The use of medical marijuana in workers’ compensation has been the subject of heated debate and discussion recently. New Jersey passed a medical marijuana statute in 2010, and it was in 2017 that this first became the subject of a decision in a workers ‘ compensation case for a private employer; and 2018 for a public entity. There are many concerns involved, including cost; the fear of financing a personal habit; and the fact that federal law still considers marijuana a schedule 1 drug and therefore conflicts with state law.
The use of medical marijuana has not happened in a vacuum. The movement towards the use of medical marijuana has coincided with the rising attempts to stem the opioid crisis. As states take efforts to stop opioid addiction and limit the use of those medications, many have advanced the call for medical marijuana. The studies that seem to push for the use of medical marijuana argue that it is less addictive than opioids, and that it is very effective in helping with pain control. The fact remains, however, that while the current President has indicated his desire to leave this decision to the individual states, at this time the use of marijuana remains prohibited under federal law.
It is with this backdrop that the New Jersey Compassionate Use of Medical Marijuana Act (CUMMA) was passed in January, 2010, and contained an analysis of the conflict between federal and state laws. The Act referenced the FBI’s finding that 99 out of every 100 prosecutions for marijuana offenses are under state, and not federal law. The stated purpose of legalizing medical marijuana (as opposed to recreational marijuana) was to prevent prosecution of those who use marijuana to alleviate suffering from debilitating medical conditions, as well as “their physicians, primary caregivers, and those who are authorized to produce marijuana for medical purposes.” Insurance companies are not named on that list.
It is clear from the language throughout the statute, great care is being taken to limit the use of medical marijuana as much as possible. The statute contains long lists of criteria needed for the patient to be eligible for the program, and even longer lists of criteria for doctors to qualify as prescribing physicians in the program.
The use of medical marijuana must be prescribed through a “bona fide physician-patient relationship,” by a doctor with an ongoing responsibility for assessment and care of the patient. The patient must then, with the certification of the doctor, apply for registration for this use of medical marijuana. Even then, the use of medical marijuana may only be approved for specific listed conditions, including HIV; AIDS; cancer; ALS; MS; terminal cancer; muscular dystrophy; or inflammatory bowel disease, including Crohn’s disease. Generally, those will not be relevant to workers’ compensation cases.
The concern arises from the other set of conditions listed. The statute indicates the use may be approved for conditions, “if resistant to conventional medical therapy: seizure disorder, including epilepsy; intractable skeletal muscular spasticity; or glaucoma. In both cases in which medical marijuana was ordered by the Court, it was prescribed under the portion of the statute allowing use for intractable skeletal muscular spasticity.
As it relates to workers’ compensation claims, the New Jersey Workers’ Compensation Act requires medical treatment that is necessary to cure and relieve a worker of the effects of their injury. Ordinarily, a doctor indicating that the recommended treatment would cure and relieve the effects of the injury alone would be enough to require treatment. In the case of medical marijuana, of course, the treatment requires both a doctor certifying that the treatment is reasonable and necessary to cure and relieve the condition; and also that the petitioner qualified separately for his card under the CUMMA.
This issue was brought before Judge French in the Workers’ Compensation Court in the case Andrew Watson v. 84 Lumber. In that claim, petitioner received an award of 33 1/3% of partial total for various conditions, part of which was for intractable pain as a result of complex regional pain syndrome. As part of the settlement, petitioner was to continue under pain management with the respondent’s pain management doctor. The doctor felt that petitioner’s neuropathic pain might make him a good candidate for medical marijuana, and since the assigned doctor did not have authorization by the state to prescribe medical marijuana, petitioner was referred to his partner, who did have his license to prescribe.
At that point, petitioner was recommended for the program and received his card from the state. The costs of the exams, prescription card and prescriptions were then sought from the respondent, and the case was tried as a Motion for Medical Benefits to obtain payment from the respondent. At that point, respondent withdrew authorization for the original pain management doctor and sought the opinion of another doctor. None of the doctors were willing to come to court to testify, and petitioner obtained a report from an outside expert, Dr. Tobe. No medical testimony was brought by the respondent, as respondent’s doctor refused to testify. In light of that, the court found that the medical evidence supporting the use of medical marijuana was supported.
In terms of applicable law, the court noted the obligation of the respondent under NJSA 34:15-15 to supply all necessary and related treatment, to cure and relieve the effects of the injury. It was noted that the protocol of referring petitioner to another doctor may not have been strictly followed, but that this was done based on the doctor’s finding of medical necessity and was in accordance with the statute. The court then found that the prescription was issued in accordance with the CUMMA, and that petitioner clearly satisfied the criteria. Factually, the judge noted the testimony showed that the pharmacist worked with the petitioner to determine exactly what strand of marijuana would work best for him, and that the end result was that petitioner was able to limit his use of narcotics through his use of medical marijuana. Further, his testimony was that as a result, his pain was limited, and that he was able to work in the service industry as a result.
