In the case of Vincent Hager vs. M&K Construction, the New Jersey Appellate Court was presented with a case of first impression: whether 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.

 

This case presents many unique issues relating to the interplay between both State and Federal Law regarding restrictions relating to marijuana use as applied to the New Jersey Workers’ Compensation Act. The employer, M&K Construction, argued that the Federal Controlled Substances Act (FCSA), 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.

 

The facts and procedural history of this case are somewhat complex. In short, for over eighteen years, the Petitioner had endured chronic disabling pain resulting from a work-related injury that occurred in 2001. The Petitioner was 28 years old when a concrete truck dumped a load of concrete on him while he was at work. He had undergone multiple unsuccessful lumbar surgeries and pursued all recommended modalities of treatment, but nothing relieved his pain.

 

At trial, the Petitioner testified that he was prescribed Oxycontin, Oxycodone, Valium, Lyrica, and other pain medications that he had taken for many years. This long-term use of opiate medications had most likely caused “hyperalgesia” (which means excessive sensitivity to pain) and dependency that is unlikely to respond to other treatments, as concluded by his pain management physician, Dr. Leggiero, who deemed him unlikely to ever return to work in the future.

 

Dr. Liotta – a physician certified by the State of New Jersey to prescribe medical marijuana – testified that the Petitioner was a candidate for the medical marijuana program due to his "intractable muscular skeletal spasticity, [and] chronic pain" and as such, prescribed marijuana in April of 2016 to the Petitioner. The Petitioner paid the cost of $616 per month out-of-pocket for a prescription of two ounces of marijuana. Once the Petitioner began use of the marijuana, he ceased taking opioids; however, he would be required to use the marijuana for the remainder of his life.

 

The Appellate Division concluded that Dr. Liotta’s testimony was credible, and adopted the premise that the use of medical marijuana was reasonable and necessary for the treatment of the Petitioner's chronic pain. The Appellate Division focused on the fact that marijuana use had also allowed the Petitioner to cease using opioids – which was an achievement by itself, in light of the opioid crisis in existence today. As such, this rationale would suffice for the reimbursement of medical marijuana by the employer for his workplace injury.

 

Lastly, the Court, in addressing the issue regarding the FCSA and MMA, concluded that because the order of the trial court directing the employer to reimburse the Petitioner for his marijuana, it does not require the employer to “possess, manufacture or distribute marijuana,” -- but only to reimburse the Petitioner for his purchase of medical marijuana, and as such, there is no conflict between the CSA and MMA.

 

This decision is not only important in regards to authorizing reimbursement to an injured worker for medical marijuana, but more importantly, stands for the premise that there were sufficient proofs presented at the trial court for it to conclude that medical marijuana has the ability to address chronic pain. This decision is an indicator that the Appellate Division is willing to embrace the changing world of marijuana use in light of the troubling opioid epidemic in the State.

 

Jonathan E. McMeen, Esq. is the chair of the Workers’ Compensation Practice Group at Laddey, Clark, & Ryan, LLP.