In a ruling that could have far-reaching effects, an appeals court in New Jersey ruled this week that a contractor must reimburse a former employee for the cost of the medical marijuana that he uses to treat his incessant pain from a work-related injury.
“This is huge. And the significance of this court decision cannot be overstated,” said Steve Schain, a lawyer with the Hoban Law Group, which specializes in cannabis law. “It sets a precedent for other state’s workers’ comp programs and national private health insurers.”
Vincent Hager was a 28-year-old laborer in 2001 when a truck delivering concrete dumped its load onto him, according to court documents. The resulting nerve damage, and the spinal surgery Hager underwent to relieve the pain, left him unable to work. His employer, M&K Construction, denied his workers’ compensation claim for 15 years, according to court documents.
Hager became addicted to his opioid painkillers. A doctor suggested that Hager wean himself off oxycodone, OxyContin, and Valium with medical marijuana. It worked, and Hager successfully stopped taking the powerful drugs.
The cost of medical marijuana is not usually covered by insurance. That’s because marijuana is considered a Schedule 1 substance by the federal government. The U.S. Food and Drug Administration maintains that marijuana has no accepted medical use, despite laws in 33 states that allow the drug for selected ailments.
Hager, who uses two ounces of state-approved medical cannabis every 30 days, spends about $616 out-of-pocket a month.
In 2018, a worker’s compensation judge ruled that Hager had indeed been injured on the job. The judge ordered M&K to reimburse Hager for the cost of medical marijuana and any related expenses. The company balked and appealed.
M&K claimed that the federal Controlled Substances Act preempted New Jersey’s medical marijuana laws. M&K’s lawyers said it would be aiding Hager in the commission of a crime if it reimbursed him for medical marijuana.
“We are not persuaded,” said the unanimous three-judge appellate division panel in its ruling.
“One cannot aid and abet a complete crime,” the appeals court wrote. “M&K is not purchasing or distributing the medical marijuana on behalf of [Hager]; it is only reimbursing him for his legal use of the substance.”
The New Jersey ruling sets a precedent because it marked the first time that a reimbursement case was focused on the Controlled Substances Act, said Jenifer Dana Kaufman, a workers’ compensation lawyer based in Abington. Kaufman has two similar cases pending in Pennsylvania — one in Brookville, Jefferson County, and another in Reading.
“Saying it’s illegal is not enough,” Kaufman said. “The court took issue with whether federal law trumps state law and found if there’s not federal preemption, state law applies.”
There have been courts in other states — Connecticut, New Hampshire, and New Mexico — that ruled that specific injured workers must be reimbursed for their medical marijuana.
The New Jersey case is an important example of the courts “recognizing the consequences of legalizing marijuana.” said Bill Roark, co-chair of the Pennsylvania Bar Association’s Medical Marijuana and Hemp Law Committee.
“On the surface, it’s a small issue,” Roark said. “But the courts have to get into the weeds, no pun intended, to provide clarity for the law and expand patient rights.”
For more news about hemp, medical marijuana, and adult-use cannabis, go to Inquirer.com/cannabis.