Medical marijuana

A workers’ compensation judge has ordered a New Jersey municipality to pay for an injured worker’s medical marijuana, brushing aside an insurance carrier’s objections stemming from the drug’s status as a controlled substance under federal law.

It is at least the second time a workers’ compensation judge in the state has ruled in favor of a petitioner asking his employer to foot the bill for medical marijuana, perhaps a sign of growing  acceptance of marijuana in society. But for insurance companies who write workers’ compensation policies for employers reluctant to jump on the cannabis bandwagon, concerns over the disparity between state and federal law remains.

Workers’ Compensation Judge Lionel Simon ruled on June 28 that Freehold Township must pay for medical marijuana for Steven McNeary, who suffers from muscular spasticity, according to documents. The ruling was first reported in the blog of open government activist John Paff.

A lawyer for carrier PMA Group argued that New Jersey’s medical marijuana law is pre-empted by federal law designating it as illegal, and also cited a recent ruling from the Maine Supreme Court holding that an insurance carrier can’t be ordered to pay for marijuana when it is prohibited under federal law.

Lawyers for PMA Group and for another carrier in the Freehold case, Qual-Lynx, aren’t saying whether they’ll appeal, though Simon said he would welcome guidance from the Appellate Division or Supreme Court on whether New Jersey’s medical marijuana statute is pre-empted by federal law.

Simon’s ruling in McNeary v. Township of Freehold is at least the second in which a workers’ compensation judge in New Jersey ordered an employer to pick up the bill for medical marijuana use by an injured worker. In December 2016, Judge Ingrid French ordered the carrier for 84 Lumber to pay for medical marijuana used by Andrew Watson, who suffered a hand injury on the job. The insurance carrier for 84 Lumber did not appeal that ruling, said Philip Faccenda, the Cherry Hill attorney who represented petitioner Andrew Watson.

In the Freehold case, Simon declined to follow the Maine court’s June 14 ruling in Bourgoin v. Twin Rivers Paper. In that case, citing the conflict between Maine’s medical marijuana law and the federal Controlled Substances Act, the court overruled a lower court that ordered a carrier to pay for marijuana for an injured worker.

The issuance of a second ruling ordering an employer to fund medical marijuana is significant, but the Maine ruling could be more significant, said John Kutner of Weber Gallagher Simpson Stapleton Fires & Newby in Bedminster. Kutner is not involved in the Freehold or Maine cases, but represents workers’ compensation underwriters.

The Maine ruling discusses at length the penalties an employer and insurance company could face for violating the Controlled Substances Act, and workers’ comp underwriters are “going to take note and take it into account when they’re making policy decisions,” Kutner said.

Under the Obama administration, the Department of Justice had a policy against prosecution of businesses or individuals for participating in state-sanctioned medical marijuana programs, but that policy was rescinded under the Trump administration, Kutner noted. Still, Congress continues to impose restrictions on use of federal funds for investigations and prosecutions related to medical marijuana, he said.

The federal government appears to be guided by the strong support the public has expressed for medical marijuana, said Kutner, adding that medical marijuana tends to be less expensive than the opioid drugs that are the only treatment alternative for many users.

“I can’t see it going backwards at this point because of the momentum it has,” he said.

The judge in the Freehold case said that both state and federal drug laws were intended to curb the distribution and use of illicit drugs and curtail drug-related crime.

“I don’t  think the New Jersey Medical Marijuana Act is in conflict with that. Certainly I don’t understand how a carrier who will never possess, never distribute, never intend to distribute these products, who will merely sign a check into an attorney’s trust account, is in any way complicit with the distribution of illegal narcotics,” he said, according to a transcript. “What else is important to note here is in this, Mr. McNeary’s case, there is a documented medical need and the concern is that Mr. McNeary is going to become addicted to opioids.”

McNeary’s lawyer, Metuchen solo Leonard Weiss, did not return a call about the case. Nor did James Supple of Supple, DiPopolo & Watson in New Providence, who represented PMA Group, or Christine Shea of Capehart & Scatchard in Mount Laurel, representing Qual-Lynx.