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Recent NJ Worker’s Compensation Decision holds Public Employer Responsible to Reimburse Injured Employee’s Medical Marijuana

By: Attorney Gary E. Adams & Attorney Barry A. Dratch

On June 28, 2018, Worker’s Compensation Judge, Lionel Simon, ordered a New Jersey municipality to pay for its injured worker’s medical marijuana. In his decision, in McNeary v. Township of Freehold, Judge Simon ordered that Freehold Township reimburse its injured employee, Steven McNeary, for the marijuana he uses to treat his muscular spasticity. This is the first instance a public employer has been ordered to pay for medical marijuana in New Jersey.   In a prior New Jersey case in 2016, Watson v. 84 Lumber, the Honorable Ingrid French, ordered a private entity to authorize a doctor for ongoing participation in New Jersey’s Medical Marijuana Program.

Judge Simon, at the time of the hearing, justified his position stating, “I believe , and I think science supports this, is that medical marijuana is safer, it’s less addictive, it is better for the treatment of pain” than opioids. Judge Simon, further explained, “What else is important to note here in this, Mr. McNeary’s case, there is documented medical need and the concern is that Mr. McNeary is going to become addicted to the opioids… and this Court is aware of the tremendously, the explosion of these narcotics on the streets in the United States in the last decade, the tremendous amounts of death and addiction that are associated with these opioids.”

Freehold Township’s argument that they should not be responsible for payment for marijuana is that since marijuana is illegal on the federal level, the township would be breaking the law by essentially providing the marijuana for McNeary. Freehold Township’s basis for objection, is marijuana’s status as a Schedule 1 controlled substance under federal law.   The attorney for PMA Group and Freehold Township argued that New Jersey’s medical marijuana law is preempted by federal law designating it as illegal, and cited a recent ruling from Maine Supreme Court holding that insurance can’t be ordered to pay for marijuana when it is prohibited under Federal Law. Bourgoin v. Twin Rivers Paper Company, 2018 ME 77.
 
Judge Simon, however, disagreed, with Freehold Township’s objection, stating that since Freehold was simply reimbursing McNeary for the marijuana he bought, the town would not run afoul of federal law. Judge Simon stated, “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.”
 
Judge Simon’s decision is in line with the growing body of scientific research, which shows a decline in opiate use in States where medical marijuana has been legalized. New Jersey’s Medical Marijuana program has grown to more than 25,000 participants.   Therefore, it appears that there will be more of the cases heard in the New Jersey Worker’s Compensation Courts in the coming years. Judge Simon stated that he welcomes “a reviewing court to tell me I’m right or wrong. In the meantime, ‘it’s time for us, as the Division of Compensation, to try to get away from these opioids which are killing people and I don’t say that lightly. They are killing people.”
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