New England’s Premier Insurance Defense Firm

Marijuana: Potential for Abuse!

| May 10, 2018

A Little Background
One of the hottest topics in Workers’ Compensation is the use of medical marijuana. Massachusetts is one of 29 states permitting medical marijuana. However, what makes this topic so complicated is that at the Federal level, marijuana remains a Schedule 1 substance under the Federal Controlled Substances Act.

To add more complication, between 2009 and 2013, the Department of Justice issued guidelines to prosecutors not to aggressively prosecute people for the use of medical marijuana. However, in January 2018, Attorney General Sessions rescinded the guidelines, instructing Federal prosecutors that they should use their own discretion. In contrast to Sessions’ rescission, Federal protection of state medical marijuana laws remains in place. In December 2014, Congress passed the Rohrabacher-Farr amendment, where Congress effectively inhibited Federal prosecution of marijuana related offenses in states with medical marijuana laws.

Current Massachusetts Cases:

TKCK leads the defense of medical marijuana in cases in which its use is not warranted and disputed by the insurer.

Mark Kelly, Esq. of TKCK has two landmark decisions against disputed claims for medical marijuana and has others pending.

Attorney Kelly’s first win against a medical marijuana claim came in Hensley v. Custom Communications (March 2018). In this case, the employee currently receives § 34A for an electric shock injury. The employee’s claim was for medical marijuana to alleviate his allegations of ongoing symptoms.

The Judge’s hearing decision denied the claim and the Reviewing Board summarily affirmed citing that the employee did not have a prescription for medical marijuana, but rather was only certified for the use of medical marijuana. (The employee has not appealed.) Further, medical marijuana cannot be prescribed because it is a Schedule 1 drug. In Massachusetts, certified patients are allowed 10 ounces of marijuana and are left to decide how much, how often, and what form of cannabis is allowed with any other prescriptions. Lastly, the judge cited that there are no current recommendations under chronic pain guidelines for the use of medical marijuana.

In the second case, Rodrigues v. Algar Construction (March 2018), the employee sought §§ 13 & 30 benefits for the payment of medical marijuana after a lump sum with liability for his industrial injury. A physician had certified the employee qualified to receive medical marijuana in Massachusetts. The employee testified that he baked marijuana into cookies and consumed them to deal with his pain from a back injury. The impartial physician questioned the use of medical marijuana stating that the certification standard is “whether the potential benefits of using marijuana likely outweigh its risks,” and that neither the certifying doctor nor any other physician is at the dispensary dealing with usage or dosage. Dr. Ross, the insurer’s expert also testified that there are neither highly credible pain studies nor guidelines for prescribing medical marijuana that establishes its usage for chronic back pain. The Judge denied the §§ 13 & 30 benefits adopting the impartial physician’s opinion, as well as the Insurer’s medical expert. The employee has not filed an appeal.

Another Massachusetts case of note on the issue of medical marijuana was won by the Massachusetts Workers’ Compensation Trust Fund. In St. Pierre v. T.E. Greenwood Construction , the employee was a Vermont resident who originally used medical marijuana in Massachusetts but then moved to Vermont and currently receives medical marijuana through the Vermont registry. The judge found that the insurer, in this case the Trust Fund, cannot be compelled to pay for medical marijuana certified and issued in Vermont because the Massachusetts Act and its statutorily prescribed regulations are specifically limited to qualified patients who are Massachusetts residents with cards issued by Massachusetts Department of Public Health and physical and dispensaries in Massachusetts . The judge noted that the Massachusetts Act specifically applies to qualifying patients who have obtained medical marijuana at a “medical Marijuana treatment center…as defined by Massachusetts law only, registered under this law.” St. 2012 c. 369 Sec. 2(A)(D)(H)(K)(L).

Current Vermont Case:

Medical marijuana is also a hot topic in Vermont. James Sullivan, Esq. of TKCK successfully defended against a claim of medical marijuana in Vermont. Hall v. Safelite (March 2018). In this case, the employee was a New Hampshire resident but worked in Vermont. He injured his left elbow, suffered from CRPS and he was certified for medical marijuana to treat his pain. While the claimant’s medical claim was found reasonable, the issue was whether a Vermont Workers’ Compensation Carrier must pay for medical marijuana. The Judge found that under the Vermont Medical Marijuana Statute, there are exclusions to those who can be compelled to pay. Under the statute, employers (which includes the workers’ compensation insurer by definition) are excluded. As such, the Judge denied the employee’s claim, stating that the Vermont Workers’ Compensation Insurer can voluntarily pay, but cannot be compelled to pay for medical marijuana under the Vermont Medical Marijuana Statute, 18 V.S.A. Section 4471, Section 4474c(b). The employee has not filed an appeal.


While nothing about medical marijuana is currently very clear, what is clear is that the procession of medical marijuana issues in both Workers’ Compensation and employment forums will continue into the future. There continues to be conflict in the medical and legal community as well as a lack of consensus and supporting documentation about the usage and dosage of medical marijuana needed to relieve pain and treat medical conditions that keep people out of work.

If you have a workers’ compensation claim in New England, or an employment discrimination issue involving the use or requested use of medical marijuana in the workplace, give us a call.

Vincent Tentindo or Mark Kelly will be happy to answer any questions in the workers’ compensation arena, and Matthew Slater will be happy to answer any questions in the employment discrimination arena.