By Tulay Turan, J.D.
An employer’s reimbursement of a registered patient’s use of medical marijuana does not require the employer to commit the offenses prohibited by federal law.
In a case of first impression, a federal district court in New Jersey affirmed a workers’ compensation judge’s order for a construction company to reimburse a former employee for his use of medical marijuana prescribed for chronic pain following a work-related accident. The court ruled the federal Controlled Substances Act (CSA) did not preempt the New Jersey Compassionate Use Medical Marijuana Act (MMA) because there was no conflict as it is possible to comply with both laws (Hager v. M&K Construction, January 13, 2020, Currier, H.).
Back injury. In 2001, the employee was injured when a truck delivering concrete dumped its load onto him. Although the employer initially denied his workers’ compensation claim, fifteen years later when the trial began, it stipulated he had sustained a compensable accident. After experiencing back pain and seeking treatment, he was diagnosed with central disc herniation and disc bulging. He initially used his private insurance to pay for medical treatments, but in December 2001, he left his employment due to the pain. His health insurance terminated in 2002.
After the employer and its insurer continued to deny compensation benefits, the employee retained counsel who referred him to a neurosurgeon who performed surgery in 2003. The surgery was unsuccessful in relieving his pain and by 2006, he was prescribed Oxycodone. After more doctor visits regarding pain management, he had a two-level lumbar fusion in September 2011. That surgery also was unsuccessful at reliving his pain. He was again prescribed opioids and, in 2015, was determined to be dependent on them. In 2016, another doctor provided him with a prescription for medical marijuana and he was able to stop taking opioids. He continues to treat his pain with the prescribed two ounces of medical marijuana per month. He pays $616 a month out-of-pocket for the prescription.
Reimbursement of medical marijuana. After several days of trial, the issues left for the judge were the award of permanent disability and future medical treatment. The judge found the present condition of the employee’s lumbar spine and all consequences related to it were causally related to his accident at work. He also found the employee exhibited permanent partial total disability of 65 percent, with 50 percent attributed to his orthopedic condition and 15 percent attributed to the effects of medical marijuana. The judge ordered the employer to reimburse petitioner for the costs of medical marijuana and any related expenses. The parties filed this cross appeal.
Preemption. After noting that the issue of whether the MMA is preempted by the CSA in the context of a workers’ compensation case had not been addressed by any New Jersey state court, the court rejected the employer’s argument that it was physically impossible for an employer to comply with both the CSA and MMA. Rather, the court found there was no conflict between the laws. Under the CSA, the possession, manufacture, and distribution of marijuana is a criminal and punishable offense. However, an employer’s reimbursement of a registered patient’s use of medical marijuana does not require the employer to commit those offenses. In addition, the MMA does not prohibit punishment for those offenses. Rather it accords limited state-law immunity from arrest and prosecution to individuals who use medical marijuana in compliance with the state law. “This immunity does not prohibit the federal government from criminalizing or punishing that conduct. Nor does the MMA bar federal regulation and enforcement,” the court wrote.
No aiding and abetting. The court also rejected the employer’s argument that the CSA preempts the MMA because it would be aiding and abetting the employee in the commission of a crime, the possession of marijuana, if it reimbursed him for medical marijuana as ordered by the compensation judge. Here, the employer is not an active participant in the commission of a crime. The employer would be complying with an order requiring it to reimburse a person for the legal use of medical marijuana under state law. As such, the employer has not established the requisite intent and active participation necessary for an aiding and abetting charge.
The court also noted that one cannot aid and abet a completed crime. The employer is not purchasing or distributing the marijuana on the employee’s behalf. It is only reimbursing him for his legal use of the substance. The employee has already obtained the marijuana before the employer reimburses him. The employer is never in possession of the marijuana. Therefore, the federal offense has already occurred and the employer cannot abet the completed crime. “The compensation judge’s order directing an employer to reimburse its employee for the use of prescribed and regulated medical marijuana is not prohibited under a federal preemption argument,” the court wrote.
No threat of federal prosecution. The court also rejected the employer’s argument that compliance with the order exposed it to federal prosecution for aiding and abetting the employee in the possession of marijuana. The court found the employer presented no evidence that it faced a credible threat of prosecution. The employer did not point to any federal prosecution against an employer or insurance carrier for its reimbursement of authorized medical marijuana treatment.
Requirement to cover costs. After finding no conflict between the CSA and MMA, the court addressed the employer’s additional arguments. It rejected the argument that a workers’ compensation insurer should be treated the same under the MMA as a private health insurer, which may not be required to cover the costs of medical marijuana. New Jersey only designated two categories of entities that may not be required to reimburse the costs of medical marijuana: government medical assistance programs or private health insurers. “If the Legislature wished to relieve workers’ compensation insurers from any obligation to pay the costs of medical marijuana, it would have done so,” the court wrote.
Medical marijuana as reasonable treatment. The court also rejected the employer’s argument that the judge failed to consider whether medical marijuana can be a necessary and reasonable form of treatment under the Workers’ Compensation Act because it is illegal under the CSA. The court found the judge did consider “alternative legal modalities of treatment” and was satisfied that use of medical marijuana was reasonable and necessary for the treatment of the employee’s chronic pain. Thus, the court affirmed the order for reimbursement of the employee’s use of medical marijuana.
Disability findings. Lastly, because of the deference accorded to a compensation judge’s findings, the court affirmed the finding that the employee had a 65 percent permanent partial total disability.
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