property and casualty insurer, or private health insurer to reimburse a person for costs associated with the medical use of cannabis"); Me. Rev. Stat. tit. 22, § 2426 ("This chapter may not be construed to require . . . [a] government medical assistance program or private health insurer to reimburse a person for costs associated with the medical use of marijuana"); Mich. Comp. Laws 10
§ 333.26427(c)(1) ("Nothing in this act shall be construed to require . . . [a] government medical assistance program or commercial or non-profit health insurer to reimburse a person for costs associated with the medical use of marihuana"); Mont. Code Ann. § 39-71-407(6)(c) ("Nothing in this chapter may be construed to require an insurer to reimburse any person for costs associated with the use of marijuana for a debilitating medical condition . . ."); Nev. Rev. Stat. § 453A.800 ("The provisions of this chapter do not . . . [r]equire an insurer, organization for managed care or any person or entity who provides coverage for a medical or health care service to pay for or reimburse a person for costs associated with the medical use of marijuana"); N.H. Rev. Stat. Ann. § 126-X:3(III)(a) ("Nothing in this chapter shall be construed to require . . . [a]ny health insurance provider, health care plan, or medical assistance program to be liable for any claim for reimbursement for the therapeutic use of cannabis"); N.J. Stat. Ann. § 24:6I- 14 ("Nothing in [the medical marijuana scheme] shall be construed to require a government medical assistance program or private health insurer to reimburse a person for costs associated with the medical use of cannabis . . ."); N.D. Cent. Code § 19-24.1-34 ("This chapter does not require . . . [a] government medical assistance program or private insurer to reimburse a person for costs associated with the medical use of marijuana"); Okla. Stat. tit. 63, § 427.8 ("Nothing in this act . . . shall . . . [r]equire an employer, a government medical assistance program, private health insurer, worker's compensation carrier or self-insured employer providing worker's compensation benefits to reimburse a person for costs associated with the use of medical marijuana"); Or. Rev. Stat § 475B.794 ("Nothing in [the medical marijuana statutes] requires . . . [a] government medical assistance program or private health insurer to reimburse a person for costs associated with the medical use of marijuana"); 35 Pa. Cons. Stat. § 10231.2102 ("Nothing in this act shall be construed to require an insurer or a health plan, whether paid for by Commonwealth funds or private funds, to provide coverage for medical marijuana"); R.I. Gen. Laws § 21-28.6-7(b)(1) ("Nothing in this chapter shall be construed to require . . . [a] government medical assistance program or private health insurer or workers' compensation insurer, workers' compensation group self-insurer, or employer self- insured for workers' compensation . . . to reimburse a person for costs associated with the medical use of marijuana"); Utah Code Ann. § 26-61a-112 ("Nothing in this chapter requires an insurer, a third-party administrator, or an employer to pay or 11
States with medical marijuana programs.7
c. Recent developments in Federal enforcement. Congress
has not acted to change marijuana's classification as a schedule
I drug since the legalization of medical marijuana in
Massachusetts. It remains illegal to possess or distribute.
See 21 U.S.C. §§ 841(a)(1), 844(a). Two years after the
enactment of the Commonwealth's medical marijuana law, however,
Congress passed an appropriations bill that included an
amendment to restrict the Department of Justice's ability to
prosecute medical marijuana patients. The amendment provides
that "[n]one of the funds made available in this Act to the
Department of Justice may be used, with respect to [an
reimburse for cannabis, a cannabis product, or a medical cannabis device"); Vt. Stat. Ann. tit. 18, § 4474c(b)(4) ("This chapter shall not be construed to require that coverage or reimbursement for the use of marijuana for symptom relief be provided . . . for purposes of workers' compensation . . . ."); Wash. Rev. Code § 69.51A.060(2) ("Nothing in this chapter establishes a right of care as a covered benefit or requires any state purchased health care . . . or other health carrier or health plan . . . to be liable for any claim for reimbursement for the medical use of marijuana").
