Employers Can Be Forced To Pay for Pot, NJ Supreme Court Rules

Nancy Grover

Trenton, NJ (WorkersCompensation.com) – “Like the compensation court and the Appellate Division, the Court concludes that medical marijuana may be found, subject to competent medical testimony, to constitute reasonable and necessary care under New Jersey’s workers’ compensation scheme.” With that, the New Jersey Supreme Court ruled that insurers can be forced to reimburse injured workers for medical marijuana.

In the case, Vincent Hager v. M&K Construction, the seven justices were “unpersuaded” by the company’s arguments, that reimbursing for medical marijuana would be tantamount to aiding and abetting and conspiracy liability under federal law, which deems marijuana to be illegal.

“M&K’s payments would not satisfy the specific intent requirement for aiding-and abetting liability when the facts so clearly indicate that it will be reimbursing Hager against its will and at the behest of the Court,” the ruling said. “Likewise, to the extent that the Order requiring reimbursement payments creates a conspiracy between Hager and M&K, M&K’s membership cannot be said to be intentional. Rather, its participation is being compelled by the courts.”

Hager sustained a back injury while working for M&K 20 years ago. He was prescribed opioids for pain following unsuccessful back surgery. In 2016 he began treatment with a hospice and palliative care physician, who enrolled Hager in New Jersey’s medical program. The idea was to help him with his pain and wean him off opioids. The marijuana cost him more than $600 per month.

“Under interpretive case law, it must be shown that the chosen treatment is ‘reasonable’ and ‘necessary’ to cure or relieve the injury of the worker. A mere showing that the injured worker would benefit from the treatment is not enough,” the court wrote. “Nevertheless, palliative care may be properly authorized under the [Workers’ Compensation Act], and workers who are permanently disabled and beyond hope of being cured are still entitled to continued treatment and services. Competent medical testimony that a particular treatment or service will reduce symptoms or restore function is sufficient to satisfy the requirement of reasonable and necessary care.”

The ruling upheld an appellate court decision from January 2020.

“The NJ Supreme has recognized that the workers’ compensation system has a legislative mandate to provide the safest medical care to cure and relieve occupational injuries,” said Jon L. Gelman, a New Jersey-based plaintiff’s attorney. The Court acknowledged both state and Federal trends to provide non-addictive and non-fatal pain relief in place of dangerous opioids. The legislative intent that embraced the creation and development of the social insurance system has given the Court a rational and logical basis, consistent with public policy and law, to order medical marijuana for palliative care.”

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