VINCENT HAGER VS. M&K CONSTRUCTION (DIVISION OF WORKERS' COMPENSATION)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0102-18T3
VINCENT HAGER,
Petitioner-Respondent/ APPROVED FOR PUBLICATION
Cross-Appellant,
January 13, 2020
v. APPELLATE DIVISION
M&K CONSTRUCTION,
Respondent-Appellant/
Cross-Respondent.
Argued October 29, 2019 – Decided January 13, 2020
Before Judges Yannotti, Currier and Firko.
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.
The opinion of the court was delivered by
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, whic h 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.
1
N.J.S.A. 24:6I-1 to -29. In July 2019, the title of the Act was amended to
the "Jake Honig Compassionate Use Medical Cannabis Act."
A-0102-18T3
2
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
A-0102-18T3
3
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
2
After the accident, petitioner continued to work at M&K on light duty. He
was unable to work in any capacity after December 2001 due to his pain.
A-0102-18T3
4
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
3
Petitioner was approved for supplemental social security income benefits in
December 2005, entitling him to medical benefits through Medicaid.
A-0102-18T3
5
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
4
Hyperalgesia is defined as "excessive sensitivity to pain." See Hyperalgesia,
The Free Dictionary, https://medical-dictionary.thefreedictionary.com/hypera-
lgesia (last visited Dec. 12, 2019)
A-0102-18T3
6
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 extensiv e
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
5
The trial occurred over seven days between November 2016 and March
2018.
A-0102-18T3
7
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.
6
This condition is Anhedonia, which is defined as the "inability to enjoy what
is usually pleasurable." See Anhedonia, The Free Dictionary, https://medical-
dictionary.thefreedictionary.com/anhedonia (last visited Dec. 13, 2019).
A-0102-18T3
8
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 and
opioid addiction as well as the medical marijuana," with a "65% of partial total
relative to the lumbar spine."
A-0102-18T3
9
M&K also presented an orthopedic surgeon – Gregory Gallick, M.D.
Dr. Gallick testified that petitioner had "a decreased range of motion in his
back, as what you would expect to see in an otherwise healthy 40-year-old
individual." He found that petitioner could "work in a store," do "light
activities," or drive a car or truck if he wished to do so. Dr. Gallick opined
that petitioner had a 12.5% permanent partial disability related to his
orthopedic injury. He advised he had no expertise concerning the use of
medical marijuana.
M&K also produced Robert Brady, D.O., a pain management doctor.
Although Dr. Brady is certified to prescribe medical marijuana in New Jersey,
he has not done so for any of his patients. However, he conceded he has
patients who are using medical marijuana for chronic back pain, and they have
told him it provides them relief.
Dr. Brady was also asked about the effects of opioids versus medical
marijuana. He explained that users of medical marijuana can experience
"cognitive difficulties, problem solving cognition, short term memory loss, . . .
hallucinations," an exacerbation of schizophrenia, "emphysema, COPD, [7]
7
Chronic Obstructive Pulmonary Disease (COPD) is a term used for a group
of lung diseases that block the airways and make breathing more difficult. See
Chronic Obstructive Pulmonary Disease, The Free Dictionary, http://medical-
A-0102-18T3
10
[and] lung cancer." As for opioids, Dr. Brady said a person could experience
"addiction, tolerance, overdose, death, constipation, depression, [and] sexual
dysfunction."
Dr. Brady agreed that both substances were physically addictive,
marijuana less so than opioids, and both were psychologically addictive. The
doctor testified further that he believed petitioner was addicted to opioids, and
it was also possible he was addicted to marijuana because he "relie[d] on the
medication." Dr. Brady concluded that petitioner should not be treated with
medical marijuana because the literature did not show it was helpful to people
with non-malignant back pain. He believed the only recommended course of
treatment for petitioner was physical therapy. In response to the judge's
question as to what petitioner could do about his pain, Dr. Brady responded:
"Unfortunately, sometimes people have pain."
During the trial, petitioner described his chronic pain. He stated the pain
starts in his lower back and radiates down both legs. He has constant pain in
his back and his entire left leg to his toes. The pain also radiates down his
right leg to just below the buttocks. Petitioner stated the intensity of t he pain
varied from a dull aching pain to a sharp stabbing pain from his lower back to
dictionary.thefreedictionary.com/Chronic+Obstructive+Pulmonary+Disease
(last visited Dec. 12, 2019).