7 Four years after voters approved the medical marijuana ballot initiative, Massachusetts voters approved another ballot initiative legalizing the recreational use of marijuana. See St. 2016, c. 334. Use of the Commonwealth's medical marijuana program remains widespread even in the wake of the legalization of recreational marijuana, however. In 2019, nearly 1.3 million ounces of medical-use marijuana were sold in Massachusetts. See Cannabis Control Commission, The Cannabis Control Commission & Attorney General's Office Joint Report, at 8 (Feb. 2020). As of January 2020, there were over 60,000 active medical marijuana patients in the Commonwealth. Id. 12
enumerated list of States, including Massachusetts], to prevent
such States from implementing their own State laws that
authorize the use, distribution, possession, or cultivation of
medical marijuana." Pub. L. No. 113-235, § 538, 128 Stat. 2130,
2217 (2014). The amendment thus "prohibits [the Department of
Justice] from spending funds from relevant appropriations acts
for the prosecution of individuals who engaged in conduct
permitted by the State Medical Marijuana Laws and who fully
complied with such laws." See United States v. McIntosh, 833
F.3d 1163, 1177 (9th Cir. 2016). The amendment presently
remains in effect through December 11, 2020. See Pub. L. No.
116-159, §§ 101(2), 106(3) (2020); Pub. L. No. 116-93, § 531,
133 Stat. 2317, 2431 (2019).
At the same time, the Department of Justice has reversed
its own stance toward the prosecution of medical marijuana cases
multiple times. The Department of Justice issued a series of
memoranda during the administration of President Barack Obama
advising Federal prosecutors not to prioritize the prosecution
of individuals engaged in marijuana-related activities pursuant
to a State medical marijuana law. See D.W. Ogden, Deputy
Attorney General, Memorandum for Selected United States
Attorneys: Investigations and Prosecutions in States
Authorizing the Medical Use of Marijuana (Oct. 19. 2009); J.M.
Cole, Deputy Attorney General, Memorandum for All United States 13
Attorneys: Guidance Regarding Marijuana Enforcement (Aug. 29,
2013). This guidance was later rescinded under the
administration of President Donald Trump. See J.B. Sessions,
Attorney General, Memorandum for All United States Attorneys:
Marijuana Enforcement (Jan. 4, 2018).
Following the rescission of the Obama administration
guidance, the United States Attorney for the District of
Massachusetts, Andrew Lelling, issued a statement that he could
not "provide assurances that certain categories of participants
in the state-level marijuana trade will be immune from federal
prosecution." See Department of Justice, United States
Attorney's Office, District of Massachusetts, Statement from
U.S. Attorney Andrew E. Lelling Regarding Federal Marijuana
Enforcement (Jan. 8, 2018). In another statement issued later
the same year, Lelling reiterated that he would not "effectively
immunize" Massachusetts residents from Federal marijuana law
enforcement. See Department of Justice, United States
Attorney's Office, District of Massachusetts, Statement from
U.S. Attorney Andrew Lelling Regarding the Legalization of
Recreational Marijuana in Massachusetts (July 10, 2018). He
further stated, however, that he would focus prosecutorial
resources on issues of overproduction, sales to minors, and
organized crime and interstate transportation of drug proceeds.
Id. 14
d. Facts. We turn now to the facts of the instant case.
On October 19, 2010, the claimant, Wright, injured his right
knee while stepping off a ladder in the course of his
employment. At the time, he was employed by Unitek Global
Services (Unitek) as a cable installer. He underwent surgery,
recovered, and sought new employment. He eventually went to
work for Pioneer Valley Electric as an electrical apprentice.
On May 15, 2012, he sustained a second injury to his right knee
at work. Wright underwent another surgery, which resulted in
numerous postoperative complications. He developed deep vein
thrombosis and eventually was diagnosed with complex regional
pain syndrome. As a result, Wright began to suffer from chronic
leg pain, difficulty sleeping, and anxiety, and he became quick
to anger. In August 2013, Wright was evaluated for, and was
issued, a certification to enroll in Massachusetts's medical
marijuana program. Wright subsequently began using medical
marijuana to manage his chronic pain. Wright's use of medical
marijuana reduces his pain, increases his mobility, improves his
sleep, and reduces his anxiety and anger. Wright has also been
able to eliminate the use of any opioids as a result of his
medical marijuana use.
In 2014, Wright filed a workers' compensation claim for
permanent and total disability benefits with the department. On
May 3, 2016, Wright settled his workers' compensation claim 15
against Unitek's insurer as well as his claim against Pioneer
Valley Electric's insurer, Central Mutual Insurance Company
(Central Mutual). Pursuant to the settlement agreements, Wright
was provided with lump sums to compensate him for the medical
expenses incurred as a result of his injuries. The settlement
agreement with Central Mutual also provided that Central Mutual
"agreed to accept ongoing liability for the right knee with the
caveat that payment of future medical treatment must be
reasonable and necessary and causally related" to Wright's
injury."
