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Professional Liability

What's Hot in Workers' Comp

Special Workers' Compensation Alert - New Jersey

Hager v. M&K Construction

April 13, 2021

by Kristy Olivo Salvitti

The New Jersey Supreme Court issued a unanimous decision today in Hager v. M&K Construction. The decision affirms a lower court ruling requiring an employer to reimburse a petitioner for the costs of medical marijuana prescribed as treatment for a work injury. The court shot down all arguments and found the following:

  • Medical marijuana is a reasonable and necessary treatment under the New Jersey workers' compensation statute;
  • There is no preemption under the Supremacy Clause as there is no positive conflict between the New Jersey’s Jake Honig Compassionate Use Medical Cannabis Act and the Federal Controlled Substance Act (CSA);
  • Employers do not face a credible threat of federal prosecution for either aiding, abetting or conspiracy;
  • Congress has deprioritized prosecution for possession of medical marijuana under the most recent federal Appropriations Act by prohibiting the Department of Justice from using allocated funds to prevent states from implementing their medical marijuana laws; and 
  • Workers' compensation is not a “private health insurer” under the reimbursement exception (N.J.S.A 34:6I-14). 

This decision marks the second state Supreme Court to address the preemption argument. In Bourgoin v. Twin Rivers Paper Co., LLC, 2018 ME 77 (2018), Maine’s Supreme Court reversed a lower court's decision, finding that to comply with a court order to reimburse for medical marijuana would be to engage in criminal “aiding and abetting” conduct under the CSA as Twin Rivers Paper Co. would knowingly be subsidizing Bourgoin’s purchase of marijuana.

Now that there are conflicting state Supreme Courts, could the next question be, “Will the U.S. Supreme Court weigh in?” 

 

What's Hot in Workers' Comp is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. We would be pleased to provide such legal assistance as you require on these and other subjects when called upon. ATTORNEY ADVERTISING pursuant to New York RPC 7.1 Copyright © 2020 Marshall Dennehey Warner Coleman & Goggin, all rights reserved. No part of this publication may be reprinted without the express written permission of our firm. For reprints or inquiries, or if you wish to be removed from this mailing list, contact tamontemuro@mdwcg.com.

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