Cottell: Proposed Cannabis Bill Raises Serious Legal Issues

Friday, March 18, 2022 | 0

The New Jersey Assembly recently introduced legislation, A3511, which would force every workers’ compensation, personal injury insurer and health insurance carrier writing insurance in New Jersey to provide coverage for medical cannabis. This legislation overreaches into the contractual bargaining between consumers and insurance companies and will no doubt drive premium costs higher.

Jennifer A. Cottell

The legislation appears to be an attempt to codify and expand on the ruling in Hager v. M&K Construction.

Readers may recall that a near-identical bill, A1708, was passed by the New Jersey Assembly Appropriations Committee on Oct. 26, 2020, while Hager was slated to be heard by the Supreme Court of New Jersey. Thereafter, the Supreme Court in Hager affirmed the Appellate Division decision to require the workers’ compensation carrier to provide medical marijuana as a reasonable and necessary medical treatment under the facts of that particular case.  

If this new bill is passed, employers and their carriers must include coverage for medical use of cannabis, the use and sale of which is currently prohibited under federal law. The relevant portion of the proposed bill reads, “Notwithstanding the provisions of subsection a. of this section, an employer or workers’ compensation insurance carrier or private passenger automobile insurance carrier shall provide coverage for costs associated with the medical use of cannabis.” 

The bill is puzzling because it presupposes that the use of medical marijuana is a common and historically accepted type of medical treatment when in fact it remains highly controversial. Many pain medicine doctors still have reservations about using medical marijuana as a safe alternative to other more historical treatments. Some do not believe that there is sufficient proof that the use of medical marijuana reduces dependency on opiates. That was an important fact in the Hager case because Mr. Hager testified that marijuana helped him wean off opiates.

Even if this bill should be enacted, defense counsel will still raise the issue in individual cases whether the use of medical marijuana is “reasonable and necessary,” cornerstone language from NJSA 35:15-15. Physician discretion in evaluating the reasonableness of medical treatment is crucial, given that two injured workers can have the same injury, but one may require different treatment to restore the function of the body.

Enacting a law that requires carriers to include coverage for a controversial medical treatment will not only increase insurance costs for all employers and taxpayers, it will also likely lead to further litigation.

Jennifer A. Cottell is an attorney and shareholder with Capehart Scatchard, a defense law firm in New Jersey. This post appears with permission from the New Jersey Workers' Comp Blog.