On October 19, 2016, Wright filed a claim for workers'
compensation benefits under G. L. c. 152, §§ 13 and 30, seeking
reimbursement for medical expenses incurred from his medical
marijuana treatment. The claim was initially denied on May 10,
2017. Wright appealed from the denial, and a hearing was held
before an administrative judge. At the time of the hearing,
Wright was seeking $24,267.86 in reimbursement for medical
marijuana expenses incurred from February 11, 2016, to August
28, 2017. Wright testified that he spent approximately one
hundred dollars every one to two weeks on marijuana vaporizing
products. He further testified that, for the period during
which he had purchased edibles, he spent approximately seventy-
five dollars per day.
During the hearing, Central Mutual represented to the 16
administrative judge that it had entered into an agreement with
the Workers' Compensation Trust Fund (trust fund) pursuant to
G. L. c. 152, § 37,8 for the trust fund to reimburse Central
Mutual for eighty percent of the maximum amount reimbursable by
the trust fund for medical expenses. Central Mutual further
indicated that, if ordered to reimburse Wright for his medical
marijuana expenses, it would in fact seek reimbursement from the
trust fund.
The administrative judge found that Wright's testimony as
to the positive benefits he receives from medical marijuana was
"entirely credible." Nonetheless, the judge concluded that
Central Mutual could not be ordered to pay in light of
marijuana's illegal status at the Federal level. He also
determined that the medical marijuana act precluded him from
ordering Central Mutual to reimburse the claimant.
Wright appealed from the decision to the reviewing board of
the department. The reviewing board affirmed the administrative
judge's denial. It observed that the CSA "clearly and
manifestly criminalizes" the activities for which Wright was
seeking compensation, and that ordering Central Mutual to pay
8 The Workers' Compensation Trust Fund provides partial reimbursement to second insurers for payments made to employees who have previously suffered a prior injury. See G. L. c. 152, § 37, second par. 17
would put it at risk of Federal prosecution. Wright appealed,
and we transferred the matter to this court on our own motion.9
2. Discussion. We examine the reviewing board's decision
pursuant to the standards of G. L. c. 30A, § 14 (7). Under
§ 14 (7), "[w]e may reverse or modify the board's decision
where, among other reasons, it is based on an error of law, or
is arbitrary, capricious, or otherwise not in accordance with
law." Spaniol's Case, 466 Mass. 102, 106 (2013). See G. L.
c. 30A, § 14 (7) (c), (g). The department's interpretation of
the workers' compensation statute is entitled to deference. See
Camargo's Case, 479 Mass. 492, 497 (2018). "However, where the
statute is not one that the [department] administers, no
deference is due." Id. In such instances, we exercise de novo
review. Id. In the instant case, we conclude that the
determinative legal questions involve interpretation of the
Commonwealth's medical marijuana law and other Massachusetts and
Federal laws not administered by the department. We therefore
exercise de novo review without deference to the reviewing
board's legal interpretation.
As outlined supra, prior to the passage of the medical
marijuana act, marijuana was illegal under both Massachusetts
9 Another case involving a workers' compensation claim for medical marijuana reimbursement has been stayed in the Appeals Court pending the outcome of this case. See St. Pierre vs. T.E. Greenwood Construction, Appeals Court docket no. 2018-P-0971. 18
and Federal law and was not a reasonable medical expense
reimbursable pursuant to G. L. c. 152, § 30, under which "an
employer is obligated to pay the reasonable and necessary
medical expenses resulting from an employee's work-related
injury." McElroy's Case, 397 Mass. 743, 750 (1986). See G. L.
c. 152, § 13. Federal law has not changed. The only issue is
the effect of the medical marijuana act.10 Thus, to determine
whether medical marijuana expenses may be compensable at all, we
must look to the provisions of the medical marijuana act. We
must also seek to avoid conflict with Federal law and possible
preemption under the supremacy clause. See Ajemian v. Yahoo!,
Inc., 478 Mass. 169, 184 (2017), cert. denied sub nom. Oath
Holdings, Inc. v. Ajemian, 138 S. Ct. 1327 (2018) (absent clear
legislative intent to contrary, courts have duty to construe
statutes in manner that disfavors preemption). The act itself,
we conclude, is drafted with these concerns in mind. It
expressly recognizes the Federal legal pitfalls and seeks to
steer well clear of them by carving a narrow path through the
marijuana regulatory thicket.
