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Hager v. M&K Construction

Superior Court of New Jersey, Appellate Division

January 13, 2020

VINCENT HAGER, Petitioner-Respondent/ Cross-Appellant,
v.
M&K CONSTRUCTION, Respondent-Appellant/ Cross-Respondent.

          Argued October 29, 2019

          On appeal from the New Jersey Department of Labor and Workforce Development, Division of Workers' Compensation, Claim Petition No. 2002-3715.

          Matthew Gitterman argued the cause for appellant/cross-respondent (Biacamano & DiStefano, attorneys; James E. Santomauro, on the briefs).

          Victor B. Matthews argued the cause for respondent/cross-appellant.

          Before Judges Yannotti, Currier and Firko.

          OPINION

          CURRIER, J.A.D.

         In this case of first impression, we consider whether a workers' compensation judge can order an employer to reimburse its employee for the employee's use of medical marijuana prescribed for chronic pain following a work-related accident. Respondent M&K Construction argues that the federal Controlled Substances Act (CSA), 21 U.S.C. § 841, which makes it a crime to manufacture, possess or distribute marijuana, preempts the New Jersey Compassionate Use Medical Marijuana Act (MMA)[1] because it is impossible to comply with both statutes.

         M&K further contends the order violates the CSA because it requires the employer to aid and abet petitioner's possession of an illegal substance. M&K also asserts it should be treated similarly to a private health insurer, which is not required under the MMA to cover the costs of medical marijuana. Lastly, M&K contends the judge erred in failing to consider whether medical marijuana is a reasonable and necessary form of treatment under the Workers' Compensation Act (WCA), N.J.S.A. 34:15-1 to -146.

         In a cross-appeal, petitioner argues the judge of compensation erred in not finding he has a 100% total and permanent disability.

         Because we conclude the order does not require M&K to possess, manufacture or distribute marijuana, but only to reimburse petitioner for his purchase of medical marijuana, we discern no conflict between the CSA and MMA. Furthermore, M&K's compliance with the order does not establish the specific intent element of an aiding and abetting offense under federal law. We also conclude M&K is not a private health insurer. Therefore, it is not excluded under the MMA from reimbursing the costs of medical marijuana.

         Here, where petitioner has demonstrated the severity and chronic nature of his pain, his attempts to unsuccessfully alleviate the pain with multiple surgeries and medical modalities, and the validated efficacy of the prescribed medical marijuana, we find the use of medical marijuana is reasonable and necessary. Finding no legislative or legal barrier to an employer's reimbursement of its employee's expense for medical marijuana in a workers' compensation setting, we affirm the order.

         We also affirm the cross-appeal, deferring to the compensation judge's award of permanent partial disability of 65% of partial total.

         I.

         A.

         In 2001, petitioner, then twenty-eight years old, was employed by M&K and working on a construction site, when a truck delivering concrete dumped its load onto him. M&K denied petitioner's workers' compensation claim, stating it was investigating the matter. Fifteen years later, when the trial began in November 2016, M&K stipulated petitioner had sustained a compensable accident.

         Following the accident, petitioner immediately experienced lower back pain that radiated down both legs, describing it as a "shooting and stabbing pain[]." He sought care with a chiropractor, who referred him for diagnostic testing. An MRI revealed a "large L5-S1 central disc herniation causing central canal stenosis" and "annular disc bulging at L4-5." Petitioner was instructed to see a neurosurgeon.

         Petitioner initially used his private health insurance to pay for medical treatment to his back. However, in December 2001, when his pain prevented him from working, he left his employment with M&K, and his health insurance terminated in January 2002.[2] Thereafter, he could not afford the recommended diagnostic testing and treatment.

         When M&K and its insurer continued to deny compensation benefits, petitioner retained counsel who referred him to a neurosurgeon, William Klempner, M.D. After petitioner was admitted to the emergency room in November 2003 with severe pain, Dr. Klempner performed a laminectomy and decompression of several nerve roots in petitioner's lumbar spine; petitioner mistakenly believed the medical expenses would be paid by M&K's workers' compensation carrier.

         The surgery was unsuccessful in relieving petitioner's pain. In September 2004, after an EMG revealed extensive nerve damage to the lower extremities, Dr. Klempner recommended a spinal fusion. However, due to another medical condition, petitioner could not undergo the procedure.

         When petitioner was able to resume treatment in September 2006, he consulted with Ari Ben-Yishay, M.D., a spinal surgeon, who recommended a two-level lumbar fusion. However, petitioner could not afford to pay out-of-pocket for the recommended surgery. Physicians within Dr. Ben-Yishay's practice prescribed Oxycodone.

