October 29, 2019
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).
B. Matthews argued the cause for respondent/cross-appellant.
Judges Yannotti, Currier and Firko.
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) because it is impossible to
comply with both statutes.
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
cross-appeal, petitioner argues the judge of compensation
erred in not finding he has a 100% total and permanent
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.
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.
affirm the cross-appeal, deferring to the compensation
judge's award of permanent partial disability of 65% of
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.
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
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. Thereafter, he could not afford the
recommended diagnostic testing and treatment.
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.
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.
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
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. 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.
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 and dependency that is unlikely to
respond to other treatments."
was treating with Joseph Liotta, M.D., a board-certified
hospice and palliative care physician, when his case went to
trial in November 2016. Dr. Liotta is certified by the State of
New Jersey to prescribe medical marijuana.
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."
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.
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.
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
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."
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[, ]" 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.
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.
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.
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 ...