A-0102-18T3
11
his toes. Petitioner described the pain as affecting "every activity of his daily
life." He was only able to stand for a half hour to an hour at a time. His pain
was slightly lessened by lying down. He was unable to work and lived with
his parents.
C.
On July 26, 2018, the judge of compensation issued a written decision,
finding: 1) the present condition of petitioner's lumbar spine and all
consequences related to it were causally related to his accident at work; and 2)
petitioner exhibited permanent partial total disability of 65%, with 50%
attributed to his orthopedic condition and 15% attributed to the effects of
medical marijuana. The judge ordered M&K to reimburse petitioner for the
costs of medical marijuana and any related expenses. A July 30, 2018 order
memorialized the opinion.
The judge found petitioner to be credible and noted all of the experts
agreed that he suffered from chronic non-malignant back pain. He rejected Dr.
Brady's position that petitioner should "simply deal with his pain," finding that
contention "unacceptable as inhumane and contrary to the law concerning [an
employer's] obligation to treat."
A-0102-18T3
12
Because the experts agreed there were only two treatment options to
alleviate petitioner's pain – opioids or marijuana – the compensation judge
turned to a comparison of the therapies:
There is no real disagreement among the experts
concerning the side effects and risks attendant to those
two modalities. . . . Dr. Brady and Dr. Liotta agree
that opioids cause significant adverse consequences,
including the risk of death. They both agree that
opioids are significantly more physically addicting
than marijuana, although both modalities are
psychologically addict[ing]. . . . This [c]ourt
concludes that, if the only choice for [petitioner] is
between opioids and marijuana, then marijuana is the
clearly indicated option. Both modalities present
significant downsides in terms of adverse
consequences and risks, but a comparison leads
inescapably to a conclusion that marijuana is the
appropriate option. This [c]ourt finds credible the
testimony of [p]etitioner and Dr. Liotta that the pain
mitigation effect is equal at this time and finds the
testimony of Dr. Brady lacking in credibility and
rather disingenuous.
The judge noted Dr. Leggiero's determination in 2015 that petitioner was
addicted to opioids and unlikely to recover. However, through the medical
marijuana program, petitioner was able to improve his condition and had been
opioid-free for several years. Therefore, the judge concluded the benefits of
medical marijuana were superior to the use of opioids and the use of medical
marijuana was in petitioner's best interests. Dr. Liotta was designated as the
authorized treating physician "with the authority to incorporate such additional
A-0102-18T3
13
treatment modalities as may be necessary and in the best interests of
[p]etitioner."
II.
Our review of an order of a judge of compensation is limited to
determining "whether the findings . . . could reasonably have been reached on
sufficient credible evidence present in the whole record, after giving due
weight to [the judge's] expertise in the field and [his or her] opportunity of
hearing and seeing the witnesses." De Angelo v. Alsan Masons, Inc., 122 N.J.
14Super. 88, 89-90 (App. Div. 1973) (citing Jackson v. Concord Co., 54 N.J.
113, 117-18 (1969); Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)). Our
review of a judge's interpretation of an issue of law is de novo. Manalapan
Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995) (citing
State v. Brown, 118 N.J. 595, 604 (1990)).
A.
We begin our analysis by addressing M&K's argument that the CSA
preempts the MMA because it is impossible to simultaneously comply with
both statutes. To do so, we provide some background.
A-0102-18T3
14
Under federal law, marijuana 8 is a Schedule I controlled substance. See
21 U.S.C. § 812(c), Schedule I(c)(10); 21 C.F.R. § 1308.11, Schedule I(d)(23),
(31). The CSA, passed in 1970, placed marijuana in Schedule I, the most
restrictive of categories, defining it as a drug with a high potential for abuse,
no currently accepted medical use for treatment, and lacking acceptable safety
uses even under medical supervision. 21 U.S.C. § 812(b)(1).
Because of its classification as a Schedule I drug, "the manufacture,
distribution, or possession of marijuana [is] a criminal offense, with the sole
exception being use of the drug as part of a Food and Drug Administration pre -
approved research study." Gonzales v. Raich, 545 U.S. 1, 14 (2005) (citations
omitted). The production or distribution of marijuana is a felony offense under
federal law. See 21 U.S.C. § 841. 9
8
It is spelled "Marihuana" under the statute.