In terms of expert testimony, Dr. Tobe did support the use of medical marijuana in limiting neuropathic pain and in turn reducing the use of opioids. As for the side effects, his testimony was that the negative side effects that are publicized from the recreational use of marijuana are much more limited, as medical marijuana is not laced with contaminants that might be found in marijuana produced for recreational use, as it is regulated. The court then directed the respondent continue to pay for the doctor visits and continue to reimburse petitioner for his prescription costs.
In her decision, the judge did not address the issue of the conflict between state and federal law. Rather, she simply addressed the treatment from the workers’ compensation standpoint – whether it was necessary to cure and relieve the symptoms, just like any other treatment modality.
The issue was again raised in Steven McNeary v. Freehold Township, decided by Judge Simon. petitioner, an employee of the Township of Freehold, had two claims for injury, and in the course of his treatment, received his card for medical marijuana and was receiving marijuana through one of the respondent carriers. During that time, a case came down from the Maine Supreme court, ruling that insurance carriers were not exempt from federal law and could be held responsible for paying for the prescription for medical marijuana under federal law. This led to the refusal to pay benefits, and the following Motion for Medical Benefits to resolve the issue. The position of the respondent’s attorney was that he could not recommend to any entity that they pay for prescriptions that could violate federal law.
Interestingly, in the opening statements, petitioner’s attorney advanced the position that the New Jersey statute preempts federal law. Judge Simon advised petitioner’s attorney that he did not feel that the state of New Jersey had the right to determine that its statute preempts federal law.
Judge Simon detailed his background as a prosecutor on the County and local level, and the intention of the drug statute to curtail illicit use and the associated crime. Based on this background, Judge Simon stated that he did not see a conflict, and stated that “I don’t understand how a carrier, who will never possess, never distribute, never intend to distribute these products, who will nearly (sic) sign a check into an attorney’s trust account is in any way complicit with the distribution of illicit narcotics.”
The court referred to the documented medical need for petitioner’s use of medical marijuana, as well as the doctor’s concern over his likelihood to become addicted to opioids. Judge Simon pointed to the opioid crisis, the death toll, and the studies that show medical marijuana is safer and more effective. He noted the long term use of medical marijuana is both safer and cheaper for carriers. His primary concern was supporting the change from opioids to safer treatment methods, such as medical marijuana. In fact, Judge Simon welcomed the parties to Appeal so that there would be a record decision from a higher court, stating “I welcome a reviewing court to tell me I’m right or I’m wrong. I frankly don’t know. I frankly think it’s the right thing to do and I am going to order it.”
The two courts that have decided cases have applied the basic terms of the Workers’ Compensation statute – if the treatment is reasonable and necessary to cure and relieve the petitioner of the effects of the condition, then it would represent compensable treatment. It is also clear that the petitioner and the prescribing doctor must comply with the terms of the Compassionate Use of Medical Marijuana Act.
The question remains, however, how this statute conflicts with federal law. The New Jersey statute specifically indicates that there is no conflict and that it protects from prosecution under federal law, but there is no indication federal law agrees with that interpretation. Until the issue of conflict of laws is fully tried in an appropriate court, this question will not be settled. In neither of the cases in which respondents were ordered to pay for benefits are they directly paying for medical marijuana. The New Jersey statute requires petitioner to pay for the prescriptions by themselves in cash. The respondents are merely reimbursing petitioner for the prescription costs, so that is certainly a measure of protection. It seems likely that the prescribing doctor and the patient themselves would have much more risk under this scheme.
There does appear to be evidence that the use of medical marijuana has the benefit of limiting opioid abuse, and that is certainly a benefit. I have seen many cases of opioid addition, resulting in very expensive detox, or dependence issues that can have significant costs to the respondent. A concern, however, is the open ended nature of these prescriptions. Judge French did not address the length of the prescription, but Judge Simon did specifically indicate that he wanted the prescriptions paid for as long as prescribed by the treating doctor. Theoretically, this same issue exists with opioids, as we often have the issue of trying to get a doctor to wean a petitioner off of medication over time.
In the next several months, we will hopefully get some additional answers, whether by the federal statute changing to reflect the movement of the states, or by a court adequately addressing the question of the conflict of laws. It is very apparent that different entities cannot agree on the proper answer to the question at this time. Even the courts have expressed their lack of certainty on the issue and have hoped to resolve in the near future.
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