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Construction Company Ordered to Reimburse Workers’ Compensation Claimant for Medical Marijuana in NJ

According to Jim Sams of Insurance Journal, on April 13, 2021, M&K Construction was ordered by the New Jersey Supreme Court to reimburse Vincent Hager, a workers’ compensation claimant, for use medical marijuana to ease his back pain after sustaining an injury at work.

Back in 2001, Hager was employed as laborer with M&K Construction and injured his back while moving a load of cement in a wheelbarrow. Despite surgery, Hager continued to experience pain and he was ultimately prescribed opiates for treatment.

Sams writes, “In 2016, he enrolled in New Jersey’s medical marijuana program. Dr. Joseph Liota prescribed marijuana to wean Hager off of opioids. The doctor later increased the prescription to two ounces per month — the maximum amount allowed — costing $600 per month.”

M&K argued the following:

  • If M&K pays for Hager’s marijuana, they could be subject to criminal liability under federal law.

  • “The federal law lists marijuana as a Schedule I drug — the government’s strictest classification of controlled substances. No valid medical use is recognized, meaning marijuana cannot be prescribed,” according to Sams.

  • M&K attorney, Matthew Gitterman said despite those apparent conflicts, employers can’t pick and choose which laws to obey. Gitterman stated, “Whether the payment is direct or indirect, the payment is still for marijuana. It’s knowingly for marijuana. It’s a crime.”

  • M&K indicated that Hager was no longer injured and no longer needed medications.

  • “M&K argued that it should be treated as a health insurer, which the New Jersey Compassionate Use Act specifically exempts from any mandate to reimburse patients for marijuana use.”

  • M&K also argued that marijuana is not a reasonable and necessary medical treatment.

Ultimately, the New Jersey Supreme Court’s decision, written by Justice Lee A. Soloman, indicated the following:

  • Sams writes, “The high court rejected M&K Construction’s argument that if it paid for Vincent Hager’s marijuana it could be subject to criminal liability under federal law,” and the decision says that M&K “fails to show – and we strain to find – how its compliance with the order exhibits a specific intent to aid-and-abet Hager’s marijuana possession.”

  • Solomon cited “Congress’ decision in each of the seven past fiscal years to bar the Department of Justice from prosecuting marijuana users and sellers who complied with state laws.”

  • “A workers’ compensation court found Hager was permanently disabled with a 65% disability rating — 50% because of complications after back surgery and 15% attributable to his marijuana use. The court also ordered M&K to continue paying for Hager’s medical care, including reimbursement for marijuana.”

  • State statutes very clearly indicate “that the term ‘health insurance’ does not include medical care provided through workers’ compensation law.”

  • Sams writes, “The court also rejected M&K’s argument that marijuana is not a reasonable and necessary medical treatment. Competent medical evidence was submitted to justify the request and the state legislature itself recognized marijuana’s ability to relieve pain when it adopted the Compassionate Use Act.”

We will be following this trend closely.

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