Alert
Cannabis Law Alert
01.15.2020

On Monday, January 13, 2020, the New Jersey Appellate Division ruled in favor of a medical marijuana patient and ordered his former employer to reimburse him for his medical marijuana expenses.

In a case of first impression, a three-judge panel ruled that a workers’ compensation judge can order an employer to reimburse its employee for the employee’s use of medical marijuana prescribed for chronic pain following a work-related accident. In a thirty-one page opinion, the court specifically rejected the employer’s argument that the Controlled Substances Act (“CSA”) preempts the New Jersey Compassionate Use Medical Marijuana Act (“MMA”). The court also rejected the employer’s arguments that (1) the workers’ compensation judge’s order would require the employer to aid and abet its employee’s possession of an illegal substance in violation of the CSA, and (2) the employer should be treater similarly to a private health insurer, which the MMA expressly exempts from requirements to reimburse medical marijuana costs. Finally, the court held that, at least in this instance, medical marijuana is a reasonable and necessary form of treatment under the New Jersey Workers’ Compensation Act (“WCA”).

Though the facts of this case paint an extreme picture with respect to the employee’s injury, pain, prognosis, and process for seeking justice, the case is a remarkable step forward for the medical cannabis industry and for the rights of employee-patients.

* * *

In 2001, Vincent Hager (“Petitioner”) was injured while working at M&K Construction (“Respondent”) when a truck delivering concrete accidentally unloaded the shipment on Petitioner. Petitioner immediately experienced severe back pain that radiated down through his legs following the accident. Due to the severe pain, Petitioner could not recommence work and Respondent denied the existence of a compensable workers’ compensation claim. 

After the accident, Petitioner began eighteen years of constant visits to pain management specialists and neurosurgeons. Unfortunately, Petitioner could not afford many of the recommended surgeries and the two surgeries he did receive failed to relieve his pain. Due to the severity of Petitioner’s pain he was prescribed a regimen of opioids. However, the opioid regimen did not alleviate the pain and Petitioner quickly began to suffer the side effects associated with an opioid addiction. 

Finally, in April of 2016, Petitioner met with Dr. Liotta, a board certified hospice and palliative care physician who is licensed to prescribe medical marijuana in New Jersey. After Petitioner was approved to participate in New Jersey’s medical marijuana program, Dr. Liotta prescribed medical marijuana to treat Petitioner’s chronic pain. Through the use of medical marijuana, Petitioner achieved some of the results his years of treatment had failed to provide. Petitioner reported back to Dr. Liotta that the medical marijuana regimen was “controlling” his pain. For his medical marijuana regimen, Petitioner pays $616 a month and will likely require medicine to manage his pain for the rest of his life. 

As noted above, Respondent advanced several arguments about why the Workers’ Compensation Judge’s ruling should be overturned. The Appellate Division rejected each argument. The Court found no conflict between the CSA and MMA that would warrant preemption, held that Respondent failed to prove it was being forced to be an active participant in a crime (a pre-requisite to aiding and abetting), and concluded that Respondent is not a private health insurer and therefore does not receive exempt status under the MMA. Interestingly, the Court found that Petitioner’s use of medical marijuana is considered reasonable and necessary under the WCA. 

For more information, please contact the Cannabis team at Bressler. 

*Taylor Anderson, Law Clerk (NY Bar Admission Pending) also contributed to this article. 

Caution and Disclaimer: Possessing, using, distributing and/or selling marijuana or marijuana-based products is illegal under federal law, regardless of any state law that may decriminalize such activity under certain circumstances. Interested businesses and individuals should be aware that the status of federal law presents an uncertain risk, which is not mitigated by compliance with state law. We do not provide any guidance or assistance in violating federal law.

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