9
In contrast, opioids are a Schedule II substance under the CSA and are
considered an accepted medical use in treatment in the United States; see also
21 U.S.C. § 812. U.S. Drug Enforcement Agency, Drug Scheduling,
https://www.dea.gov/drug-scheduling (last visited Dec. 12, 2019).
A-0102-18T3
15
In 2010, New Jersey enacted the MMA which decriminalized the
possession of a certain amount of marijuana for medical use by qualifying
patients. N.J.S.A. 24:6I-6.10 In doing so, the Legislature found that:
a. Modern medical research has discovered a
beneficial use for cannabis in treating or alleviating
the pain or other symptoms associated with certain
medical conditions, as found by the National Academy
of Sciences' Institute of Medicine in March 1999.
b. According to the U.S. Sentencing Commission and
the Federal Bureau of Investigation, 99 out of every
100 cannabis arrests in the country are made under
state law, rather than under federal law.
Consequently, changing state law will have the
practical effect of protecting from arrest the vast
majority of seriously ill people who have a medical
need to use cannabis.
c. Although federal law currently prohibits the use of
cannabis, the laws of [twenty-seven states], and the
District of Columbia permit the use of cannabis for
medical purposes, . . . . New Jersey joins this effort
for the health and welfare of its citizens.
d. States 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.
e. Compassion dictates that a distinction be made
between medical and non-medical uses of cannabis.
10
A "qualified patient" is "a resident of [New Jersey] who has been authorized
for the medical use of cannabis by a health care practitioner." N.J.S.A. 24:6I-
3.
A-0102-18T3
16
Hence, the purpose of this act is to protect from arrest,
prosecution, property forfeiture, and criminal and
other penalties, those patients who use cannabis to
alleviate suffering from qualifying medical conditions,
as well as their health care practitioners, designated
caregivers, institutional caregivers, and those who are
authorized to produce cannabis for medical purposes.
[N.J.S.A. 24:6I-2.]
As stated, the MMA affords an affirmative defense to patients who are
properly registered under the statute but are nevertheless arrested and charged
with possession of marijuana. N.J.S.A. 2C:35-18. The MMA also shields
qualifying users of medical marijuana from civil penalties and other
administrative actions. N.J.S.A. 24:6I-6(b).
M&K asserts that the CSA preempts the MMA, and the compensation
judge's order violates the CSA. We look to the Supremacy Clause, U.S.
Const., art. VI, cl. 2, as the rule of decision guiding a court when federal and
state law are in conflict. Armstrong v. Exceptional Child Ctr., Inc., 575 U.S.
320, 324 (2015). The first step in the analysis, whether the federal law is a
valid exercise of power, is not challenged here.
The second step, "[w]hether a state law stands as an obstacle to the
accomplishment of a federal objective, requires a court to consider 'the
relationship between state and federal laws as they are interpreted and applied,
not merely as they are written.'" R.F. v. Abbott Labs., 162 N.J. 596, 618
A-0102-18T3
17
(2000) (quoting Jones v. Rath Packing Co., 430 U.S. 519, 526 (1977)).
"Determining whether federal law preempts state law is a fact-sensitive
endeavor, based on a court's review of 'fragments of statutory language,
random statements in the legislative history, and the degree of detail of the
federal regulation.'" Id. at 619 (citing Erwin Chemerinsky, Constitutional
Law: Principles and Policies, § 5.2 (1st ed. 1997)). Preemption "is not to be
lightly presumed." Ibid. (quoting Turner v. First Union Nat'l Bank, 162 N.J.
75, 87 (1999)).
State law is preempted by federal law under three circumstances:
express, field, and conflict preemption. It is conflict preemption that is at
issue here. Under 21 U.S.C. § 903, Congress expressed its intention regarding
the consequence of any conflict between the CSA and a state law. The statute
provides that the CSA's preemption is restricted to circumstances where "there
is a positive conflict between" a provision of Title 21 and a state law "so that
the two cannot consistently stand together." 21 U.S.C. § 903. Therefore,
Congress instructs that conflict preemption is the appropriate measurement.
