Wade Clark Mulcahy LLP

<p style="text-align: justify;">The New Jersey Supreme Court recently issued a lengthy opinion holding that New Jersey’s Jake Honig Compassionate Use Medical Cannabis Act was not preempted by Federal law and that a workers compensation carrier must pay for an injured worker’s medical marijuana.</p>
<p style="text-align: justify;">By way of background, the matter of <a href="https://www.njcourts.gov/attorneys/assets/opinions/supreme/a_64_19.pdf?c=NGH"><em>Vincent Hager v. M&amp;K Construction</em></a> arose out of a back injury sustained by Hager while working for M&amp;K in 2001. Hager had surgery, but his pain persisted, and he continued to take prescribed opioid mediation. In April 2016, Hager began receiving treatment from a hospice and palliative care physician who enrolled him in New Jersey’s medical marijuana program both as an alternative pain treatment and as a means to wean him off opioids.</p>
<p style="text-align: justify;">Under New Jersey’s Workers Compensation Act, a compensation carrier or employer must provide “such medical, surgical or other treatment … as shall be necessary to cure and relieve the worker of the effects of the injury” incurred in the course of employment.” Moreover, the fees for the treatment shall be reasonable.</p>
<p style="text-align: justify;">New Jersey’s Compassionate Use Act was enacted in 2010. Importantly, the Compassionate Use Act expressly provides that certain entities such as governmental medical assistance programs and private health insurers do not have to reimburse patients for their medical marijuana consumption.</p>
<p style="text-align: justify;">In determining whether a workers compensation carrier constituted a private health insurer, the New Jersey Supreme Court relied on New Jersey’s Life and Health Insurance Code, which expressly states, that “health insurance does not include worker’s compensation coverages.” Thus, the Court concluded that the New Jersey Legislature did not intend for workers’ compensation insurers to be treated as private health insurers or government medical assistance programs.  The Court cautioned that a mere showing that the injured worker would benefit from the treatment was not enough to trigger coverage. However, if there was competent medical testimony that a particular treatment or service would reduce symptoms or restore function, the Court held that a compensation carrier or employer must provide coverage for such treatment, which included medical marijuana.</p>
<p style="text-align: justify;">Accordingly, compensation carriers, health insurers and even liability carriers should pay close attention to medical marijuana laws in those states that have adopted them, as this may impact what is deemed to be necessary medical treatment.</p>
<p style="text-align: justify;">Thanks to Mike Noblett for his contribution to this post. If you have any questions or comments, please contact <a href="mailto:chayes@wcmlaw.com">Colleen Hayes</a>.</p>