Vincent Hager suffered serious work-related back injuries on a construction job while working for M&K Construction. He underwent surgeries and was prescribed opioid medication for his chronic pain which did not provide him adequate relief. Hager then enrolled in New Jersey’s medical marijuana program for pain management and to overcome his opioid addiction. He requested his M&K’s workers compensation carrier to reimburse him for the ongoing cost of his prescription marijuana.  Following a trial, the workers compensation court ordered M&K to reimburse Hager for the cost of his prescribed marijuana use. The Appellate Division affirmed, and the case was appealed by M&K to the New Jersey Supreme Court. On appeal, M&K argued: 1) that New Jersey’s Jake Honig Compassionate Use Medical Cannabis Act (the Compassionate Use Act) was preempted by the federal Controlled Substances Act, 2) medical marijuana is not reimbursable under the New Jersey Workers’ Compensation Act (WCA) as a reasonable or necessary treatment, and 3) that medical marijuana use fits within an action to the Compassionate Use Act and therefore is not a reimbursable expense. The New Jersey Supreme Court in affirming the courts below, rejected M&K’s arguments. Hager v. M&K Construction, 2021 N.J. LEXIS 332 (decided April 13, 2021).

The Court began its analysis by explaining how the Compassionate Use Act, N.J.S.A. 24:6I-1 to -30, was enacted in 2010 in recognition of the beneficial uses of marijuana and to protect authorized individuals from criminal and civil penalties. Wild v. Carriage Funeral Holdings, Inc., 458 N.J. Super. 416, 427 (App. Div. 2019) aff’d 241 N.J. 285 (2020). (See Mashel Law’s blog article posted on March 29, 2019 discussing the Appellate Division opinion in Wild). The Compassionate Use Act articulates legislative findings that, “[m]odern medical research has discovered a beneficial use for cannabis in treating or alleviating the pain or other symptoms associated with certain medical conditions”. The Court recognized that although the selling and distribution of medical marijuana is prohibited under federal law, many states like New Jersey have legalized it, and states are not required to enforce federal law. Id. at *14.

As to M&K’s argument that it need not reimburse Hager for his medical marijuana costs because under the Compassionate Use Act reimbursement for medical marijuana costs is not required of “a government medical assistance program or private health insurer,” the Court concluded that the Legislature did not intend for workers’ compensation insurers to be treated as private health insurers or government medical assistance programs under the Compassionate Use Act. Therefore, M&K is not exempt from its reimbursement obligation. Id. at *18 -*19.

In rejecting M&K’s argument that medical marijuana is not a “reasonable and necessary treatment” and thus not compensable under the WCA, the Court explained how palliative care may be properly authorized under the WCA, and workers who are permanently disabled and beyond hope of being cured are still entitled to continued treatment and services. Id. at *21.; Howard v. Harwood’s Rest. Co., 25. N.J. 72, 88, 93-94 (1957); Hanrahan v. Township of Sparta, 284 N.J. Super. 327, 333 (App. Div. 1995). Competent medical testimony that a particular treatment or service will reduce symptoms or restore function is sufficient to satisfy the requirement of reasonable and necessary care. Id.; Hanrahan, 284 N.J. Super. at 336. Like the compensation court and the Appellate Division, we too conclude that medical marijuana may be found, subject to competent medical testimony, to constitute reasonable and necessary care under New Jersey’s workers’ compensation scheme.” Id.

In holding that M&K’s workers compensation carrier was required to reimburse Hager for cost of his medical marijuana treatment, the Court opined, “… that exempting workers’ compensation insurance carriers from responsibility for workers’ medical marijuana costs would be antithetical to the Legislature ‘s express findings in the Compassionate Use Act and the traditional broad, liberal application of New Jersey’s workers’ compensation scheme. Sufficient credible evidence in the compensation court record — medical records and hearing testimony — supported the [Workers Compensation Court] Order.” Id. at *24.

Lastly, in dealing with M&K’s argument that the Compassionate Use Act was preempted by the federal CSA, the Court engaged in a detailed examination of the legislative history underlying the enactment of the Compassionate Use Act and concluded that it was possible for M&K to “… abide by both the CSA and the Compassionate Use Act at the present time, and that the latter does not currently create an obstacle to the accomplishment of congressional objectives. As such, the Compassionate Use Act is not preempted by the CSA as applied to the [Workers Compensation Court] Order.” Id. at *43. The Court stated that its conclusion in this regard, “is consonant with our reading of the relevant federal authorities and our settled principles of preemption analysis and deciphering legislative intent.” Id. at *48.

If your employer is interfering with your right to use prescribed medical marijuana to treat a medical condition, call the attorneys at Mashel Law (732) 536-6161 or fill out the contact form on this page for immediate help. At Mashel Law, LLC, located in Marlboro, New Jersey, we are dedicated to protecting the rights of employees.

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