         In 2008, petitioner sought the care of another pain management doctor, Nicholas Leggiero, M.D. Petitioner paid the doctor's bills; Medicaid covered the costs of the medication.[3] Dr. Leggiero initially prescribed a regimen of opioid medications, but when petitioner's pain did not abate, Dr. Leggiero referred him to Michael Nosko, M.D., a neurosurgeon. Dr. Nosko performed a two-level lumbar fusion in September 2011. Following the surgery, petitioner wore a back brace for a year and underwent physical therapy. Medicaid paid for the surgical expenses.

         This surgery was also unsuccessful in alleviating petitioner's pain, and Dr. Leggiero again prescribed opioids. Petitioner testified he was prescribed Oxycontin, Oxycodone, Valium, Lyrica, and other pain medications. In November 2015, Dr. Leggiero advised that petitioner suffered from "chronic debilitating pain." He stated further that "[i]t is highly unlikely that his condition could improve and unlikely that he will be able to return to work in any capacity in the future. His now long-term use of opiate medications has most likely caused hyperalgesia[4] and dependency that is unlikely to respond to other treatments."

         B.

         Petitioner was treating with Joseph Liotta, M.D., a board-certified hospice and palliative care physician, when his case went to trial in November 2016.[5] Dr. Liotta is certified by the State of New Jersey to prescribe medical marijuana.

         When Dr. Liotta first saw petitioner in April 2016, he diagnosed him as suffering from post-laminectomy syndrome with chronic pain as the result of spinal nerve injury. Petitioner was also experiencing side effects from his use of Oxycodone. The doctor testified that petitioner wanted "to come off the opioids, but then the pain w[ould] becom[e] too strong, so he was looking for an alternative to the opioids."

         Dr. Liotta determined that petitioner was a candidate for the medical marijuana program due to his "intractable muscular skeletal spasticity, [and] chronic pain," and the doctor provided all the required documentation for petitioner's enrollment into the program. He detailed at trial the extensive registration process a patient undergoes to obtain medical marijuana. After petitioner was approved for the program in April 2016, Dr. Liotta provided him with a prescription for medical marijuana.

         During a follow-up appointment in May 2016, petitioner told Dr. Liotta that the medical marijuana had provided some relief from his incessant pain, he was sleeping better, and he had stopped taking Oxycodone. In the visits leading to trial, petitioner advised the doctor the medical marijuana was "controlling" his pain.

         At trial, petitioner stated the medical marijuana treatment has given him some relief from pain. He stated:

The pain is never going to go away, but [the treatment] helps to take the edge off the pain. It helps when the muscles spasm, and they lock up, it helps to relax those muscles. So simply put, it reduces the pain, and it takes the edge off the pain.

         Petitioner continues to treat his pain with the prescribed two ounces of medical marijuana per month. He pays $616 a month out-of-pocket for the prescription. Dr. Liotta testified that petitioner will need medicine to manage his pain "for the rest of his life."

         During his testimony, Dr. Liotta described the effects of marijuana in comparison to opioids. He stated that the long-term effects of marijuana are some memory loss, losing "emotional highs and lows[, ]"[6] and potential lung damage from smoking the drug. Conversely, the long-term use of opioids can cause flash pulmonary edema, fatal arrhythmia, persistent itching, a higher risk of addiction, constipation, hemorrhoids, and fissures.

         Dr. Liotta depicted the chemical addiction to marijuana as "very weak" and "not nearly as potent as the chemical addiction to opioids." He also described the difficulty in withdrawing from opioids, stating "you can die from [it]. . . ." He agreed that over time both marijuana and opioids can become less effective in relieving pain as a patient becomes more tolerant of the substances.

         After several days of trial, M&K reached an agreement with petitioner regarding medical bills, reimbursement for out-of-pocket medical expenses, temporary disability benefits, and third-party lien credits. The issues remaining for the compensation judge's determination were the award of permanent disability and future medical treatment.

         Petitioner presented Cary Skolnick, M.D., as an expert witness in the field of orthopedic surgery. Dr. Skolnick diagnosed petitioner with post-laminectomy syndrome and opined his injuries were directly and causally related to his accident at work. The expert corroborated that petitioner's symptoms were consistent with the diagnosis and he would require long-term pain management. He concluded petitioner was "totally and permanently disabled as a functioning unit attributable to his orthopedic condition ...


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