Breaking News-Decision Issued Yesterday: NJ Superior Court Directs Workers' Compensation Carrier to Reimburse Injured Worker for Treatment with Medical Marijuana

Vincent Hager v. M & K Construction (Division of Workers' Compensation), Docket
A-0102-18T3 (Superior Court of New Jersey, January 13, 2020).

Yesterday NJ Superior Court directed a workers' compensation carrier to reimburse an injured worker for treatment with medical marijuana.  The court refused to conclude that the Federal Controlled Substances Act (CSA) preempted New Jersey's Medical Marijuana and Workers' Compensation Statutes.

The Court reasoned that the carrier would never be asked to participate in an act by prohibited by the CSA, "possession, manufacture, or distribution of medical marijuana,. This was because reimbursement to Claimant would be none of those things, and further be an act permitted under New Jersey's Medical Marijuana law.  Because it is not physically impossible to comply with the MM Statute and CSA, preemption does not apply.

Second, the court dismissed the argument that the carrier would be aiding and abetting a crime by Claimant, possession.  It reasoned that Claimant would not be guilty of this crime per the MM Act, that one cannot aid or abet a crime after the fact, and that there would be no intent on the part of the carrier to aid and abet a crime.

Finally, the Court reasoned that the carrier faced no credible threat of Federal prosecution in light of the Rohrabacher Amendment which is attached to all Federal appropriations bills since 2014.  It prohibits the use of Federal funds by the Attorney General to prosecute states with medical marijuana laws including New Jersey.. This has been signed into law by our current president twice.

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Medical Marijuana and Workers' Compensation Updates:  Special Employment Law Edition

Two cases in Pennsylvania will test the limits of our Medical Marijuana Law's anti-discrimination provision. The provision states that employers may not refuse to hire an employee or discharge an employee because of their status as a registered medical marijuana patient.   

In Pittsburgh, medical marijuana cardholder Derek Gsell's suit contends that the anti-discrimination provisions were violated when a job offer he received from Universal Electric Corporation was rescinded after he tested positive for THC. The job was primarily an office/desk job.  This is an important caveat, as employers are not required to hire medical marijuana users for jobs involving public safety or that are high risk like bus drivers or hazardous material operators.

Also, in a case out Scranton, medical assistant Pamela Palmiter was fired for her use of medical marijuana when her employer was acquired by Commonwealth Health of Tennessee.  A federal judge has permitted her lawsuit to move forward and concluded that the anti-discrimination provisions of Pennsylvania's medical marijuana law create an implicit cause of action, even though that right to sue is not explicitly stated in the law.  The Judge reasoned that, without he right to sue, these provisions would be meaningless.  This was a disappointment for the employer who had argued federal law prevented such an action from going forward.

Both of these cases will be followed closely by this office given the federal law supremacy issues at stake which mirror those in workers' comp reimbursement cases.  

My Latest Presentations:

Thank you to the PA Self-Insurers Association for the opportunity to speak on medical marijuana and workers' compensation claims alongside Ted Carpenter, Esquire.  The presentation was part of their fall conference held in Harrisburg on October 29, 2019.

I will also be speaking this spring at a conference for the Pennsylvania Defense Institute as part of a panel on medical marijuana and employment issues.

Claimant's attorneys should not feel left out.  This Thursday, December 12th, I will be traveling to Wilkes-Barre to speak on medical marijuana and workers' compensation payment for NEPATLA (Northeast PA Trial Lawyers Association).  This will be part of their Personal Injury Potpourri Seminar.

A Special Thank You

A special thanks to Greising Law partners Angie Lorenz, Esq and Pam Harper, Esquire for inviting me to accompany them to the Judicial Independence Benefit event presented by Pennsylvanian's for Modern Courts.  This was held at the stunning Philadelphia Masonic Temple.  This organization works hard to create awareness of the need for a fair judiciary not influenced by special interests and political agendas.

Update on Medical Marijuana Reimbursement in Pennsylvania

You are receiving this email because you are a client, friend of the firm or interested in this topic.  Thank you for your support of our office and mission to have medical marijuana become a treatment covered by workers' compensation. 

Another Settlement
I have settled another case where money was allotted to reimburse an injured worker for out-of-pocket costs for treatment with MMJ.  This was in conjunction with an overall settlement of the claim.  My client had tremendous pain relief and is now able to return to work due their use of MMJ.

Another UR Finding Treatment Reasonable and Necessary
I just received a Utilization Review Determination finding  my client's treatment with MMJ to get off opiates reasonable and necessary.  The carrier still refuses to reimburse my client because of federal illegality.  The prior reason given for denial was lack of FDA approval.  It it my contention that these defenses were waived by the carrier when they requested Utilization Review of the MMJ use.  Stay tuned for an interesting legal fight.  

News from Around the State
Two Workers' Comp Judges have denied Claimant's requests for reimbursement in circulated decisions. Both decisions are very fact-specific.  The first was just circulated in Wilkes-Barre.  In that case, a UR found treatment with MMJ reasonable and necessary and the Employer appealed this determination to a Judge.  The Judge declined to direct the carrier to reimburse based upon his determination that marijuana is not a "prescription" subject to UR.  In lieu of deciding the case on the merits, the Judge dismissed Employer's petition based upon this procedural finding.

In the decision, the Judge failed to address Claimant's core argument that MMJ could be considered a "pharmaceutical" under the UR regulations.  Pharmaceuticals are not prescriptions yet they are subject to Utilization Review.  The Judge also noted in passing the illegality of MMJ, though this did not form the basis of his decision.  Counsel in that case is currently considering their appeal and other options.

In July 2019, a Pittsburgh Judge declined to award reimbursement based upon the reasoning of the Maine Supreme Court.  Counsel for the Claimant did not file a Brief and did not appeal.  The Judge wrote a very thoughtful decision summarizing the reimbursement cases from across the country and even cited an article I wrote for the Legal Intelligencer.  The Judge ultimately concluded that he could not compel a carrier to commit a federal crime, aiding and abetting the distribution of marijuana.

However, the Judge did not address the March 2019 New Hampshire Supreme Court ruling (issued subsequent to the Maine decision) that a blanket statement of illegality is not enough.  New Hampshire concluded that, for a carrier to not have to reimburse a Claimant for MMJ use, the carrier needs to demonstrate that the requested reimbursement "would expose the carrier to criminal prosecution under federal law."  While the Pittsburgh case is disappointing, I do believe counsel's failure to submit a brief laying out legal argument was a key factor in that ruling.

Upcoming Events
Upcoming Event
I will be speaking on medical marijuana and its effect on workers' compensation claims at the Pennsylvania Self-Insurers Association Legislative Meeting on October 29, 2019 in Harrisburg.

I continue to accept cases for injured workers' seeking MMJ reimbursement.  Referral fees paid and reduced fees available for injured workers who have resolved their wage loss claims but maintain open medical.