Suppose your employee sustains an on-the-job injury. S/he should receive workers’ comp benefits, right? Would those benefits include medical marijuana prescriptions? Here we go again. We enter that conundrum that is getting increasingly familiar. Medical marijuana is legal in about 33 states. It remains illegal in roughly 17 states. Moreover, it remains illegal under federal law. Even where it is legal, most states’ medical marijuana laws provide an “out”, explaining that nothing in the law requires the employer to do anything that would violate federal law. So, can workers comp benefits include reimbursement for medical marijuana prescriptions? New Jersey’s Superior Court, Appellate Division says “Yes”. Let’s have a look and see why.
The case is Vincent Hager v MK Construction DOCKET NO. A-0102-18T3 (January 13, 2020). Here’s what went down: Vincent Hager worked at MK Construction in 2001, when a truck delivering concrete dumped its load on him. He filed a workers’ comp claim. MK Construction denied the claim, stating it was “investigating the matter”. Fifteen years later, at the beginning of trial, MK finally stipulated that Mr. Hager indeed sustained a compensable work-related injury. As a result of the accident, Mr. Hager experienced severe pain in the lower back, radiating down the legs. He made many attempts to address and alleviate the pain. He had multiple surgeries. Apparently, nothing worked. The pain was severe enough to keep him from working and he left his employment in 2002, resulting in termination of his health coverage. MK continued to deny the workers comp claim, so Mr. Hager retained counsel. You can click on the hyperlink above for more details on his attempts to treat his pain.
At the time the case went to trial, Mr. Hager was treating with Joseph Liotta, MD, a board-certified hospice and palliative care physician, certified to prescribe medical marijuana. Mr. Hager had been taking opioids and wanted to stop using them, in part because of unwanted side effects he was experiencing while on them, partly because he had apparently become addicted to them. At the same time, he needed a way to manage his pain. Dr. Liotta determined that Mr. Hager was a viable candidate for medical marijuana due to “intractable muscular skeletal spasticity, [and] chronic pain,”. The medical marijuana apparently provided relief, allowing Mr. Hager to sleep and to stop using opioids. Dr. Liotta testified that Mr. Hager will likely need medicine to treat his pain for the rest of his life. Dr. Liotta described the chemical addiction to medical marijuana as “very weak” compared to that of opioids. He described the difficulty of trying to withdraw from opioids, stating “you can die from it”.
The parties did reach an agreement after several days of trial regarding payment of medical bills, reimbursement for out-of-pocket medical expenses, temporary disability benefits and third-party lien credits. Sounds good. What’s the problem, then? MK Construction pushed back on the workers’ comp judge’s award of permanent disability and future medical treatment (specifically, medical marijuana). One doctor testifying on behalf of MK suggested that Mr. Hager “simply deal with his pain”. The workers’ comp judge rejected that position as”unacceptable as inhumane and contrary to the law concerning [an employer’s] obligation to treat.” The options were either opioids or medical marijuana. The workers’ comp judge compared both options, concluding that benefits medical marijuana, under the circumstances were superior to those of opioids and awarded that treatment.
I’ll bet you’re not surprised to hear the MK appealed. MK argued that ordering it to pay for medical marijuana was effectively forcing it to violate federal law. Federal law, (here, the Controlled Substances Act) preempts New Jersey’s Medical Marijuana Act. MK further argued that argued that it was impossible to simultaneously comply with both federal and state laws, and therefore it could not and did not have to pay for the medical marijuana to treat petitioner’s injuries. The Appellate Division forcefully rejected that argument. The Court reasoned that an employer’s reimbursement of a registered MMA patient’s use of medical marijuana does not require the employer to commit those offenses and that the MMA doesn’t prohibit punishment for drug-related offenses under federal law. The Court further reasoned that NJ’s MMA doesn’t require an employer to possess, manufacture or distribute marijuana in violation of the federal CSA and therefore it is not impossible to comply with both laws. The Court also rejected MK’s argument that paying for the medical marijuana prescriptions would render it “aiding and abetting a person in the commission of a crime”, noting that “M&K has not established the requisite intent and active participation necessary for an aiding and abetting charge.”
Well, this is all very interesting, but what does this mean for all of you? Here are some of my thoughts:
- Here’s one having nothing to do with the medical marijuana: It was apparently undisputed that a concrete delivery truck dumped a load on Mr. Hager. Further, it was at best difficult to dispute that he sustained severe injuries as a result. If you are ever in such a situation, you may want to re-think denying this type of claim. It cannot have sat well with the workers’ comp judge– in my humble opinion.
- Getting back to the medical marijuana: if your employee works in a state where medical marijuana is legal, and if evidence shows that it is a superior option for treating what is likely to be permanent pain, you may well have to pay for it.
- This court found no conflict between its state’s medical marijuana statute and the federal Controlled Substances Act. This appears to be the first time that a court has ruled on this issue. A number of states courts may well follow suit — or not. Since marijuana remains illegal under federal law, we are dealing with a patchwork of state laws that allow it. Just because a New Jersey Court ruled that an employer must pay for medical marijuana, doesn’t mean all states that have legalized medical marijuana will. Then, of course, there are still about 17 states that to date have not legalized medical marijuana.
I’m thinking this case should provide some real food for thought. I’ll leave you with that for now. See you again next week!
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