On January 23, 2020, the New Jersey Appellate Division ruled in the case of Hager v. M&K Construction that New Jersey workers’ compensation insurance carriers cannot refuse to provide reimbursement for legitimately prescribed medical marijuana as part of a workers’ compensation coverage on the grounds that reimbursement would conflict with federal law––namely the Controlled Substance Act (CSA). Even though the CSA makes it a federal crime to manufacture, possess, or distribute marijuana, the New Jersey Appellate Court recently decided that a petitioner’s use of medical marijuana was necessary and reasonable under New Jersey’s Compassionate Use Medical Marijuana Act, which decriminalized the possession of a certain amount of marijuana prescribed for medical use. The court also found that forcing an employer to reimburse costs for medical marijuana under their workers’ compensation coverage, did not force them to violate the CSA.
In this recent case, the petitioner, Vincent Hager (Vincent), was injured at his job as a construction worker when a dump truck unloaded a delivery of concrete on him in 2001. Vincent immediately began experiencing lower back pain that radiated down his legs––so bad that he had to leave his job that same year. Vincent consulted a neurosurgeon, received a lumbar fusion, completed physical therapy and wore a back-brace. None of this cured the pain. He was eventually prescribed opioids, which he said did not cure the pain but helped manage it to some extent, and which eventually caused excessive sensitivity to pain and dependency that is unlikely to respond to other treatment.
Vincent then saw a new doctor, Dr. Liotta, in April 2016. Dr. Liotta determined that Vincent would be a good candidate for New Jersey’s medical marijuana program, in part due to his chronic pain and because Vincent wanted to come off of his opioid regimen. Vincent was given a prescription for medical marijuana and testified that it gave him some relief for his pain. His former employer, M&K Construction (M&K), however, refused to provide reimbursement for ongoing medical marijuana use, arguing rather that Vincent should undergo more physical therapy and simply deal with the pain. The workers’ compensation judge agreed that medical marijuana was an appropriate form of treatment for Vincent, and ordered M&K to reimburse the costs. M&K appealed, arguing that doing so would force it to violate the CSA. M&K also argued that forcing it to reimburse would be akin forcing it to aid and abet Vincent in violating the CSA and that it should not be forced to reimburse under the private health insurer exception to the MMA.
The Appellate Court disagreed with M&K, reasoning that forcing it to reimburse Vincent for medical marijuana presented no conflict with the CSA, which made possessing, manufacturing, or distributing marijuana illegal. By simply reimbursing Vincent, M&K would not be forced to possess, manufacture, or distribute marijuana. The court also rejected M&K’s argument that M&K could be convicted for aiding and abetting Vincent in the commission of a crime. The court reasoned that one needs to possess requisite intent and active participation to be found guilty of aiding and abetting, which is not present here because M&K would merely be complying with a court order. The court also pointed out evidence that the federal government generally tolerated state medical marijuana programs. The court also rejected M&K’s argument that they should be exempt from the MMA as a private health insurer. While the MMA does not define “private health insurer,” New Jersey law defines “health insurance” as excluding workers’ compensation. Lastly, the court held that the workers’ compensation judge came to a reasonable conclusion in determining that medical marijuana was a reasonable and necessary form of treatment for Vincent under the Workers’ Compensation Act and the MMA.
If you have any concerns about your employer’s responsibility to cover medical marijuana under workers’ compensation coverage, feel free to contact Ward, Shindle & Hall.