On June 28, 2018, the Honorable Lionel Simon, J.W.C., in a well reasoned oral decision, in a case of first impression, held that an employer must pay the cost of medical marijuana treatment for an employee's work related injury. McNeary v. Freehold Township.

Petitioner was injured while working for the Department of Public Works of Freehold Township.

In considering petitioner's application to require his employer to continue to pay for his medical marijuana treatment , the court considered petitioner's medical referral note, his attending physician's statement, his Medical Marijuana Patient identification card, a receipt for Dr. Schenker's evaluation, a New Jersey Department of Health receipt, a Compassionate Care receipt, the Breakwater Dispensary receipt, and the office note of the Spine and Pain Center. Based upon this evidence, the court found that “the petitioner has complied with the New Jersey Medical Marijuana Act's requirement for the Court to consider granting medical marijuana.”

Initially, the court had to resolve the preemption argument of respondent, that is, because the federal law still prohibits the use of marijuana, respondent argued that a New Jersey court could not require an employer to violate the federal law. The court recognized that indeed “there is no doubt there's a conflict here. It exists.” However, the court noted that:

[T]he legislative intent (of both the federal and state statutes) was to curtail the use and distribution of illicit narcotics for the purpose of the overall general public health. And as we all know living in this society, wherever drugs are, there's a terrible increase In related crimes … everything from burglary to homicide … (and) the New Jersey Medical Marijuana Act is not in conflict with that.

In requiring an employer to pay for petitioner's medical marijuana treatment, the court pointed out that the employer would “never possess, never distribute, never intend to distribute these products” but would simply be signing a check. For this reason, the court concluded that this does not mean that the employer “is in any way complicit with the distribution of illicit narcotics.”

In ruling upon the substance of petitioner's request to require his employer to assume the cost of the marijuana treatment for his medical condition, the court noted “there is a documented medical need and the concern is that Mr. McNeary is going to become addicted to opioids, percocet and others (because of) the explosion of these narcotics on the streets in the United States in the last decade … and addiction that are associated with these opioids.”

Because the Workers' Compensation statute “is social legislation and it changes with the times,” the court properly determined that “it's time for us, as the Division of Compensation, to try to get away from these opioids which are killing people.” In fact, the court found that not only is marijuana cheaper, safer and less addictive than opioids in general, in this particular case it was better for the immediate treatment of the muscular spasticity from which McNeary suffers, and the long term prognosis is better.

This case is not about whether one supports or opposes the legalization of marijuana; it is about whether an employer should be responsible for the cost of medically appropriate treatment for an employee's work related injury. If an employee sustains a work related injury for which a doctor prescribes an opioid for pain, the employer must pay for the treatment. If the same employee, with the same work related injury, is prescribed medical marijuana, which is cheaper and less addictive, should not the employer also pay? In this author's opinion, to ask the question is to answer it.

In order to avoid petitioner's potential abuse of the medical marijuana, the court devised a supervisory program whereby the petitioner's application to require the employer to continue to pay for his medical marijuana would be granted for an initial 90 days, and that it would “be continued as long as the doctor indicates so, but as long as we keep getting doctor's notes saying it's still needed.”

In the final analysis, Judge Simon, after considering the medical evidence and the beneficial effect the medical marijuana was having on McNeary, granted the application to require the employer to pay for this treatment because, overall, Judge Simon felt “it's the right thing to do.”

Recognizing that this decision is one of first impression, that the balance of McNeary's case is still pending, and welcoming an appellate ruling on the matter, it is noted that this ruling is only interlocutory. It may be some time before a higher court gives judicial guidance as to whether or not, in some cases, marijuana might have a therapeutic usefulness, is therefore compensable, and that Judge Simon's avant-garde decision was indeed “the right thing to do.”

Stay tuned.

Louis Locascio, a Monmouth County Superior Court judge from 1992 until 2009, is now of counsel with the Red Bank office of Gold, Albanese, Barletti & Locascio, where he heads up their civil and family mediation/arbitration department. He is a certified civil and criminal trial lawyer.