Medical Marijuana Expenses Reimbursable In NJ Workers Comp

The New Jersey Supreme Court ruled that an employer and its workers’ compensation agency must reimburse an injured worker for medical marijuana expenses. Hager versus M&K Construction2021, NJ LEXIS 332 (NJ, April 13, 2021).

Hager suffered a back injury in a work accident in 2001. He had an operation and was using opioid drugs for chronic pain. In 2016, Hager joined the New Jersey medical marijuana program and began using medical marijuana for both pain management and overcoming an opioid addiction. His marijuana recipe was costing him more than $ 600 a month. An employee compensation court ordered the employer Hager to reimburse the running costs for his medical marijuana. An appeals court upheld this decision.

The employer made several arguments as to why it should not be necessary to pay for the employee’s medical marijuana expenses. All were rejected by the New Jersey Supreme Court.

First, the court ruled that the Federal Controlled Substances Act (CSA) does not override the state’s medical marijuana law, nor does it subject the employer to potential federal criminal liability for aiding and abetting. The CSA is the federal law that makes marijuana illegal. Despite its illegal status, the court found that the U.S. Department of Justice gave priority to law enforcement for marijuana and that Congress prohibited the DOJ from using allocated funds to prevent states from enforcing their medical marijuana laws. The court therefore concluded that the medical marijuana law did not constitute an obstacle to the achievement of the congressional objectives and therefore no preliminary decision was made. In addition, the court was not convinced by the employer’s argument that it would “support and encourage” a crime by promoting Hager’s possession of marijuana, which is illegal under the CSA. Finding that the employer “went to great lengths” to oppose Hager’s marijuana use – as the litigation shows – to reimburse him for medical marijuana expenses did not add to his marijuana possession. Rather, it was enforced by a court order. Given the lack of intent on the part of the employer, there was no accessory to any crime.

Second, the court rejected the employer’s argument that medical marijuana was not an “appropriate or necessary” treatment under the New Jersey Workers’ Compensation Act. The court ruled that, subject to competent medical evidence, medical marijuana may constitute reasonable and necessary due diligence under the New Jersey compensation system. Hager provided a medical certificate that he continued to have chronic pain and that ongoing treatment was necessary. Medical marijuana was seen as an appropriate medical treatment because it provided pain relief and treated Hager’s addiction to opioids.

Eventually, the court rejected the employer’s argument that it fit into an exception to the state’s medical marijuana law. In particular, the Medical Marijuana Act provides that medical marijuana reimbursement for “a government medical aid program or private health insurer” is not required. The employer applied to be exempt from this provision. However, the court ruled that the legislature did not intend to treat workers’ compensation insurers as private health insurers or government medical assistance programs. The legislature could have expressly excluded the employee compensation institutions, but did not do so. Therefore there was no exemption from the reimbursement obligation.