In a case of first impression, the Superior Court of New Jersey, Appellate Division, considered whether a workers' compensation judge can order an employer to reimburse an employee for the employee's use of medical marijuana prescribed for chronic pain following a work-related accident. 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).
In 2001, twenty-eight-year-old Vincent Hager was employed by M&K Construction (M&K) and working on a construction site when a truck delivering concrete dumped its load on him. Immediately after the accident, Hager experienced lower back pain radiating down both legs. An MRI revealed herniation and bulging disks, and Hager was sent to see a neurosurgeon. Initially, Hager used his private health insurance to pay for the treatment. But when his pain prevented him from working, he left his employment and his health insurance was terminated, so he could no longer afford treatments.
M&K denied Hager's workers' compensation claim stating that it was investigating the matter, so Hager retained counsel who referred him to a neurosurgeon, Dr. William Klempner. In 2003, Hager was admitted to the emergency room with severe pain and Klempner performed some necessary medical procedures that Hager mistakenly believed would be covered by M&K's workers' compensation carrier.
In 2006, after many more complications, Klempner recommended a two-level lumbar fusion, but Hager could not pay out of pocket for the recommended surgery. Hager was prescribed Oxycodone. Since then he has gone through surgeries – which Medicaid paid for – opioid treatments, and physical therapy. In November 2015, a doctor advised that Hager suffered from "chronic debilitating pain," and it was highly unlikely for the condition to improve, and unlikely that he would be able to return to work in any capacity in the future. His now long-term use of opioids means he is unlikely to respond to other treatments. In 2016, Dr. Joseph Liotta saw Hager and determined he would be a good candidate for the medical marijuana program. Hager was 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 the prescription and will need medicine to manage his pain for the rest of his life.
The compensation judge wrote a decision and found that the condition of the spine and the consequences were related to Hager's work, and he exhibited permanent partial total disability. The judge ordered M&K to reimburse the petitioner for the medical marijuana costs and any related expenses.
The experts in the case agreed that there were only two treatment options for the pain Hager was experiencing, either opioids or marijuana, so the judge compared the two therapies, finding the 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, or distribute marijuana, preempts the New Jersey Compassionate Use Medical Marijuana Act (MMA) because it is impossible to comply with both statutes. M&K also argued that the order to reimburse the employee further violates the CSA because it requires the employer to aid and abet the employee's possession of an illegal substance.
M&K said it should be treated similarly to a private health insurer, which is not required under the MMA to reimburse costs for medical marijuana. M&K also contended that the judge erred in failing to consider whether medical marijuana is a reasonable and necessary form of treatment under the Workers' Compensation Act (WCA), N.J.S.A. 34:15-1 to -146.
The appellate court found that "there is evidence of tolerance from the federal government of state-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 medical marijuana programs. . . from implementing state medical marijuana laws." The court said that M&K failed to show that it faced a credible threat of prosecution. Despite medical marijuana legislation in the majority of states, M&K could not show any federal prosecution of an employer or insurer for reimbursement of authorized medical marijuana. The ruling said that the argument that state law prohibits health insurers from covering medical marijuana does not apply to workers' compensation insurers, and if the legislature had wanted to relieve employers of that obligation, it would have done so.
The appellate court ruled that the treatment was appropriate due to the history of opioids and chronic pain, and Hager's likely dependency on drugs and the likelihood that he would never get better. The court also took whether the treatment helped and if the worker and his doctor considered marijuana a safer alternative to opioids into consideration.
Editors Note: This was a case of first impression and it seems clear why the court decided this case the way it did. The order didn't require the employer to "possess, manufacture, or distribute" marijuana, but only to reimburse the employee for the purchase of it, there was no conflict between the CSA and the MMA. Next, M&K was not a private insurer, so it was not excluded under the terms of the MMA from reimbursing the medical marijuana costs. The injured employee showed the severity and chronic nature of the pain, his unsuccessful attempts to relieve the pain, and the use of medical marijuana was reasonable and necessary.
We will probably be seeing more cases involving medicinal marijuana in the near future. Because all of the evidence points to marijuana being a much safer and less addictive alternative to opiates, and as more states begin to legalize not only medicinal, but also recreational marijuana, it is possible that this ruling will begin a trend in the workers' compensation world.