By: Catherine M Shiels, Esq. and Samantha E Hahn, Esq.
At a June 28, 2018 hearing, a Workers’ Compensation Judge entered an Order directing Freehold Township to pay for a municipal employee’s medical marijuana. There is no written decision accompanying the Judge’s Order. However, this marks the second time that a New Jersey Workers’ Compensation Judge has directed an employer to pay for the controversial treatment. Previously, another New Jersey Workers’ Compensation Judge issued a written decision in which she also ordered an employer and its insurance carrier to reimburse an injured worker for medical marijuana.
Under the Federal Controlled Substances Act, Marijuana is classified as a “schedule one” substance. 21 U.S.C. §812(c). A schedule one substance is considered to have a high potential for abuse, no accepted medical use, and is unsafe for use even under medical supervision. 21 U.S.C. §812(b). It is illegal for any person to knowingly or intentionally manufacture, distribute, dispense, or possess a controlled substance. 21. U.S.C. §841(a). It is likewise illegal for anyone to aid or abet any activity described above. 21 U.S.C. §841 (h)(1). Despite the current federal law, thirty-one states have passed laws legalizing medicinal marijuana.
In 2010, the New Jersey Legislature passed the New Jersey Compassionate Use Medicinal Marijuana Act. The Act permits the use of marijuana to treat specific conditions including muscle spasm, seizure disorders, and terminal illnesses. Paragraph 14 of the Act specifically states that, “nothing in this act shall be construed as requiring a government medicinal assistance program or private health insurer to reimburse a person for costs associated with medical use of marijuana.” N.J. Stat. §24:6I-14. The Legislature did not comment on whether a Workers’ Compensation carrier could be compelled to pay for the treatment. Arguably, compelling payment would be forcing an employer/carrier to violate the Federal Controlled Substances Act.
On December 15, 2016, a Workers’ Compensation Judge issued the first written decision in New Jersey directing an employer to pay for medical marijuana. In Watson vs. 84 Lumbar, CP 2009-15740, the injured worker’s authorized treating doctor recommended marijuana to control his neuropathic pain from RSD. The treatment was not authorized, and Petitioner’s attorney filed a Motion for Medical and Temporary Disability Benefits. The judge found that the New Jersey Workers’ Compensation Act requires employers to provide all treatment necessary to cure and relieve the effects of a work injury and provide restored function when possible. N.J.S.A. 34:15-15. As the injured worker had met the requirements for admittance into the medical marijuana program, she ordered the employer to reimburse him for the costs of the treatment. The Decision did not address the tension between the State and Federal laws.
Other States have directly addressed the conflict between the Federal Controlled Substances Act and the State medical marijuana programs. In New Mexico, employers are required to pay for an injured worker’s medical marijuana prescription despite the current Federal law. The New Mexico Court of Appeals held that, although marijuana is a controlled substance, the Justice Department’s policy toward medicinal marijuana was, generally, to defer to State and local authorities. Lewis v. Am. Gen. Media, 355 P.3d 850, 856-859 (N.M.C.A 2015). While the activity might be illegal, there was no genuine threat of prosecution by the Federal Government. The Maine Supreme Court recently rejected New Mexico’s approach. It held that requiring an employer to subsidize a worker’s medical marijuana prescription would compel the employer to aid and abet in a federal crime. Bourgoin v. Twin Rivers Paper Company, 2018 ME 77 (ME 2018). The Justice Department’s internal policies on enforcement are irrelevant because they are subject to change. Id. at 20. Indeed, the 2013 policy referenced in the New Mexico case has since been rescinded by the current Attorney General, Jeff Sessions.
The Workers’ Compensation Judge’s recent New Jersey Order comes in the immediate wake of Maine’s Supreme Court ruling. Although the judge did not issue a written decision, the hearing transcript does shed some light into his thought process. The judge states:
“I honestly don’t feel in my heart of hearts that this is a conflict. Certainly I don’t understand how a carrier, who will never possess, never distribute, never intend to distribute these products, who will merely sign a check into an attorney’s trust account is in any way complicit with the distribution of illicit narcotics … if there’s anything criminal here, it’s how [opioids] have been force fed to injured people creating addicts. I believe, and I think the science supports this, is that medical marijuana is safer, it’s less addictive, it is better for the treatment of pain.”
It is yet to be determined whether marijuana will lead to a significant decrease in the usage and prescription of opioid medication; however, it is becoming a more sought out treatment option. It also remains illegal under Federal law. While the decisions of the two New Jersey Workers’ Compensation Judges are not binding, they will certainly embolden other likeminded Judges to set aside the potential legal risks to employers in favor of the desires of the injured workers.
 In New Jersey, as well as many other States, the carrier does not pay for medical marijuana directly. The injured worker pays for the treatment up front and is later reimbursed by the carrier.
Catherine M. Shiels, Esq. is a Shareholder in GRSLB&G’s Workers’ Compensation Department. She defends employers, insurers, and third party administrators against workers’ compensation claims in New Jersey and New York. Catherine can be reached at firstname.lastname@example.org.
Samantha E. Hahn, Esq. is an Associate in GRSLB&G’s Workers’ Compensation Department. She defends employers, insurers, and third party administrators against workers’ compensation claims in New Jersey and Pennsylvania. Sam can be reached at SHahn@grsl.com.