a. Meaning of reimbursement limitation provision. The
10Although possession of less than one ounce of marijuana was decriminalized by ballot initiative in 2008, it was still illegal at the time of the medical marijuana law's enactment. See Commonwealth v. Cruz, 459 Mass. 459, 473 (2011) ("decriminalization is not synonymous with legalization"). 19
plain language of the reimbursement limitation provision states
that nothing in the medical marijuana law "requires any health
insurance provider . . . to reimburse any person for the
expenses of the medical use of marijuana." St. 2012, c. 369,
§ 7 (B). To fully understand and interpret this provision, we
must also look to the broader context of the over-all medical
marijuana scheme and regulatory environment. As explained
supra, the stated purpose of the act was to protect patients,
caregivers, and medical professionals from prosecution or
punishment under Massachusetts law for engaging in the voluntary
medical use of marijuana. See St. 2012, c. 369, § 1. The act
also recognized that marijuana possession and distribution
remain illegal under Federal law and that the Commonwealth has
no authority to alter the illegal status of marijuana at the
Federal level. St. 2012, c. 369, § 7 (F), (G). See Raich, 545
U.S. at 29. "The Supremacy Clause unambiguously provides that
if there is any conflict between federal and state law, federal
law shall prevail." Raich, supra. Providing authorization for
medical marijuana use in this environment remains somewhat of a
high wire act, and the statute seeks to minimize the possibility
of Federal prosecution or Federal preemption by carefully 20
setting forth the scope of its protections.11 It is within this
context that the statute expressly states that nothing in the
law requires health insurers to reimburse any person for medical
marijuana expenses.
As the statute recognizes, requiring companies that insure
the health of medical marijuana patients to pay for their
marijuana usage raises the stakes much higher. If insurers were
required to make such payments, the size and scope of the
legalization of medical marijuana would be substantially
expanded, raising concerns about Federal enforcement and
preemption. First, unlike the patients and doctors covered by
the act, insurance companies would not be participating in the
11Indeed, in Bourgoin v. Twin Rivers Paper Co., 2018 ME 77, ¶¶ 29-30, the Supreme Judicial Court of Maine concluded that the CSA preempted Maine's medical marijuana law where a claimant sought reimbursement for medical marijuana expenses. Other courts that have been skeptical of the preemption argument in the context of compulsory reimbursement of marijuana have relied on the recent changes in Federal enforcement of the CSA. See Appeal of Panaggio, 172 N.H. 13, 19 & n.2 (2019) (remanding case for further analysis of preemption issue where court had been "left to speculate" about whether insurer would be exposed to criminal prosecution, while noting existence of Obama administration's medical marijuana policy and appropriations amendment); Lewis v. American Gen. Media, 2015-NMCA-090, ¶ 32 (2015) (rejecting preemption argument as speculative in light of Department of Justice guidance and appropriations amendment, which demonstrate "equivocal federal policy"). However, the recent rescission of the Obama administration's medical marijuana guidance demonstrates that enforcement is transitory and subject to change. Further, as the court in Bourgoin observed, such guidance "was directed only to the question of enforcement of laws but did nothing to challenge their existence" (emphasis in original). Bourgoin, supra at ¶ 27. 21
patient's use of a federally proscribed substance voluntarily.
It is one thing to voluntarily assume a risk of Federal
prosecution; it is another to involuntarily have such a risk
imposed upon you. As discussed supra, possession and
distribution of marijuana remain federally illegal, as does
aiding or abetting such possession or distribution. See 18
U.S.C. § 2(a); 21 U.S.C. § 844(a). It is not unreasonable,
given the current hazy regulatory environment and shifting winds
of Federal enforcement, for insurance companies to fear that
paying for a claimant's marijuana could expose them to potential
criminal prosecution. Further, insurance companies are
typically involved in interstate commerce, thereby raising
Federal regulators' concerns. Requiring interstate insurers to
participate in the Massachusetts medical marijuana scheme would
extend the reach of the Massachusetts act well beyond the
Commonwealth's borders. Reimbursement may also increase usage
and the amounts of money at stake, thereby further expanding the
scope of the statute, and thus Federal concerns. By providing
that the act does not "require" insurers to reimburse medical
marijuana expenses, the reimbursement limitation provision
protects third parties from being compelled to pay for the use 22
of a federally proscribed substance.12
We have previously considered the question of involuntary
involvement under the act in Barbuto. In that case, a medical
marijuana patient with Crohn's disease was terminated from her
employment after testing positive for marijuana use. Barbuto,
477 Mass. at 458. In our decision, we indicated that, in
seeking to use marijuana to address an illness specifically
delineated by the statute, she was simply exercising her rights
under the act. See St. 2012, c. 369, § 2 (C) (definition of
"debilitating medical condition" under medical marijuana act
explicitly includes Crohn's disease). See also St. 2012,
c. 369, § 4 (act declares that patients shall not be denied "any
right or privilege" on basis of their medical marijuana use).
