Freehold Twp. Insurer Told To Cover Worker's Medical Marijuana

FREEHOLD TOWNSHIP, NJ — The worker's compensation insurer for Freehold Township has been ordered to pay for the medical marijuana prescription of an Ocean County man who was injured on the job while working for the township.

Judge Lionel Simon of the New Jersey Department of Labor's Division of Workers' Compensation, ordered the prescription coverage for Steven McNeary in late June, according to a copy of the order that originally was published by open government advocate John Paff. McNeary had been on opioid pain management previously, according to the hearing transcript.

It appears to be the first time a public employer in New Jersey has been ordered to cover a prescription for the drug under workers compensation. A private company, 84 Lumber, was ordered in December 2016 to cover the medical marijuana prescription for man injured on the job at the company's Pleasantville location.

"Quite frankly, I think it's time for us, as the Division of Compensation, to try to get away from these opioids," Simon said in ordering PMA Group, the workers compensation carrier for Freehold Township, to cover the costs of the medical prescription. "They are killing people."

McNeary, of Toms River, suffered three work-related injuries in his position with the Freehold Township public works department, his attorney, Leonard Weiss, said Wednesday. Two of the injuries — in 2007 and 2008 — were to his back, while the third, in 2013 was to his neck and resulted in McNeary having to have neck vertebrae fused, Weiss said.

"He's had back surgeries and cervical fusion," Weiss said, and McNeary suffers from chronic pain. The pain had been treated with opioids but between the side effects and the addiction risk, he sought pain management through medical marijuana under New Jersey's medical marijuana program, which is one of the most strict in the country.

"My client just doesn't want to be on opioids," Weiss said.

McNeary was being treated by the doctors chosen by PMA Group, Weiss said. The orthopedic doctor and the pain management specialist signed off on McNeary's request to have his pain treated with the medical marijuana in the spring of 2017, and he was accepted into the state's medical marijuana program.

But PMA balked at covering the prescription, citing concerns that it or the township, which is self-insured, could be somehow charged with violating federal law, since marijuana remains on the Drug Enforcement Agency's list of banned substances.

"I would not recommend to an entity (in this case Freehold Township) that they violate federal law," James Supple, the attorney for PMA, said during the hearing before Simon. Supple cited a Maine workers compensation case where the judges ruled an insurer paying for medical marijuana could be seen as "aiding and abetting" the violation of federal drug laws.

Simon agreed there is a conflict between New Jersey's medical marijuana law and federal law — a situation exacerbated by threats from U.S. Attorney General Jeff Sessions to more strictly enforce the laws with regard to marijuana as a pushback against states that have legalized the use of the drug.

But Simon, a former prosecutor, said in his view the intent of federal law was to curtail the distribution of illicit substances because of their connection to crime.

"I don't think the New Jersey Medical Marijuana Act is in conflict with that," Simon said, according to the hearing transcript. "I honestly don't feel in my heart of hearts that this is a conflict. Certainly I don't understand how a carrier, who will never possess, never distribute, never intend to distribute these products, who will (merely) sign a check into an attorney's trust account, is in any way complicit with the distribution of illicit narcotics."

"This Court is very aware of ... 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," he said. "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."

Simon also noted that medical marijuana is less expensive than opioids.

It was unclear whether PMA planned to appeal he ruling, though Simon said he would welcome a decision from the New Jersey Appellate Court to set a precedent. Workers compensation court rulings do not carry the weight of court rulings at the appellate level.

At the time of the 84 Lumber case, John J. Sarno, president and general counsel for the Employers Association of New Jersey, told NJ.com he believed an appeal was unlikely in that case because it would be "extraordinarily expensive to litigate."

"An appeal would raise complex, conflict of law issues between state and federal government," Sarno told NJ.com, and the number of employees this was likely to affect was minimal because of New Jersey's medical marijuana program is so strict.

Weiss said McNeary, who paid for the initial 90-day supply of medical marijuana out of pocket and was to be reimbursed under Simon's ruling, has told Weiss the medical marijuana has improved his quality of life.

"He said to me 'this is the first time in years I can sleep at night,' " Weiss said of McNeary, who told him he also no longer feels groggy all the time. "I feel so much better. So much more like myself," Weiss said McNeary has told him.

"I hope that if there are other workers who are injured on the job and workers compensation carriers reluctant to provide benefits, maybe it can convince another workers compensation judge to order benefits," Weiss said.

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