In what could become a precedent-setting decision, a New Jersey administrative law judge has ordered an insurance company to pay for medical marijuana for an injured worker who suffers from lingering neuropathic pain in his left hand after an accident while using a power saw at an 84 Lumber outlet in 2008.
Judge Ingrid L. French took testimony from the worker, a 39-year-old Egg Harbor Township man, and a Cherry Hill psychiatrist/neurologist who said the marijuana treatment was appropriate because it would allow the patient to reduce his prescription opiate use and lower the risk of serious side effects.
Andrew Watson was seeking reimbursement for marijuana he had purchased at a dispensary in his Atlantic County township over three months in 2014 after enrolling in the state's program. He also sought a ruling that would allow him to be covered for the treatment in the future.
French issued her opinion last month, saying "the evidence presented in these proceedings show that the petitioner's 'trial' use of medicinal marijuana has been successful. 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 boundaries of the laws in the state."
The opinion did not state the reimbursement owed Watson, although his attorney said the marijuana itself cost less than $1,000 because it was only three ounces.
John Gearney, a Mount Laurel lawyer who writes a weekly blog on workers' compensation cases, says the written ruling may be the first in New Jersey to address whether an insurer should pay for marijuana. "It's not binding, but it's really an important decision. There are about 50 workers' compensation judges in the state, and they will read it and see what the judge thought when a case like it comes before them," he said.
Gearney, of the Capehart Scatchard firm, said the only other court ruling he had heard of involving medical marijuana and workers' compensation came when a New Mexico appeals court decided a few years ago that an injured worker was entitled to marijuana treatment.
In that case, the court ruled that marijuana was "reasonable and necessary" for an injured worker who had reported that traditional treatments had not alleviated his pain.
John Carvelli, a Mount Laurel lawyer who represented Gallagher Bassett Services, a third-party administrator for 84 Lumber's insurance company, said in an email Thursday: "With respect to the recent decision, we respect the court's decision. . . . At this juncture there is no plan to appeal."
Gallagher Bassett had argued that Watson's ailment did not qualify for medical marijuana under the state program and that Watson had received a recommendation to use marijuana from a doctor who was not his treating physician. French, however, found that Watson's ailment - intractable neuropathic pain - falls under the list of qualifying conditions and that the prescribing doctor was a partner of the treating physician and eligible to assess Watson's condition.
Philip Faccenda, a Cherry Hill lawyer who represented Watson, said the decision might benefit insurance companies, too. "We believe this will offer very powerful cost savings with respect to the entire workers' compensation industry in New Jersey. . . . More costly pharmaceuticals can be reduced and medical marijuana would be a less expensive treatment modality," he said.
Faccenda said that his client stopped using marijuana in 2014 because he could not afford to continue paying for it. The insurance carrier continued to pay for his use of opiates to treat his pain. The decision means Watson can resume using marijuana, he said.
Watson could not be reached for comment.
French wrote in her eight-page decision that Watson's testimony was credible. "He testified that the effects of the marijuana, in many ways, is not as debilitating as the effects of the Percocet (which is how he refers to his prescriptions for Endocet or Oxycodone). . . . Ultimately, the petitioner was able to reduce his use of oral narcotic medication. . . . The court found the petitioner's approach to his pain management needs has been cautious, mature, and overall, he is exceptionally conscientious in managing his pain."
French also wrote that Watson's expert witness, Cherry Hill psychiatrist Edward H. Tobe, described the benefits Watson can obtain by using marijuana and also described the risks of taking opiates. "Opiates can shut down breathing (whereas) marijuana cannabinoids won't . . . Marijuana does not affect the mid-brain. The mid-brain is critical in controlling respiration, heart rate, many of the life-preserving elements," he said, according to an excerpt of his testimony that was included in the judge's opinion.
Tobe said using marijuana, combined with less opiate use, would likely benefit Watson and help him "achieve better function." French said the evidence convinced her that Watson was entitled to participate in the marijuana program and that doing so was "reasonable and necessary" to relieve his continuing pain.
By Jan Hefler - The Philadelphia Inquirer (Philly News)/Jan.6, 2017
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NJ Judge to Injured, Weed-Using Employee's Insurer: You Pay for His Pot