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 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.