The New Jersey Supreme Court decision on April 13, 2021 in Hager v. M&K Construction will have a significant impact on public employers in the state, potentially increasing the cost of medical care by requiring reimbursement of medical marijuana expenses. The case also has national importance because the Court adopted a novel explanation on why the federal Controlled Substances Act does not preempt New Jersey’s Compassionate Use Act, more commonly referred to as the Medical Marijuana Act.
The case has a long history going back to 2001 when Vincent Hager had a load of cement dropped on his back. That led to numerous surgeries and eventually to an extensive dependency on opiates, including oxycontin. The critical point in the case was reached when Mr. Hager’s doctor, Joseph Liotta, recommended him for use of medical marijuana. Mr. Hager filed a motion requiring the employer and its carrier to reimburse him for the costs. Petitioner testified that he received relief from medical marijuana and that it helped him get off opiates.
Dr. Liotta testified at trial that the side effects were few from marijuana and that petitioner would benefit from it. Dr. Brady, a pain management physician, testified that he was licensed to prescribe medical marijuana but had never done so because he does not believe in its medical safety or effectiveness. He thought the risks were too great to Mr. Hager. Dr. Brady recommended that petitioner learn to live with the pain.
The Judge of Compensation construed Dr. Brady’s opinion about learning to live with the pain as lacking in compassion. The Judge found Dr. Liotta’s opinion to be more credible than that of Dr. Brady and ordered the employer to reimburse petitioner $616 per month for costs of medical marijuana.
The Appellate Division affirmed and the New Jersey Supreme Court took certification. The Supreme Court first commented that medical marijuana does constitute medical care in New Jersey because it can relieve the injured worker of the effects of a work injury like any other medication. The Court also concluded that workers’ compensation carriers are not considered to be health care providers. This was critical because the MMA law exempts health care carriers from having to reimburse patients for costs of medical marijuana.
The real battle in the case concerned the clash between the federal Controlled Substances Act and the MMA. The carrier argued that it could not be compelled to do something that was against federal law. Marijuana remains a Schedule One drug under the Controlled Substances Act. The carrier argued that states cannot step into territory that federal law has already legislated. The Supreme Court engaged in some fairly involved legal gymnastics to avoid admitting that requiring employers to reimburse workers’ for the cost of marijuana was a violation of the federal CSA. Its reasoning was that Congress has for years attached appropriation riders which prohibited the federal government from interfering with the various state medical marijuana programs. The court viewed the CSA as being “suspended” as to medical marijuana laws. Some other states have not agreed with this rationale at all.
Next the carrier argued ordering an employer to reimburse an injured worker for costs of marijuana is aiding and abetting a crime. But the Supreme Court rejected this argument and said that when a party follows a court order it cannot be considered to be breaking a law or committing a crime. The party is protected by the court order in the opinion of the Supreme Court.
What are the future issues public and private employers are likely to encounter in the coming years as an extension of the Hager decision?
- One issue that is almost certain to arise concerns the patient who continues to use opiates while using medical marijuana. If opiates are still needed, doesn’t that undercut the argument that marijuana is improving one’s function and relieving the effects of the injury? Further, will use of both marijuana and opiates at the same time lead to more serious health risks than either one would alone?
- Another likely issue may arise if an injured worker using prescription marijuana requests stronger and more expensive strains of medical marijuana. What is the legal standard for justifying strong doses?
- Will doctors ever be willing to give opinions that medical marijuana is not improving function or will marijuana prescriptions be renewed indefinitely for years and years? To use workers’ compensation language, how does an employer successfully argue that the injured worker has reached maximal medical improvement? Currently, opiate use may be stopped when there is no improvement of function in the patient. Will that be the same test for users of medical marijuana? This is not discussed in Hager.
- Another potential issue may arise if a doctor prescribes medical marijuana and the patient becomes severely impaired while driving, causing serious to others. Will the doctor be held liable in a civil suit?
- From a labor law standpoint, public employers will need to know what actions they can take if someone using medical marijuana smells of marijuana at work and/or comes to work appearing to be impaired.
These and other questions are part of the shifting sands in New Jersey as the state embarks now on a recreational marijuana program where no prescription is even required. Notwithstanding the recent legislation legalizing recreational marijuana, medical marijuana will certainly be increasingly common in workers’ compensation because there are no copays and marijuana is quite expensive.
John H. Geaney, Esq
Capehart Scatchard, P.A.