Photo by Thom Morris.

Should an employer be required to reimburse an employee for the cost of medical marijuana treatments as a result of a work related injury?  On Jan. 13, 2020, the court answered this question in the affirmative. Hager v. M & R Construction, 2020 WL 218390 (App. Div.).

While working at a construction site in 2001, a concrete delivery truck dumped its load on petitioner. As a result, at age 28, he sustained a large L5-S1 herniated disc and an L4-L5 annular bulge.

Over the next 15 years, in an effort to relieve his constant back pain, petitioner received treatments from a chiropractor, a physical therapist, two neurosurgeons, a spinal surgeon, a pain management doctor, and a hospice and palliative care doctor. His operative procedures included a laminectomy and decompression of several nerve roots, as well as a two-level lumbar fusion.

When these surgeries and conservative treatments failed to relieve him of his continued pain, petitioner's doctors prescribed opioids, including oxycontin, oxycodone, valium, and lyrica, to which he became addicted. In order to come off the opioids, his doctor qualified him for and prescribed medical marijuana, which finally provided him with some relief. His doctor opined that, in order to manage his pain, petitioner would need to receive the marijuana, which is less physically addictive than opioids, for the rest of his life.

Respondent appealed the Workers Compensation judge's decision requiring respondent to reimburse petitioner for his future out of pocket medical marijuana costs ($616 per month).

Appellate Division Judge Currier, in affirming the Workers Compensation award, held that, contrary to respondent's contention, requiring the employer to reimburse petitioner these costs did not violate the Federal Controlled Substances Act  (21 U.S.C. 841) because the employer would not be possessing, manufacturing, or distributing the marijuana but only reimbursing the cost to petitioner. Additionally, the court pointed out that respondent produced no evidence of an intention by the federal government to enforce the Controlled Substances Act "in any state that has decriminalized medical marijuana."

Finally, Judge Currier astutely noted that petitioner's use of medical marijuana has permitted him to get off opioids and "that achievement, by itself, in light of the opioid crisis in existence today, should suffice as a rationale for the reimbursement of medical marijuana."

Although Judge Currier correctly noted that this was an issue of first impression at the appellate level, it was not the first time this issue was raised in New Jersey. Indeed, Workers Compensation Judge Lionel Simon, on June 28, 2018, based on different facts, made a similar ruling, in an unpublished oral decision, McNeary v. Freehold Township. At that time, this author predicted that, at some time in the future, a higher court would provide judicial guidance as to whether, in some cases, medical marijuana may have therapeutic usefulness. (See this author's op. ed. article in the Sept. 24, 2018, issue of the New Jersey Law Journal.) Well, it took only 18 months for Judge Currier to provide that guidance.

Next prediction? That this avant-garde decision, which permits a Workers Compensation judge to award medical marijuana expenses to a person duly qualified by a doctor, to receive marijuana to treat work-related injuries, will be a jumping off point for further development of this timely issue.

Specifically, assume scenario #1: a plaintiff in an automobile accident sustains a severe disabling injury for which he receives extensive customary treatment by various medical disciplines, including chiropractic, physical therapy, acupuncture, several surgeries, pain management, opioids and, eventually, because this treatment is unsuccessful, resorts to medically approved marijuana to relieve the pain. Assume further, that the cost of this extensive treatment exhausts his or her $250,000 personal injury protection benefits. Therefore, any uncompensated reasonable and necessary medical expenses, should be recoverable by plaintiff from the tortfeasor. N.J.S.A. 39:6A-12. (See dissent of Justice Albin in Haines v. Taft, 237 N.J. 271 (2019).) In such a case, in this author's opinion, those medical marijuana expenses should be boardable and subject to a jury awarding them to plaintiff and against the tortfeasor.

Scenario #2: assume the same medical facts as scenario #1, but plaintiff sustains his or her injury as a result of a slip and fall on black ice or in the produce isle of a supermarket. Should not all medical expenses, including medical marijuana expenses, be boardable and awardable by a jury to plaintiff and against the culpable defendant?

If a Workers Compensation judge is now allowed, pursuant to Judge Currier's decision, to award a petitioner medical marijuana expenses, why shouldn't a jury be permitted to award such expenses to an injured plaintiff and against a tortfeasor? I submit that to ask the question is to answer it.

Fodder for a future article in this column?

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.