The medical marijuana patient in Barbuto commenced an
action for handicap discrimination, in violation of G. L.
c. 151B, § 4 (16), along with a number of other related claims.
Barbuto, 477 Mass. at 458-459. She was not seeking third-party
reimbursement. Rather, her complaint asserted that she was a
"handicapped person" within the scope of the Commonwealth's
handicap discrimination law, and that her medical marijuana use
12Additionally, by prohibiting reimbursement, the act forecloses the possibility of disputed claims leading to defensive litigation. Such litigation would only increase the likelihood of the entire statute being challenged on preemption grounds. 23
at home was a reasonable accommodation required by her employer.
See id. at 461. The defendants waived the argument that Federal
preemption barred the plaintiff's claims, thereby limiting our
discussion of the issue in that case. See id. at 466 n.9.
A provision of the act that was at issue in Barbuto
expressly stated that the act did not "require[] any
accommodation of any on-site medical use of marijuana in any
place of employment." St. 2012, c. 369, § 7 (D). We concluded
that by specifying that the act did not require "on-site"
accommodation of medical marijuana use, this limitation
"implicitly recognizes that the off-site medical use of
marijuana might be a permissible 'accommodation.'" Barbuto, 477
Mass. at 464-465. We emphasized that "accommodation" was a term
of art under the handicapped discrimination laws, and the
statute's drafting appeared to recognize the issue and the
distinction between on-site and off-site accommodation. Id.
Here, by contrast, the reimbursement limitation language does
not make any sort of similar implicit recognition. Rather, the
language broadly states that nothing in the act requires
reimbursement to "any person for the expenses of the medical use
of marijuana." St. 2012, c. 369, § 7 (B).
The more expansive limitation language in the reimbursement
subsection comports with the different legal stakes at issue
here. As we recognized in Barbuto, "[t]he only person at risk 24
of Federal criminal prosecution for [the plaintiff's] possession
of medical marijuana is the employee." Barbuto, 477 Mass. at
465. On the other hand, while an employer's passive acceptance
of off-site use of medical marijuana does not have potential
criminal implications under Federal law, an insurer's compelled
reimbursement of medical marijuana affirmatively entangles the
insurer in the Commonwealth's medical marijuana scheme.
We also recognized in Barbuto that there are specific cases
where an employer may not reasonably be able to accommodate an
employee's medical marijuana usage without violating Federal
statutes or regulations. See Barbuto, 477 Mass. at 467. In
such limited instances, the employer may be able to show that
such accommodation would constitute an undue hardship. See id.
("an undue hardship might be shown if the employer can prove
that the use of marijuana by an employee would violate an
employer's contractual or statutory obligation, and thereby
jeopardize its ability to perform its business"). We indicated
that examples of such undue hardship may include transportation
employers and Federal government contractors who are subject to
certain Federal statutory and regulatory requirements
restricting their ability to hire or maintain employees who use
marijuana. Id. at 467-468. By contrast, concerns about
possible legal exposure for insurance companies are likely to be
present in every case, for the reasons discussed supra. We thus 25
find Barbuto readily distinguishable.
We also observed in Barbuto that declaring "an
accommodation for medical marijuana to be per se unreasonable
out of respect for Federal law would not be respectful of the
recognition of Massachusetts voters, shared by the legislatures
or voters in the vast majority of States, that marijuana has an
accepted medical use for some patients suffering from
debilitating medical conditions." Id. at 465-466. Here,
however, our holding is entirely consistent with the will of
Massachusetts voters. The citizens of Massachusetts voted to
approve a medical marijuana act that was designed to protect
medical marijuana participants and avoid the risk of Federal
intervention. Our conclusion that insurers, who did not choose
to participate, may not be compelled to reimburse medical
marijuana expenses is entirely in accord with these purposes as
well as the act's plain language.
