NJ Court Approves Order Requiring Employer to Reimburse Worker for Medical Marijuana

In a case of first impression, earlier today (January 13, 2020), the Appellate Division of the Superior Court of New Jersey affirmed an order of a state workers’ compensation judge that required an employer to reimburse its employee for the employee’s use of medical marijuana prescribed for chronic pain following a work-related accident [Hager v. M&K Construction, 2020 N.J. Super. LEXIS 4, A-0102-18T3 (appr’d for publication, Jan. 13, 2020)].

Summary of the Appellate Court’s Decision

While I’ll add more details in a post to come, my initial read indicates the Court concluded the following:

1. Tthat because the workers’ compensation judge’s order did not require the employer “to possess, manufacture or distribute marijuana, but only to reimburse the former employee for his purchase of medical marijuana, there was no conflict between the federal Controlled Substances Act (21 U.S.C.S. § 841) and the New Jersey Compassionate Use Medical Marijuana Act (MMA).
2. The employer’s compliance with the order did not establish the specific intent element of an aiding and abetting offense under federal law (I’m sure federal courts will be happy that this intermediate level state appellate court has settled that issue). Moreover, said the Court, one cannot aid or abet a “completed crime.”
3. The employer was not a private insurer and, therefore, it was not excluded under the terms of the MMA from reimbursing the costs of medical marijuana. The Court also indicated workers’ compensation insurers were not relieved of the potential obligation to reimburse an injured worker for medical marijuana.
4. Since the injured employee had demonstrated the severity and chronic nature of his pain, his attempts to unsuccessfully alleviate the pain with multiple surgeries and medical modalities, and the validated efficacy of the prescribed medical marijuana, the use of medical marijuana was reasonable and necessary.
5. There was no other legislative or legal barrier to an employer’s reimbursement of its employee’s expense for medical marijuana in a workers’ compensation setting.

Medical Marijuana Appeared to Be Employee’s Last Straw

As noted in other successful attempts to gain reimbursement for medical marijuana [see Larson’s Workers’ Compensation Law, § 94.06], one common denominator shared with this New Jersey case is the employee’s long, and unsuccessful attempt to alleviate the chronic pain without resorting to medical marijuana. Here the New Jersey court stressed:

To deprive petitioner of the only relief from the constant pain he has experienced for almost twenty years would eviscerate the principles and goals of the WCA and the MMA. As [the employer] has not presented this court with any concrete legal or legislative grounds upon which to overturn the compensation judge’s order, we affirm the order for reimbursement of petitioner’s use of medical marijuana [Opinion, p. 30].