Conflict preemption applies when "it is impossible for a private party to
comply with both state and federal requirements, or where state law 'stands as
an obstacle to the accomplishment and execution of the full purposes and
objectives of Congress.'" English v. Gen. Elec. Co., 496 U.S. 72, 79 (1990)
A-0102-18T3
18
(first citing Fla. Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-43
(1963); and then quoting Hines v. Davidowitz, 312 U.S. 52, 67 (1941)). We,
therefore, must determine whether an order by a compensation judge to
reimburse a user of medical marijuana can comply with both federal and state
law, here the CSA and MMA. If an eligible patient can comply with both the
CSA's prohibition of the manufacture, possession or distribution of marijuana,
and the MMA's decriminalization of the possession of marijuana for medical
use, there is no "positive conflict" that triggers preemption. Beek v. City of
Wyo., 846 N.W.2d 531, 537-38 (Mich. 2014).
B.
The issue of whether the MMA is preempted by the CSA in the context
of a workers' compensation case has not been addressed by any New Jersey
state court. Of the thirty-three states 11 that have legalized medical marijuana,
only New Mexico and Maine have considered whether their medical marijuana
legislation is preempted by the CSA. See Lewis v. Am. Gen. Media, 355 P.3d
850, 858 (N.M. Ct. App. 2015) (finding New Mexico's medical marijuana act
11
The District of Columbia, Guam and Puerto Rico have also enacted
compassionate use of medical marijuana use legislation. Allison N. Zsamba,
Cannabis Tax Plans: Consideration for New Jersey's Future, N.J. Law., Dec.
2019, at 43 n.2. Fifteen states and the District of Columbia have
decriminalized the possession of a certain amount of marijuana; eleven states
and the District of Columbia have legalized recreational marijuana. Id. at 43
n.2-3.
A-0102-18T3
19
was not preempted by the CSA); Vialpando v. Ben's Auto. Servs., 331 P.3d
975, 976 (N.M. Ct. App. 2014) (same); but see Bourgoin v. Twin Rivers Paper
Co., 187 A.3d 10, 12 (Me. 2018) (determining that Maine's medical marijuana
act was preempted by the CSA).
In enacting the MMA, "the Legislature expressed its intent to steer clear
of such a conflict, declaring that 'compliance with this act does not put the
State of New Jersey in violation of federal law.'" Kadonsky v. Lee, 452 N.J.
Super. 198, 215 (App. Div. 2017) (quoting N.J.S.A. 24:6I-2(d)). Despite that
intention, M&K contends it is physically impossible for an employer to
comply with both the CSA and MMA, therefore the MMA is preempted under
a conflict analysis. We disagree.
As stated, Congress has expressed its intent in the plain language of the
CSA that it only preempts a state law that requires the performance of an
action specifically forbidden by the federal statute. 21 U.S.C. § 903. A
hypothetical conflict does not suffice to satisfy conflict preemption. See
Solorzano v. Superior Court, 13 Cal. Rptr. 2d 161, 169 (Cal. Ct. App. 1992)
(stating that "mere speculation about a hypothetical conflict is not the stuff of
which preemption is made.").
Under the CSA, the possession, manufacture, and distribution of
marijuana is a criminal and punishable offense. But an employer's
A-0102-18T3
20
reimbursement of a registered MMA patient's use of medical marijuana does
not require the employer to commit those offenses.
The MMA also does not prohibit punishment for those offenses under
federal law. Instead, the MMA accords limited state-law immunity from
"arrest, prosecution, . . . and criminal and other penalties" to individuals who
utilize medical marijuana in compliance with the Act. N.J.S.A. 24:6I-2(e).
This immunity does not prohibit the federal government from criminalizing or
punishing that conduct. Nor does the MMA bar federal regulation and
enforcement. See United States v. Hicks, 722 F. Supp. 2d 829, 833 (E.D.
Mich. 2010) ("It is indisputable that state medical-marijuana laws do not, and
cannot, super[s]ede federal laws that criminalize the possession of marijuana.")
(citing Raich, 545 U.S. at 29).
The MMA does not require an employer to possess, manufacture or
distribute marijuana – the actions proscribed by the CSA. Because it is not
physically impossible to comply with the CSA and the MMA, there is no
positive conflict between these laws.
