SOME IMPORTANT NEW DEVELOPMENTS IN MASSACHUSETTS
WORKERS' COMPENSATION
 


 
The Massachusetts Supreme Judicial Court has affirmed in Wright’s Case, a Department of Industrial Accidents Reviewing Board decision that denied an employee reimbursement from his Workers’ Compensation insurance company for medical marijuana expenses to treat chronic pain stemming from two prior work-related injuries. The SJC recognized that a "hazy thicket" has been created by the conflict between Federal law (Controlled Substances Act) that has declared marijuana an illicit substance and a majority of States that have legalized "medical marijuana and created regulatory schemes for its administration and usage." The SJC has ruled that the Massachusetts Medical Marijuana Act (See G. L. c. 94I, § 6 (i)) expressly states that "Nothing 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." "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." This specific language overrides "the general language in the workers' compensation laws requiring workers' compensation insurers to reimburse for reasonable medical expenses." The Massachusetts’ decision to preclude any reimbursement for medical marijuana is entirely consistent with a number of other states that "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." This decision also reaches and protects private insurance health insurance providers. "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."


 


WHEN TO PAY REASONABLE OUT-OF-POCKET EXPENSES TO EMPLOYEE COUNSEL IN MASSACHUSETTS  

Pursuant to conference orders in Massachusetts, expenses are normally due to be paid to employee counsel. We have been seeing an increase in inappropriate requests for reimbursement of these expenses, including request for payment of appeals fees. Please be on the lookout for this if you get such a request.

UNREIMBURSABLE EXPENSES ARE AS FOLLOWS:

  • Appeals fees (unless both parties appeal then the cost is split equally)
  • Transportation costs
  • Telephone expenses
  • Parking fees
  • Postage
  • Stationary
  • Photocopies
  • Meals
  • Automobile expenses
  • Ordinary legal office overhead

The only allowable expenses are those incurred by the employee prior to the conference:

  • Cost of obtaining relevant medical records and doctor’s reports
  • Constable charges
  • Expert witness charges
  • Interpreter fees
  • Scientific test costs






      Citing to a principle first described in Donovan’s Case, 217 Mass. 76 (1914), the Reviewing Board has reversed the denial of widow’s benefits as barred by the "going and coming" rule, and instead found that the employee’s fatal accident occurred during travel that was an incident of the employment. "Where the employer provides transportation to and from work for the employee, as one of the express or implied terms of the contract of employment, it has long been held that an injury, occurring while the employee is so transported, arises in the course of his employment." The Reviewing Board found based upon the testimony of the widow and the employer that the employer made the provided transportation a condition of employment upon hiring the employee and drove him to New Hampshire. This principle is one of the various detours an injured employee can take to circumvent the "going and coming" rule and qualify for benefits.



 

TKCK is a workers' compensation and civil litigation firm handling cases in the all six New England States (Massachusetts, Connecticut, Rhode Island, New Hampshire, Maine and Vermont) and at the Federal level for Longshore Harbor Workers’ Compensation Act and Defense Base Act claims.

We are approved panel counsel for most major insurers, including AIG, ACE/Chubb, Travelers, Liberty Mutual, Zurich, PMA, Utica, XL Specialty, Starr, The Hartford, CNA, Berkley, Acadia and others. We have longstanding partnerships with most major Third Party Administrators and Self-Insured Groups and we are designated counsel for many of the largest employers in New England.


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Tentindo, Kendall, Canniff & Keefe LLP
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Boston, MA 02129
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