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." (Credit: PRO Stock Professional/Shutterstock)
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.
|Painful job-site injury
In 2001, 28-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 cargo on him. Immediately after the accident, Hager experienced lower back pain that radiated 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. 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 necessary medical procedures, which 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. Hager could not pay out of pocket for the recommended surgery. He was prescribed Oxycodone. He has since undergone multiple surgeries, which were covered by Medicaid, along with opioid treatments and physical therapy.
In November 2015, a doctor concluded that Hager suffered from "chronic debilitating pain," and that the condition was not likely to improve. It also was unlikely that Hager would be able to return to work in any capacity in the future. And Hager's long-term use of opioids meant that he was also unlikely to respond to other treatments.
In 2016, Dr. Joseph Liotta saw Hager and determined he would be a good candidate for the state's 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.
|Breaking down the decision
The workers' compensation judge 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.
Expert witnesses 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 and found 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 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).
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 also 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 also 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 considered whether the treatment helped the worker in question, and whether his doctor considered pot to be a safer alternative to opioids. The court ruled that the treatment was appropriate due to the Hager's history of opioids and chronic pain, as well as his probably dependency on drugs and the likelihood 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 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, so 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 medical marijuana costs. The injured employee showed the severity and chronic nature of his pain along with his unsuccessful attempts to relieve the pain. As such, the use of medical marijuana was reasonable and necessary.
This is not likely to be an isolated case involving medicinal marijuana and workers' compensation insurance as legalization begins to unfold nationwide. Also of note: The current available evidence indicates that marijuana used for pain management is safer and less addictive than opiates.
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