M&K also asserts that the CSA preempts the MMA because it would be
aiding and abetting petitioner in the commission of a crime, the possession of
marijuana, if it reimbursed him for medical marijuana as ordered by the
compensation judge. We are not persuaded.
A-0102-18T3
21
Under 18 U.S.C. § 2(a), "[w]hoever . . . aids, abets, counsels, commands,
induces or procures [the] commission [of a crime] is punishable as a
principal." The statute does not establish a separate crime but merely
eliminates "the common law distinction between principal and accessory."
United States v. Langston, 970 F.2d 692, 705-06 (10th Cir. 1992) (citing
United States v. Smith, 838 F.2d 436, 441 (10th Cir. 1988)).
To obtain a conviction on an aiding and abetting theory, the government
must prove a defendant: "[(1)] in some sort associate himself with the venture,
[(2)] that he participate in it as in something that he wishes to bring about,
[and (3)] that he seek by his action to make it succeed." Nye & Nissen Corp.
v. United States, 336 U.S. 613, 619 (1949) (quoting United States v. Peoni,
100 F.2d 401, 402 (2d Cir. 1938)).
Under the circumstances presented here, M&K is not an active
participant in the commission of a crime. The employer would be complying
with an order requiring it to reimburse a person for the legal use of medical
marijuana under this state's law. M&K has not established the requisite intent
and active participation necessary for an aiding and abetting charge.
We further note that "one cannot aid and abet a completed crime."
United States v. Ledezma, 26 F.3d 636, 642 (6th Cir. 1994) (citing Roberts v.
United States, 416 F.2d 1216, 1221 (5th Cir. 1969)). Here, M&K is not
A-0102-18T3
22
purchasing or distributing the medical marijuana on behalf of petitioner; it is
only reimbursing him for his legal use of the substance. In addition, petitioner
has obtained the medical marijuana before M&K reimburses him. M&K is
never in possession of the marijuana. Therefore, the federal offense of
purchasing, possessing or distributing has already occurred. M&K cannot abet
the completed crime. The compensation judge's order directing an employer t o
reimburse its employee for the use of prescribed and regulated medical
marijuana is not prohibited under a federal preemption argument.
C.
We also address M&K's argument that compliance with the order
exposes it to the threat of federal prosecution for aiding and abetting petitioner
in the possession of marijuana. In considering this argument, we first note that
"[t]he case for federal pre-emption is particularly weak where Congress has
indicated its awareness of the operation of state law in a field of federal
interest, and has nonetheless decided to 'stand by both concepts and to tolerate
whatever tension there is between them.'" Bonito Boats, Inc. v. Thunder Craft
Boats, Inc., 489 U.S. 141, 166-67 (1989) (alteration omitted) (quoting
Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 256 (1984)). Here, there is
evidence of tolerance from the federal government of state-legislated medical
marijuana.
A-0102-18T3
23
Since December 2014, "congressional appropriations riders have
prohibited the use of any [Department of Justice] funds that prevent states with
medical marijuana programs . . . from implementing their state medical
marijuana laws." United States v. Kleinman, 880 F.3d 1020, 1027 (9th Cir.
2018) (citing Consolidated and Further Continuing Appropriations Act, 2015,
Pub. L. No. 113-235, § 538, 128 Stat. 2130, 2217 (2014); Consolidated
Appropriations Act, 2016, Pub. L. No. 114-13, § 542, 129 Stat. 2242, 2332-33
(2015); Consolidated Appropriations Act, 2017, Pub. L. No. 115-31, § 537,
131 Stat. 135, 228 (2017)). The funding prohibition remains in effect. See
Consolidated Appropriations Act, 2019, Pub. L. No. 116-6, § 537, 133 Stat.
13, 138 (2019).
