Scarinci Hollenbeck, LLC, LLCScarinci Hollenbeck, LLC, LLC

Firm Insights

NJ Workers’ Compensation Judge Rules Claimant Entitled to Insurance Coverage for Medical Marijuana

Author: Daniel T. McKillop

Date: August 1, 2018

Key Contacts

Back

According to a Recent Decision by a New Jersey Workers’ Compensation Judge, an Injured Municipal Worker is Entitled to Coverage for Medical Marijuana

An injured municipal worker is entitled to insurance coverage for medical marijuana, according to a recent decision by a New Jersey workers’ compensation judge. In reaching its decision, the judge rejected the argument that it’s unconstitutional for a court to order an insurance carrier to pay for treatment because it conflicts with federal law.

NJ Workers' Compensation Rules Claimant Entitled to Insurance Coverage for Medical Marijuana
Photo courtesy of Outco California (Unsplash.com)

NJ Judge Orders Insurer to Pay for Medical Marijuana

In McNeary v. Township of Freehold, Steven McNeary, who suffers from muscular spasticity, sought a court order requiring the insurance carrier for Freehold Township to pay for his medical marijuana treatment. However, the insurer refused, arguing that the CSA’s criminalization of marijuana trumps state-level laws. In support, it cited Bourgoin v. Twin Rivers Paper, in which the Maine Supreme Court overturned a lower court ruling that ordered a carrier to subsidize an injured worker’s medical marijuana based on federal preemption by the CSA.

New Jersey Workers’ Compensation Judge Lionel Simon disagreed. He ruled that New Jersey’s medical marijuana statute is not pre-empted by federal law. In reaching his decision, Judge Simon noted that the CSA and the New Jersey Medical Marijuana Act are both intended to deter the distribution and use of illicit drugs. As he explained:

I honestly don’t feel in my heart of hearts that this is a conflict. Certainly, I don’t understand how a carrier, who will never possess, never distribute, never intend to distribute these products, who will nearly sign a check into an attorney’s trust account is in any way complicit with the distribution of illicit narcotics.

Judge Simon further emphasized that McNeary had “a documented medical need” for medical marijuana. He also cited concerns that McNeary could become addicted to opioids and other drugs if not able to obtain medical marijuana. “Quite frankly, this Court is very aware of the . . . 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,” Judge Simon stated. “If there’s anything criminal here, it’s how these drugs have been force fed to injured people creating addicts.” Judge Simon added:

I believe, and I think the science supports this, is that medical marijuana is safer, it’s less addictive, it is better for the treatment of pain. It is better for, in this particular case, the muscular spasticity which Mr. McNeary suffers from. The long-term prognosis is better and, quite frankly, it is cheaper for the carriers. I think it’s the right thing to do and I feel no moral or legal hesitancy in that.

In granting the application, Judge Simon stated that he would “welcome” New Jersey’s Appellate Division or Supreme Court to address the issue. “I simply think it’s the right thing to do. And, again, I welcome a reviewing court to tell me I’m right or I’m wrong,” he stated.  

Conflict Between State and Federal Cannabis Laws

The increasing tension between state and federal law regarding marijuana use has created significant legal uncertainty for employers and their workers. While many states have decriminalized marijuana use and possession, it remains illegal under the federal Controlled Substances Act (CSA).

McNeary is not the first time that a New Jersey court has addressed the conflict. Last year, a different New Jersey judge ruled that medical marijuana must be covered by workers’ compensation insurance. The plaintiff, Andrew Watson, suffered a hand injury while working for 84 Lumber Company.  To help alleviate his lingering neuropathic pain without relying on narcotics, Watson enrolled in New Jersey’s medical marijuana program and sought reimbursement under 84 Lumber’s workers’ compensation insurance. 

Administrative Law Judge Ingrid L. French ruled that 84 Lumber’s insurance carrier, Gallagher Bassett Services, must pay for the injured worker’s medical marijuana because it is “reasonable and necessary” to treat his ongoing pain. “The evidence presented in these proceedings show that the petitioner’s ‘trial’ use of medicinal marijuana has been successful,” Judge French explained in her opinion. “While the court is sensitive to the controversy surrounding the medicinal use of marijuana, whether or not it should be prescribed for a patient in a state where it is legal to prescribe it is a medical decision that is within the boundaries and laws in the state.

Implications for New Jersey Employers and Workers

As New Jersey works to expand its medical marijuana program, the tension between state and federal cannabis law will continue to give rise to new and complex labor and employment, health care, and business issues.  Scarinci Hollenbeck will continue to track updates on this matter.

If you have any questions, please contact us

If you have any questions or if you would like to discuss the matter further, please contact me, Dan McKillop, at 201-806-3364.

