Author: Alfred Tumolo
On April 13th, 2021, The New Jersey Supreme Court affirmed the decision of the Appellate division in Vincent Hager v. M&K Construction and held that Hager had presented sufficient credible evidence establishing that medical marijuana from New Jersey’s Medical Marijuana Program was reasonable and necessary treatment. The employer must reimburse the costs and expenses associated with Hager’s medical marijuana use for his work-related injury.
Vincent Hager suffered serious injuries while working for M&K Construction in 2001 when a dump truck hauling concrete accidentally dumped the load on top of him. He suffered injuries to his lumbar spine including herniated discs and nerve damage which required multiple surgical interventions. Even after his course of treatment, he had permanent orthopedic and neurological residuals that require a lifetime of opioid pain management. His chronic radiating pain was not successfully treated with opioids, and an authorized doctor recommended New Jersey’s Medical Marijuana Program. By the time of his worker’s compensation trial, Mr. Hager was a medical marijuana success story and was able to wean himself off of opioid medication and regain some daily function. He sought reimbursement of his over $600 per month expenses for the marijuana as a medically necessary expense, and the trial court granted it along with a permanent partial disability rating to his spine.
The employer appealed the decision arguing that the marijuana was not reasonably medically necessary, that they would be subject to potential criminal liability for essentially ‘buying drugs’ that are Federally illegal, and also that they are exempt similar to health insurance carriers. The New Jersey Supreme court rejected each of these arguments. It held, similar to the appellate division that with competent medical testimony a particular treatment or service that will reduce symptoms or restore function is sufficient to satisfy the requirement of reasonable and necessary care. Further, the Court was not persuaded by the employers argument that compliance with the order would subject it to any aiding-and-abetting or conspiracy liability under the federal Controlled Substances Act, as it would be reimbursing the petitioner involuntarily through an Order. Finally, as worker’s compensation insurance is not supported as a type of health insurance in the Life and Health Insurance Code, they are not subject to the exemption from medical marijuana expense.
Going forward, this isn’t going to allow medical marijuana reimbursement to all injured workers in New Jersey, but it is a positive step towards more palliative care being required in worker’s compensation claims and possibly medical marijuana if it is ‘prescribed’ by an authorized physician. This case was based on a very particular set of facts, with specific injuries, a prescribed lifetime of medically necessary pain management, and testimony from authorized and private medical providers agreeing on the medical necessity of this treatment for his condition. With a different set of facts, and competent medical testimony, this decision could be relied on to seek other forms of non-traditional treatment that would ease the suffering of seriously injured workers. It remains to be seen if this will end the issue, or whether the part of this holding involving the interaction between the federal Controlled Substances Act and NJ State law will be petitioned to the US Supreme Court for further review.