M&K has presented no evidence that it faces a credible threat of
prosecution. Despite the enactment of medical marijuana legislation by the
majority of states, M&K could not apprise this court of any federal prosecution
against an employer or insurance carrier for its reimbursement of authorized
medical marijuana treatment. As stated above, a speculative argument cannot
support a finding of conflict preemption. See Thomas v. Anchorage Equal
Rights Comm'n, 220 F.3d 1134, 1137 (9th Cir. 2000) (stating if no
enforcement action or prosecution is threatened or imminent, the dispute is
premature); Sibley v. Obama, 819 F. Supp. 2d 45, 49-50 (D.D.C. 2011)
A-0102-18T3
24
(determining a plaintiff who asserted he risked prosecution under the CSA did
not have standing because the deputy attorney general's memorandum did not
establish a threat of prosecution for marijuana-related offenses was credible,
actual, immediate, or even specific to the plaintiff); State v. Okun, 296 P.3d
998, 1002 (Ariz. App. 2013) (refusing to address whether the CSA preempts
Arizona's medical marijuana act under an impossibility analysis because no
actual or threatened prosecution existed).
III.
A.
Having found no positive conflict between the CSA and MMA, we
consider M&K's additional arguments. First, M&K argues a workers'
compensation insurer should be treated the same under the MMA as a private
health insurer, which may not be required to cover the costs of medical
marijuana. We disagree.
N.J.S.A. 24:6I-14 states: "Nothing in [the MMA] shall be construed to
require a government medical assistance program or private health insurer to
reimburse a person for costs associated with the medical use of cannabis, . . . ."
The statute does not define "private health insurer." However, under Title 17,
in defining "health insurance," the Legislature expressly stated that "[h]ealth
insurance does not include workmen's compensation coverage[]." N.J.S.A.
A-0102-18T3
25
17B:17-4. We presume the Legislature is aware of its own enactments in
passing a law. In re Petition for Referendum on City of Trenton Ordinance 09-
02, 201 N.J. 349, 359 (2010).
Here, New Jersey has only designated two categories of entities that may
not be required to reimburse the costs of medical marijuana: government
medical assistance programs or private health insurers. N.J.S.A. 24:6I-14.
The use of "or" between the subjects indicates the Legislature's intent to
provide an exhaustive list of third parties exempt from reimbursement. See
O'Connell v. State, 171 N.J. 484, 488 (2002) (quoting Hubbard v. Reed, 168
N.J. 387, 392 (2001); State v. Butler, 89 N.J. 220, 226 (1982)). If the
Legislature wished to relieve workers' compensation insurers from any
obligation to pay the costs of medical marijuana, it would have done so.
B.
Lastly, M&K argues the judge of compensation erred in failing to
consider whether medical marijuana can be a reasonable and necessary form of
treatment under the WCA because it is illegal under the CSA; and the judge
failed to consider alternative legal modalities of treatment. Again, we
disagree.
Under the WCA, an employer must provide a worker injured in the
course of employment with medical treatment and services necessary "to cure
A-0102-18T3
26
and relieve the worker of the effects of the injury and to restore the functions
of the injured member or organ" if possible. N.J.S.A. 34:15-15. The WCA is
to be liberally construed in favor of employees. Squeo v. Comfort Control
Corp., 99 N.J. 588, 599 (1985).
"If the workers' compensation court finds the injury compensable and the
medical services reasonable and necessary, the employer is responsible for the
expenses incurred by the employee for the treatment of the injury." Univ. of
Mass. Mem'l Med. Ctr., Inc. v. Christodoulou, 180 N.J. 334, 345 (2004) (citing
N.J.S.A. 34:15-15). The expense must be "shown to be reasonable and
necessary by sufficient competent medical evidence." Squeo, 99 N.J. at 599.
"[I]n determining what is reasonable and necessary, the touchstone is not
the injured worker's desires or what he thinks to be most beneficial. Rather, it
is what is shown by sufficient competent evidence to be reasonable and
necessary to cure and relieve him." Id. at 606. The "claimant bears the burden
. . . to establish his claim." Id. at 599 (citing Kahle v. Plochman, 85 N.J. 539,
548 (1981)).
Here, petitioner testified extensively about his pain, stating he continued
to suffer from pain in his lower back that goes down both legs. He described
the pain as "an electric switch." Petitioner also explained how the pain limits
his activities, testifying "the more I move the more it hurts." He stated he had
A-0102-18T3
27
"trouble sitting and standing for any period[] of time" and "[b]ending is very
painful."