This article is a part of a series pertaining to cannabis legalization in New Jersey and the United States at large. Prior articles in this series are below:

Disclaimer: Possession, use, distribution, and/or sale of cannabis is a Federal crime and is subject to related Federal policy. Legal advice provided by Scarinci Hollenbeck, LLC is designed to counsel clients regarding the validity, scope, meaning, and application of existing and/or proposed cannabis law. Scarinci Hollenbeck, LLC will not provide assistance in circumventing Federal or state cannabis law or policy, and advice provided by our office should not be construed as such.

No Aspect of the advertisement has been approved by the Supreme Court. Results may vary depending on your particular facts and legal circumstances.

Scarinci Hollenbeck, LLC, LLC

Related Posts

See all
IP Infringement: What Steps Can You Take If You're Affected? post image

IP Infringement: What Steps Can You Take If You're Affected?

IP infringement occurs when someone uses your intellectual property without your permission or beyond the scope of the permission you granted. Common examples of IP infringement include copying a product’s patented features or using a trademarked logo in a way that is likely to confuse consumers about the source or affiliation of goods or services. […]

Author: Michael Mietlicki

Link to post with title - "IP Infringement: What Steps Can You Take If You're Affected?"
Public Allegations, Unfinished Investigation: What New Jersey Businesses Should Do Next post image

Public Allegations, Unfinished Investigation: What New Jersey Businesses Should Do Next

When facing public allegations of wrongdoing, companies should not let the speed of the public conversation dictate the speed of an investigation. An investigation designed to confirm a preferred narrative rather than establish the facts can create serious problems later, particularly if litigation, regulatory scrutiny, or employment claims follow. Key Takeaways When public allegations surface […]

Author: Sean M. Pena

Link to post with title - "Public Allegations, Unfinished Investigation: What New Jersey Businesses Should Do Next"
BESS Interconnection: Managing Grid, Cost, and Schedule Risk post image

BESS Interconnection: Managing Grid, Cost, and Schedule Risk

For battery energy storage system (BESS) developers, securing equipment and site control is only part of the development equation. A project must also connect to the electric grid, and increasingly, BESS interconnection is one of the biggest sources of schedule, cost, and contractual risk. Key Takeaways This article is Part 3 of our Battery Storage […]

Author: Nicholas Wall

Link to post with title - "BESS Interconnection: Managing Grid, Cost, and Schedule Risk"
Navigating Director and Officer Liability in Times of Financial Distress post image

Navigating Director and Officer Liability in Times of Financial Distress

Director and officer liability increases sharply when a company is in financial distress. Decisions that would draw little attention in a healthy business can later be challenged by creditors, shareholders, bankruptcy trustees, and regulators as breaches of fiduciary duty, fraudulent transfers, or oversight failures. Understanding where that exposure comes from, and how to manage it, […]

Author: Michael Mietlicki

Link to post with title - "Navigating Director and Officer Liability in Times of Financial Distress"
Before You Buy: Managing Real Estate and Permitting Risk for BESS Projects in New York and New Jersey post image

Before You Buy: Managing Real Estate and Permitting Risk for BESS Projects in New York and New Jersey

For developers pursuing battery energy storage system (BESS) projects, finding the right property is only the beginning. BESS site selection is as much a legal and transactional exercise as a real estate decision, with risk analysis central to the project’s ultimate success. Key Takeaways The core questions for BESS site selection in New York and […]

Author: Nicholas Wall

Link to post with title - "Before You Buy: Managing Real Estate and Permitting Risk for BESS Projects in New York and New Jersey"
What Business Owners Get Wrong Before Meeting a Litigation Attorney post image

What Business Owners Get Wrong Before Meeting a Litigation Attorney

What should you expect when meeting a litigation attorney about a business dispute? You should expect to describe the dispute in your own words, hand over the most important documents, flag any deadlines or immediate threats, and leave with a clearer picture of the problem, what information is still needed, and the likely next steps. […]

Author: Michael Mietlicki

Link to post with title - "What Business Owners Get Wrong Before Meeting a Litigation Attorney"

No Aspect of the advertisement has been approved by the Supreme Court. Results may vary depending on your particular facts and legal circumstances.

Sign up to get the latest from our attorneys!

Explore What Matters Most to You.

Consider subscribing to our Firm Insights mailing list by clicking the button below so you can keep up to date with the firm`s latest articles covering various legal topics.

Stay informed and inspired with the latest updates, insights, and events from Scarinci Hollenbeck. Our resource library provides valuable content across a range of categories to keep you connected and ahead of the curve.

Let`s get in touch!

* The use of the Internet or this form for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be sent through this form. By providing a telephone number and submitting this form you are consenting to be contacted by SMS text message. Message & data rates may apply. Message frequency may vary. You can reply STOP to opt-out of further messaging.
“If you would like to submit a file, please email it directly to info@sh-law.com.

Sign up to get the latest from the Scarinci Hollenbeck, LLC attorneys!