Our understanding of the reimbursement limitation provision
is also consonant with the fact that most States have approached
this issue in a similar manner. As discussed, many States with
medical marijuana schemes include language in their medical
marijuana statutes protecting third-party insurers from being
required to provide reimbursement to medical marijuana patients.
See note 6, supra. See also 8 L.K. Larson, Larson's Workers'
Compensation Law § 94.06 (rev. ed. 2019) ("Acknowledging the 26
inconsistency between state and federal law, a number of states
have adopted statutory provisions making it clear that an
insurer or self-insurer may not be compelled to reimburse a
patient for costs associated with the use of medical
marijuana"). By excluding third-party insurers from being
obligated to reimburse medical marijuana patients under the
statute and limiting the protections of the act to those willing
to assume the risk of exposure to Federal prosecution, these
statutory provisions lessen the likelihood of Federal
intervention and preemption.
Finally, we reject any interpretation contending that the
general language of the workers' compensation statute requiring
reimbursement for reasonable and necessary medical expenses
requires third-party reimbursement because medical marijuana use
is legalized under the medical marijuana act. Such an
interpretation ignores the fact that marijuana was previously
illegal under Massachusetts law, that it remains illegal under
Federal law, and that the medical marijuana act itself expressly
states that it does not require such reimbursement. The medical
marijuana act cannot state on its face that "[n]othing in this
law requires [third-party reimbursement]" but then be
interpreted to require reimbursement under other laws on the
basis of the act's legalization of medical marijuana. St. 2012,
c. 369, § 7 (B). If this were the case, then the express 27
language in the medical marijuana act would disguise the
provision's actual meaning, parading as its opposite. Ballot
questions in particular must be readily understandable to
voters, who are presumed to understand the plain meaning of an
initiative when they vote to approve it.13 See Commonwealth v.
Cruz, 459 Mass. 459, 470-471 (2011).
In sum, based on the plain language of the reimbursement
limitation provision contained within St. 2012, c. 369, § 7, as
well as the context within which it was enacted, we conclude
that health insurance providers may not be compelled to
reimburse claimants for expenses for the medical use of
13Moreover, the summary of the medical marijuana initiative petition prepared by the Attorney General and disseminated to voters explicitly stated that the "proposed law would . . . not require any health insurer or government entity to reimburse for the costs of the medical use of marijuana." See Information for Voters: 2012 Ballot Questions, Question 3: Law Proposed by Initiative Petition, Medical Use of Marijuana. As summaries of initiative petitions are to be "written in plain English that a reasonable voter can readily comprehend," we will not assume that the summary was intended to relay to voters that insurers were, in fact, required to provide such reimbursements, contrary to the summary's plain language. Hensley v. Attorney Gen., 474 Mass. 651, 664 (2016). See Barbuto v. Advantage Sales & Mktg., LLC, 477 Mass. 456, 469 & n.11 (2017) ("the closest equivalent to legislative history [for laws enacted through an initiative petition] . . . is the Information for Voters guide," which includes Attorney General's summary). 28
marijuana.14,15
b. Scope of reimbursement limitation provision. The
claimant separately argues that, regardless of how we interpret
the reimbursement limitation provision, it does not implicate
workers' compensation insurers. By its terms, the provision
applies to "any health insurance provider, or any government
agency or authority." St. 2012, c. 369, § 7 (B). The claimant
contends that a workers' compensation insurer may not be
considered a "health insurance provider" under the statute. We
conclude that the statute applies to those providing insurance
for medical marijuana payments, including workers' compensation
insurers. We also conclude that the trust fund involved in the
14Because we conclude that the Massachusetts medical marijuana act explicitly alleviates insurers from the burden of reimbursing for medical marijuana expenses, we do not need to reach Central Mutual's alternative argument that the Massachusetts medical marijuana scheme is preempted by Federal law. Accordingly, we need not consider whether an insurer's reimbursement of medical marijuana expenses would, in fact, constitute a violation of the CSA. Nonetheless, the fear of criminal exposure was clearly a motivating factor in the drafting of the reimbursement limitation language found in the act.
15We also observe that marijuana remains a controlled substance in Massachusetts. See G. L. c. 94C, § 31 (listing "marihuana" as class D substance). Although recreational marijuana possession and use was legalized in 2016, the Commonwealth places limits on possession and regulates its commercial sale. See G. L. c. 94G, § 7 (a) (1), (2). See also Commonwealth v. Long, 482 Mass. 804, 811 (2019). Possession and distribution outside of these limits may still subject an individual to penalties under Massachusetts law. See G. L. c. 94C, § 34. 29
instant case fits within the definition of a government agency
or authority.