Severe or chronic pain is considered a qualifying medical condition
under the MMA, and is an eligible condition authorized for the treatment of
medical marijuana. See N.J.S.A. 24:6I-3. During the trial, petitioner
described how medical marijuana helped with his symptoms. He stated that it
"take[s] the edge off the pain," and relaxed his muscles, alleviating the muscle
spasms.
Moreover, petitioner supported his account of chronic pain with
"competent medical testimony . . . ." Squeo, 99 N.J. at 599 (quoting Howard
v. Harwood's Rest. Co., 25 N.J. 72, 93 (1957)). Drs. Liotta and Skolnick
testified that petitioner suffered from "post laminectomy syndrome," describ ed
by Dr. Liotta as "where [a person] get[s] chronic pain from nerves being
injured in the spine as they exit the spine, and the bones need . . . [to] be
stabilized by hardware. . . ." Dr. Liotta advised that the pain was
"irreversible," and petitioner would need to manage his pain "for the rest of his
life." Dr. Skolnick agreed that petitioner would require "long-term pain
management." We are satisfied that under the circumstances of this petition,
the use of medical marijuana was reasonable and necessary for the treatment of
petitioner's chronic pain.
A-0102-18T3
28
Both Dr. Liotta and Dr. Brady addressed the different side effects of
medical marijuana and opioids. The doctors agreed that the treatment of pain
with opioids carried a risk of death, and that opioids were significantly more
addictive than marijuana. The compensation judge considered both treatment
methods and concluded that medical marijuana was the "clearly indicated
option." It is evident the judge weighed the alternative legal modalities of
treatment available to petitioner.
IV.
New Jersey has expressed its clear public policy towards the use of
medical marijuana in the MMA. The statute notes the medical research
demonstrating the beneficial use of marijuana to alleviate the pain and
symptoms of certain medical conditions, including severe or chronic pain.
N.J.S.A. 24:6I-2 to -3. Conversely, the federal attitude towards marijuana is
equivocal. M&K has not demonstrated any intention by the federal
government to enforce the CSA in any state that has decriminalized medical
marijuana.
For over eighteen years, petitioner has endured chronic disabling pain
resulting from a work-related injury. He has undergone multiple unsuccessful
lumbar surgeries and pursued all recommended modalities of treatment –
nothing relieved his pain. Petitioner and Dr. Liotta testified as to the
A-0102-18T3
29
beneficial effects medical marijuana can achieve for chronic pain and
specifically for petitioner's pain level. Its use has also allowed petitioner to
cease using opioids. That achievement, by itself, in light of the opioid crisis in
existence today, should suffice as a rationale for the reimbursement of medical
marijuana.
To deprive petitioner of the only relief from the constant pain he has
experienced for almost twenty years would eviscerate the principles and goals
of the WCA and MMA. As M&K has not presented this court with any
concrete legal or legislative grounds upon which to overturn the compensation
judge's order, we affirm the order for reimbursement of petitioner's use of
medical marijuana.
V.
In his cross-appeal, petitioner asserts the compensation judge should
have concluded he was permanently and totally disabled in light of his
inability to work due to the combined effects of his chronic pain and ongoing
need for treatment. Because of the deference accorded to a compensation
judge's findings, we affirm.
In finding petitioner had a 65% permanent partial total disability, the
compensation judge found it was "constrained by the fact that no expert
opine[d] that [petitioner] [wa]s presently totally disabled." Although init ially
A-0102-18T3
30
Dr. Skolnick testified petitioner was "100% totally and permanently disabled,"
he later stated that if petitioner could wean himself off opioids, "[h]e might be
less than total." In addition, Dr. Skolnick's expert report opined that petitioner
had an estimated permanent orthopedic disability of 65% of partial total
relative to the lumbar spine.
"The compensation [judge] had the opportunity to evaluate [the]
witnesses' credibility." Ramos v. M & F Fashions, Inc., 154 N.J. 583, 598
(1998). The compensation judge also has "expertise with respect to weighing
the testimony of competing medical experts and appraising the validity of
[petitioner's] compensation claim." Ibid. (citing Lewicki v. N.J. Art Foundry,
88 N.J. 75, 89 (1981) (noting deference is entitled to compensation courts due
to their expertise)). The record demonstrates sufficient credible evidence
supported the finding of permanent partial disability.
Affirmed.
A-0102-18T3
31