Injured Workers to be Reimbursed for Medical Marijuana by Employers and Workers’ Compensation Carriers
Apr 28, 2021 | Written by: | Share
The New Jersey Supreme Court recently ruled in Hager v. M&K Construction that employers and workers’ compensation carriers are now required to reimburse injured employees for medical marijuana expenses.
Hager was involved in a work-related accident and suffered a back injury in 2001. In 2016, Hager enrolled in New Jersey’s medical marijuana program and began using medical marijuana for pain treatment. He also used the medical marijuana to overcome an addiction to opioids that resulted from his surgery. A workers’ compensation court ordered the employer to reimburse Hager for the ongoing costs of his medical marijuana, which were upward of $600 per month. The matter was appealed and the Appellate Division affirmed.
In reviewing the matter, the court first found that the federal Controlled Substances Act (CSA), the federal law that makes marijuana illegal, did not preempt the state’s medical marijuana law, the Compassionate Use Act, N.J.S.A. 24:6I-1, et seq. Additionally, the CSA would not subject employers to federal criminal liability for aiding-and-abetting. The Court also noted that on the federal level, marijuana prosecutions have been deprioritized. The Court therefore concluded that the medical marijuana law did not create an obstacle to congressional objectives and thus, no preemption.
Hager’s employer also argued that the use of medical marijuana was not a “reasonable or necessary” treatment under the New Jersey Workers’ Compensation Act (“WCA”). The Court likewise rejected this argument. 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. 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. The Court specifically held “[l]ike 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.
Finally, the Court found that Hager’s employer did not fall within an exception to the medical marijuana law that excludes reimbursement for medical marijuana costs from “a government medical assistance program or private health insurer.” The Court found that workers’ compensation insurers are not to be treated as private health insurers or government medical assistance programs.
Leslie A. Parikh, Esq., is a partner with Gebhardt & Kiefer, PC. She practices primarily in the areas of employment law, civil rights litigation, municipal law, insurance defense, and the representation of public entities in both State and Federal Court. Contact Ms. Parikh at 908-735-5161 or via email.
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