Workers' compensation constitutes a "system of insurance"
intended to "replace in part the wages lost by workers or their
dependents as a result of injuries suffered in connection with
their work." Letteney's Case, 429 Mass. 280, 282 (1999).
Pursuant to this statutory scheme, "[e]mployees give up their
right to sue their employers in tort in return for a right to
compensation for job-related injuries, whether or not the
employer was at fault." Id. at 284. We have frequently made
reference to the fact that workers' compensation is a form of
insurance. See, e.g., Benoit v. Boston, 477 Mass. 117, 125–126
(2017) ("Such payments are in the nature of insurance benefits
received pursuant to a policy taken out by the employer for the
employee's benefit"); Letteney's Case, supra. Further, a
significant aspect of the workers' compensation insurance
scheme, and the one precisely at issue here, is the provision of
medical expenses and associated health care payments. See Neff
v. Commissioner of the Dep't of Indus. Accs., 421 Mass. 70, 75
(1995). Thus, entities who provide workers' compensation
insurance are plainly providing health insurance benefits.
This conclusion also comports with the design of the act to
avoid the risk of Federal intervention. Whether a medical
marijuana patient seeks reimbursement under the workers' 30
compensation statute for injuries suffered in the course of his
or her employment, or seeks reimbursement from his or her
private health insurance provider, the underlying conduct at
issue is the same: a medical marijuana patient is requesting
that the entity provide payments for the patient's purchase of
marijuana. In either case, requiring the insurer to reimburse
these expenses would compel the insurer's involvement in the
medical marijuana market. Given that the act was drafted to
avoid Federal prosecution and that, in accordance with this
purpose, the reimbursement limitation provision shields third
parties from potential Federal criminal exposure, it would make
little sense to protect insurance companies in one scenario and
not the other.
This conclusion is also in keeping with the general purpose
of workers' compensation insurance. Workers' compensation was
designed to eliminate "piecemeal tort litigation and tort claims
by individual workers, which are time-consuming, expensive, and
afford no guarantee of compensation." Estate of Moulton v.
Puopolo, 467 Mass. 478, 483 (2014). It serves to protect
workers, ensuring prompt administration of benefits while also
allowing employers to "gain predictability and cost
containment." Id. However, requiring workers' compensation
insurers to reimburse medical marijuana expenses would threaten
to undermine the protection, predictability, and timeliness 31
contemplated by the workers' compensation scheme. Insurers who
fear criminal exposure under existing Federal law would not
voluntarily agree to reimburse a claimant for medical marijuana
expenses in the first instance, as the insurer in this case
vigorously argued. The resulting delays in settlement and
potential litigation in every single case where a claimant seeks
benefits that include reimbursement for medical marijuana would
be entirely contrary to the underlying purpose of the workers'
compensation scheme. The reimbursement limitation provision
ensures that the medical marijuana act does not result in such
widespread litigation and maintains the stability of the
workers' compensation scheme.
Finally, we also recognize that workers' compensation
insurers may seek reimbursement from the trust fund for up to
seventy-five percent of payments made to employees who have been
previously injured. See G. L. c. 152, § 37, second par.
Indeed, in the instant case Central Mutual has represented that
it intends to seek reimbursement from the trust fund if ordered
to pay for Wright's medical marijuana expenses. The trust fund
is administered by the Massachusetts treasury. See G. L.
c. 152, § 65. Thus, as a government entity, the trust fund is
directly implicated by the language of the reimbursement
limitation provision, which includes within its scope "any
government agency or authority." See St. 2012, c. 369, § 7 (B). 32
Such reimbursement of medical marijuana expenses violates the
express language of the statute.
In sum, neither Central Mutual nor the trust fund can be
ordered to reimburse Wright for his medical marijuana expenses,
as the medical marijuana act does not provide for such third-
party reimbursements.
3. Conclusion. We conclude that the reimbursement
limitation provision contained within St. 2012, c. 369, § 7,
prevents a health insurance provider or government agency from
being ordered to reimburse a claimant for medical marijuana
expenses. Accordingly, the claimant's medical marijuana
expenses are not compensable. The decision of the reviewing
board is affirmed.
So ordered.