The appellate court found that "thereis evidence of tolerance from the federal government ofstate-legislated medical marijuana" and that since December 2014,"congressional appropriations riders have prohibited the use of any(Department of Justice) funds that prevent states with medicalmarijuana programs. . . from implementing state medical marijuanalaws." (Credit: PRO Stock Professional/Shutterstock)

In a case of first impression, the Superior Court of New Jersey,Appellate Division, considered whether a workers' compensationjudge can order an employer to reimburse an employee for theemployee's use of medical marijuana prescribed for chronic painfollowing a work-related accident.

Painful job-site injury

In 2001, 28-year-old Vincent Hager was employed by M&KConstruction (M&K) and working on a construction site when atruck delivering concrete dumped its cargo on him. Immediatelyafter the accident, Hager experienced lower back pain that radiateddown both legs. An MRI revealed herniation and bulging disks, andHager was sent to see a neurosurgeon. Initially, Hager used hisprivate health insurance to pay for the treatment. But when hispain prevented him from working, he left his employment and hishealth insurance was terminated, so he could no longer affordtreatments.

M&K denied Hager's workers' compensation claim stating thatit was investigating the matter. Hager retained counsel, whoreferred him to a neurosurgeon, Dr. William Klempner. In 2003,Hager was admitted to the emergency room with severepain, and Klempner performed necessary medical procedures,which Hager mistakenly believed would be covered by M&K'sworkers' compensation carrier.

In 2006, after many more complications, Klempner recommended atwo-level lumbar fusion. Hager could not pay out of pocket for therecommended surgery. He was prescribed Oxycodone. He has sinceundergone multiple surgeries, which were covered by Medicaid, alongwith opioid treatments and physical therapy.

In November 2015, a doctor concluded that Hager suffered from"chronic debilitating pain," and that the condition was not likelyto improve. It also was unlikely that Hager would be able to returnto work in any capacity in the future. And Hager's long-term use of opioids meant that he was alsounlikely to respond to other treatments.

In 2016, Dr. Joseph Liotta saw Hager and determined he would bea good candidate for the state's medical marijuana program. Hagerwas approved for the program, and Liotta gave him a prescription.In a follow-up, Hager mentioned that the marijuana was"controlling" his pain. He pays $616 out-of-pocket a month for theprescription and will need medicine to manage his pain for the restof his life.

Breaking down the decision

The workers' compensation judge found that the condition of thespine and the consequences were related to Hager's work, and heexhibited permanent partial total disability. The judge orderedM&K to reimburse the petitioner for the medical marijuana costsand any related expenses.

Expert witnesses in the case agreed that there were only twotreatment options for the pain Hager was experiencing, eitheropioids or marijuana. So the judge compared the two therapies andfound that marijuana was the appropriate option.

M&K argued that the federal Controlled Substances Act (CSA),21 U.S.C. §841, which makes it a crime to manufacture, possess ordistribute marijuana, preempts the New Jersey Compassionate UseMedical Marijuana Act (MMA) because it is impossible to comply withboth statutes. M&K also argued that the order toreimburse the employee further violates the CSA because it requiresthe employer to aid and abet the employee's possession of anillegal substance.

M&K said it should be treated similarly to aprivate health insurer, which is not required under the MMA toreimburse costs for medical marijuana. M&K also contended thatthe judge erred in failing to consider whether medical marijuana isa reasonable and necessary form of treatment under the Workers'Compensation Act (WCA).

The appellate court found that "there is evidence of tolerancefrom the federal government of state-legislated medical marijuana,"and that since December 2014, "congressional appropriations ridershave prohibited the use of any (Department of Justice) funds thatprevent states with medical marijuana programs from implementingstate medical marijuana laws."

The court also said that M&K failed to show that it faced acredible threat of prosecution. Despite medical marijuana legislation in themajority of states, M&K could not show any federalprosecution of an employer or insurer for reimbursement ofauthorized medical marijuana. The ruling also said that theargument that state law prohibits health insurers from coveringmedical marijuana does not apply to workers' compensation insurers,and if the legislature had wanted to relieve employers of thatobligation, it would have done so.

The appellate court considered whether the treatment helped theworker in question, and whether his doctor considered pot to be asafer alternative to opioids. The court ruled that the treatmentwas appropriate due to the Hager's history of opioids and chronicpain, as well as his probably dependency on drugs and thelikelihood that he would never get better.

The case is Hager v. M&K Constr., No.A-0102-18T3, 2020 N.J. Super. LEXIS 4 (Super. Ct. App. Div. Jan 13,2020).

Editor's analysis

This was a case of first impression, and it seems clear why thecourt decided this case the way it did. The order didn't requirethe employer to "possess, manufacture or distribute" marijuana, butonly to reimburse the employee for the purchase of it, so there wasno conflict between the CSA and the MMA.

Next, M&K was not a private insurer. So it was not excludedunder the terms of the MMA from reimbursing medical marijuanacosts. The injured employee showed the severity and chronic natureof his pain along with his unsuccessful attempts to relieve thepain. As such, the use of medical marijuana was reasonable andnecessary.

This is not likely to be an isolated case involving medicinalmarijuana and workers' compensation insurance as legalizationbegins to unfold nationwide. Also of note: The current availableevidence indicates that marijuana used for pain management is saferand less addictive than opiates.

Related:

• Bringing marijuana into theworkplace
• Marijuana use among workers increasing, opioidsdecreasing
• Town may have to cover medical marijuana inworkers' comp case