The Legal Landscape of Cannabis

The Maine Supreme Court, in a 5-2 decision, recently held the Maine Workers Compensation Board’s Order directing an employer to reimburse an injured worker for expenses associated with obtaining medical marijuana was in violation of Federal law, namely the Controlled Substances Act (CSA).

In Bourgoin v. Twin Rivers Paper Co., LLC, 2018 ME 77, the injured employee sustained a back injury in the course and scope of his employment with Twin Rivers in 1989.  The injury rendered him totally disabled.  Mr. Bourgoin developed a chronic pain syndrome that was treated with opioid medications.  Mr. Bourgoin’s primary care physician recommended he discontinue the use of narcotic medications due to adverse side effects.  He was recommended and began using medical marijuana to manage the chronic pain pursuant to the Maine Medical Use of Marijuana Act (MMUMA).  Mr. Bourgoin petitioned the Maine Workers Compensation Board for an Order compelling his former employer and its third party administrator to reimburse him for the cost of medical marijuana.  Twin Rivers opposed the petition on multiple grounds including an argument that an Order for reimbursement of expenses to secure medical marijuana was barred by the CSA even if his use of medical marijuana were permitted by the MMUMA.  The Board ordered reimbursement for medical marijuana and the matter was appealed and affirmed in the Appellate Division.

Twin Rivers appealed to the Maine Supreme Court.

The Maine Supreme Court concluded that requiring an employer to subsidize an injured employee’s acquisition of medical marijuana violated the Supremacy Clause as it creates a “positive conflict” between federal and state law. As such, Federal law supersedes and the lower court’s order for reimbursement of medical marijuana expenses was vacated as a violation of the CSA.  The CSA addresses federal preemption of conflicting state laws by mandating preemption if there is a “positive conflict” between the CSA and the state law so that the two cannot consistently stand together.

The CSA classifies marijuana as a Schedule I drug which, as determined by Congress, has a high potential for abuse, does not have a currently acceptable medical use for treatment, and poses unacceptable safety risks even under medical supervision. The Schedule I classification makes it a federal crime to knowingly and intentionally “manufacture, distribute, or dispense, or possess with intent to manufacture, distribute or dispense” marijuana. Furthermore, federal prosecution may be directed against a “principal” who aids and abets in the commission of a federal crime.

According to the Maine Supreme Court, “…were Twin Rivers to comply with the administrative order by subsidizing Bourgoin’s use of medical marijuana, it would be engaging in conduct that meets all of the elements of criminal aiding and abetting…” The Court concluded that a person’s state right to use medical marijuana “cannot be used as a sword that would require another party, such as Twin Rivers, to engage in conduct that would violate the CSA.”

The majority opinion ultimately reached the following conclusion:

“…[s]o long as marijuana remains a Schedule I substance under the CSA,…an employer that is ordered to compensate an employee for medical marijuana costs is thereby required to commit a federal crime defined by the CSA.”

In New Jersey, the Compassionate Use of Medical Marijuana Act (CUMMA) governs the medicinal use of marijuana (N.J.S.A. § 24:6i-1 et seq). Specifically, CUMMA states medical marijuana may be prescribed for the treatment of “debilitating medical conditions” as defined in N.J.S.A. § 24:6i-2. In order to even be eligible for medicinal marijuana, a patient must “qualify” as a resident of the State of New Jersey that receives a certification for medicinal marijuana by a physician pursuant to a bona fide physician-patient relationship. Id.

As it relates to Workers Compensation, the New Jersey Statute provides: “The employer shall furnish to the injured worker such medical, surgical and other treatment, and hospital service as shall be necessary to cure and relieve the worker of the effects of the injury and to restore the functions of the injured member or organ where such restoration is possible.” N.J.S.A. § 34:15-15.  In Watson v. 84 Lumber, the Judge of Compensation relied on the diagnosis and opinions of an authorized pain management specialist, describing a “neuropathic and complex regional pain syndrome of the left hand” and stated:

“While the Court is sensitive to the controversy surrounding the medicinal use of marijuana, whether or not it should be prescribed for a patient in a  state where it is legal to prescribe it, is a medical decision that is within the bounds of the laws in the State of New Jersey.” Watson v. 84 Lumber (CP No 2009-15740, Div. Work. Comp. Dec. 15, 2016).

The Judge of Compensation determined the injured worker was clearly an appropriate candidate for medical marijuana based on credible evidence and concluded it was “reasonable and necessary for the relief of the intractable neuropathic pain caused by his work-related injury.” There have been varying decisions rendered in other jurisdictions:

  • New Mexico – Lewis v. American General Media (2015-NMCA-090, ¶ 3, 355 P.3d 850, 852)
    • Injured employee suffered a compensable injury to her back, underwent spinal surgery and had taken numerous other pain management drugs, all of which only provided transient relief. The Court determined that certification forms submitted by two different doctors describing the benefits of medical marijuana as opposed to Lewis’ current treatment were persuasive and described the certification forms as substantial evidence to support the contention medicinal marijuana was reasonable and necessary medical care. The Compensation Court further highlighted the fact traditional narcotic medications had failed and it was reasonable to replace some of those narcotic medications with medical marijuana.
  • Vermont – Michael Hall (06-18WC, 2018 WL 1802814, at *13 (Vt. Dept. Lab. Ind. Mar. 28, 2018)
    • The court held the employer was not required to reimburse expenses for medical marijuana.
    • The Vermont Worker’s Compensation statute explicitly states that medical marijuana costs are not required to be reimbursed and while employers are certainly free to choose to reimburse petitioners for their medical marijuana costs, they cannot be required to do so due to the conflicting Controlled Substances Act.
  • New York – Employer: Our Lady of Victory Homes, G085 6772, 2018 WL 2752819, at *2 (N.Y.        Work. Comp. Bd. June 4, 2018)
    • The New York Worker’s Compensation Board held an employer could be compelled to provide reimbursements for medical marijuana costs. The Board’s rationale focused on the broad and liberal construction of the Act in favor of the injured employee, designed to provide for “other attendance or treatment.”

Despite the liberal interpretation of the New Jersey Workers Compensation Act, the CSA and Supremacy Clause still looms over any State legislation or Judge of Compensation’s decision to Order medicinal marijuana. These are just some of the types of issues surrounding Cannabis as it relates to Workers Compensation and Employment Law that our firm has been dealing with on behalf of clients.

By: Eric E. Fingerman, Esquire and Kathleen E. Dohn, Esquire
Associates at Brown & Connery, LLP