Citing a need to stop "killing people" by forcing injured people to take opioids for their pain, a New Jersey Workers' Compensation Judge ordered Freehold Township (Monmouth County) to pay for a municipal employee's medical marijuana.
According to a transcript of a June 28, 2018 hearing before Workers' Compensation Judge Lionel Simon, Freehold Township employee Steven McNeary filed an application to compel the Township to pay for medical marijuana used to treat his muscular spasticity. Both the Township's and its insurer's attorneys, James Supple and Christine Shea, respectively, agreed that McNeary had fully complied with the state's Compassionate Use Medical Marijuana Act and was eligible to receive medical marijuana.
At issue was whether marijuana' illegality under the federal Controlled Substance Act precluded Judge Simon from using New Jersey's Medical Marijuana Act as a predicate for compelling Freehold to pay for McNeary's medical marijuana. During the hearing, Judge Simon referred to the Maine Supreme Court's June 14, 2018 ruling in Bourgoin v. Twin Rivers Paper Co., Docket No. WCB-16-433 (2018 WL 2976309) which held, in a 5 to 2 decision, that federal law controlled and that any employer who paid for an employee's medical marijuana would be "aiding and abetting" a violation of federal law.
Accordingly, the Maine court ruled that Maine's Medical Use of Marijuana Act "cannot create a state right to commit a federal crime" and therefore cannot compel an employer to pay for an employee's medical marijuana. McNeary's attorney, Leonard D. Weiss of Metuchen, argued that New Jersey's Compassionate Use Medical Marijuana Act provides that "[s]tates are not required to enforce federal law or prosecute people for engaging in activities prohibited by federal law; therefore, compliance with this act does not put the State of New Jersey in violation of federal law." Judge Simon rejected Weiss' argument, stating that "I don't buy that argument. . . I don't think that any New Jersey statute can say that [it] supersedes federal law."
Judge Simon, a former prosecutor, stated that while he is in full support of federal and state narcotics laws he didn't believe "in [his] heart of hearts" that an employer or its insurer who reimburses an employee for medical marijuana "is in any way complicit with the distribution of illicit narcotics." Judge Simon also noted that McNeary had "a documented medical need" for medical marijuana and expressed concern that he might become addicted to opioids if he did not received 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. If there's anything criminal here, it's how these drugs have been force fed to injured people creating addicts."
Judge Simon went on to state that "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."
Judge Simon said that he would "welcome" New Jersey's Appellate Division or Supreme Court to weigh in on this issue and recognized that he would be bound by those higher courts' rulings. "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. In the meantime, however, he believed that "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."
