M&K Construction must reimburse a former employee for medical cannabis prescribed to relieve back pain caused by a work injury sustained nearly two decades ago, the New Jersey Supreme Court ordered April 13.
In a 7-0 decision, the court rejected the company’s argument that paying for Vincent Hager’s medical cannabis could make the firm criminally liable under the law. M&K, which was ordered by a workers’ compensation judge to pay for Hager’s medical cannabis, “fails to show — and we strain to find — how its compliance with the Order exhibits a specific intent to aid-and-abet Hager’s marijuana possession,” the court said.
While Vincent Hager was an M&K employee in 2001 at age 28, a truck on a job site dumped a load of concrete onto him, resulting in chronic pain. Though he worked on light duty thereafter into 2002, his pain eventually caused him to leave his job and have a series of unsuccessful surgeries.
Hager developed an addiction to the opioids he was prescribed, according to court documents. He was prescribed medical cannabis in 2016, for which his monthly bill is $616. Hager has permanent partial disability totaling 65%, the earlier workers’ compensation court found.
The Supreme Court’s decision affirms an appellate division decision issued in 2020. It aligns with similar decisions from high courts in New Mexico and New Hampshire, but is a departure from decisions on similar matters Massachusetts and Maine, which have ruled that employers have no duty to reimburse workers’ compensation claimants for medical cannabis use.
“The call that they made in this case was a close call. There are other state courts that have gone the complete opposite direction and found that employers don’t have to reimburse for workers’ compensation claims for marijuana…I think that the impact of the decision goes beyond the context of medical marijuana and the context of workers’ compensation. I think it signals how the New Jersey Supreme Court is going to interpret the various cannabis-related laws being passed by New Jersey,” said Matthew Collins, labor and employment practice co-chair at Brach Eichler in Roseland.
While cannabis remains a controlled substance on the federal level, guidance from senior personnel in the U.S. Department of Justice “deprioritized—but not prohibited—federal prosecution of marijuana activities that are legal under state law;” the court noted, and Congress has deprioritized prosecution for possession of medical cannabis as well.
Justice Lee Solomon wrote that the court was “unpersuaded by M&K’s contention that its compliance with the order would subject it to aiding-and-abetting and conspiracy liability under federal law on the theory that it would be assisting in Hager’s possession of marijuana” because M&K’s payment of Hager’s medical cannabis is clearly being compelled by courts.
Hager’s attorney, Victor Matthews of Denville, said he was “very pleased” for his client “to be able to carry on with his treatment and have the means to pay for it,” noting that for the last 20 years, Hager’s been on limited funds, and that medical cannabis isn’t inexpensive to obtain.
“Another thing that’s important to understand is this workers’ comp statute is designed as a social contract…to support people, who have been injured over the course of their normal work. That’s what the whole intent is, and if we come to the point where medical marijuana is an effective treatment modality, we have to afford that to those people [that need it],” Matthews said.
Biancamano & Di Stefano partner Matthew Gitterman, M&K’s attorney, had no comment on the ruling.
Brach Eichler’s Collins noted that, along with the Supreme Court’s decision last year that former funeral director Justin Wild may move forth with a discrimination suit he filed against former employer Carriage Funeral Holdings Inc., “it just really shows … that they’re trying to give the maximum effect to the medical marijuana law. We got the recreational adult use law that’s been passed, and I would think it’s again a foreshadowing that they’re going to apply the same rationale as challenges under that law may come up.”