On December 15, 2016, a decision following trial in New Jersey was handed down on the question of whether medical marijuana can be ordered under workers' compensation. Petitioner Andrew Watson worked for 84 Lumber and was injured on November 6, 2008. He received an award of one third of partial total in 2012 apportioned 50% of the hand and 12.5% for complex regional pain syndrome (CRPS). The terms of the settlement required respondent to approve ongoing pain management treatment with Dr. Peter Corda. Petitioner received prescriptions on a monthly basis, including 120 Endocet/Oxycodone tablets as well as other pain medications such as Ibuprofen 800mg and lidocaine patches.
In late 2013 petitioner consulted with Dr. Corda about participating in New Jersey's medicinal marijuana program (MMP). Dr. Corda referred petitioner to his partner, Dr. Jeffrey Drew Polcer, who possessed the required credentials to do medical marijuana evaluations. Petitioner saw Dr. Polcer and complained of burning pain and swelling in his left hand with extreme sensitivity to light touch. He said that his narcotic medications were not providing him with sufficient relief. Petitioner admitted to Dr. Polcer that he had experimented with marijuana and obtained a significant reduction in pain.
Dr. Polcer diagnosed petitioner with neuropathic and complex regional pain syndrome of the left hand and recommended petitioner for medicinal marijuana. He noted that neuropathic pain is one of the better indications for medicinal marijuana. He further said that if successful with medicinal marijuana, petitioner should lower his use of narcotics.
The New Jersey Department of Health issued an Attending Physician Statement to the Petitioner which authorized petitioner to register for the MMP and purchase one ounce of marijuana per month for three consecutive months. Petitioner received his Patient Registration Card and then used the card to purchase medicinal marijuana at authorized dispensaries, making his first purchase on March 28, 2014. Petitioner submitted the invoices and proof of cash payments to the respondent's carrier for reimbursement, but the carrier denied reimbursement.
Petitioner filed an Emergent Motion to Enforce the terms of the Order Approving Settlement from 2012. The respondent disputed Dr. Corda's referral to his partner and contended Dr. Polcer was not an authorized physician. Respondent also withdrew authorization of Dr. Corda in favor of Dr. Morris Antebi, who was asked to perform an IME of petitioner.
The Judge of Compensation, the Honorable Ingrid L. French, A.S.J.W.C., preliminarily entered an order requiring respondent to reinstate authorization of Dr. Peter Corda for pain management. Trial then ensued on the central issue regarding medical marijuana as curative treatment.
Drs. Corda and Polcer refused to testify at trial because they had ongoing business relationships with the respondent's third party administrator. Instead, petitioner offered the testimony of Dr. Edward Tobe, Board Certified in Neurology and Psychiatry. Respondent had petitioner examined by Dr. Morris Antebi, whose report supported the position of respondent. However, Dr. Antebi also refused to testify and therefore his report was excluded from evidence. Respondent tried to offer into evidence three explanatory letters written by Dr. Corda to the third party administrator in response to a request for explanation on his initial referral and Dr. Polcer's recommendations. These three letters were written subsequent to Dr. Corda's initial referral to Dr. Polcer for the MMP and tended to undercut Dr. Corda's initial position in the case, but the trial judge would not allow these reports to go into evidence without Dr. Corda's testimony, which he refused to provide.
Dr. Tobe testified that Dr. Polcer's plan to begin a course of medicinal marijuana was medically appropriate. He added that this plan made particular sense since it would lead to a reduction in the use of opiates. Dr. Tobe discussed the risks in using Percocet (oxycodone) in respect to kidney and liver function. He said narcotics impact alertness, concentration, memory, and cognitive function, potentially causing emotional detachment. In addition, possible side effects are loss of teeth, blurred vision, constipation, urinary retention and cardiac problems.
Concerning medical marijuana, Dr. Tobe said that the medicinal version is not tainted with contaminants that street marijuana might contain. He said that one is less likely to have cravings with the medicinal product. He did not agree that medicinal marijuana is a gateway drug, although he did admit that marijuana can have similar side effects as opiates in respect to withdrawal, impaired concentration and loss of memory. In his view, medicinal marijuana offers promising prospects as a pain management modality.
Based primarily on the testimony of Dr. Tobe, Judge French found that petitioner's trial use of medical marijuana was medically warranted. She concluded, “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 of New Jersey. In this case, there is no dispute that all of the credible evidence presented confirms that this Petitioner is an appropriate candidate for New Jersey's medical marijuana program.”
An equally significant aspect of this case had to do with respondent's challenge to the referral by Dr. Corda to Dr. Polcer. The judge focused on the issue of whether a respondent has a right to object to a referral from the authorized doctor to another physician. “Whether it is a second opinion directed by a Respondent/Carrier or a referral to an alternative specialty directed by an authorized doctor, this Court interprets the statutory language as requiring an analysis that focuses on whether the referral is in the best interest of the injured worker.”
The Court acknowledged that Dr. Corda failed to discuss his recommendation of Dr. Polcer with the respondent/carrier or obtain pre-approval for the referral. “Medical experts must be given sufficient latitude in directing the care of an injured worker. Here, the Court will not allow the respondent to deny authorization of a treatment, which has now proven to be beneficial to the Petitioner, simply because the doctor did not allow the Respondent an opportunity to second guess his medical opinion.”
The Judge entered an order requiring respondent to pay for the costs of the medical marijuana program and prescriptions and ordered respondent to authorize either Dr. Corda (who since became licensed to participate in the MMP) or Dr. Polcer for petitioner's ongoing participation in New Jersey's MMP.
This case is not binding on other courts because it is a Division level decision. Nonetheless, this decision will be studied by other judges and practitioners given that there are few trial decisions in New Jersey on the use of medicinal marijuana for workers' compensation treatment. Respondent could not prevail in this case because defense counsel never offered any expert testimony to rebut the opinions of Dr. Tobe. The failure to produce expert testimony put respondent at an impossible disadvantage and all but guaranteed that Dr. Tobe's testimony would carry the day on the issue of the reasonableness and necessity of medical marijuana. Based on the evidence presented, the Judge of Compensation made the only decision she could make. The most compelling evidence in favor of petitioner was that the use of medical marijuana would decrease the use of narcotics.
This case is also extremely useful in dealing with an often litigated issue of whether respondent is bound by a referral from the authorized doctor to another physician. The 2012 court order in this case only referred to treatment by Dr. Corda. Interestingly, the Court did not focus on the basic rule of agency, namely that a principal is bound by the actions of his or her agent. Rather, the Court addressed the rule in Benson v. Coca Cola to the effect that the Court can make a retroactive analysis of the alleged “unauthorized treatment” to determine whether the treatment should be ordered. The rule under Benson is that if the treatment proves helpful, that fact would strongly favor a conclusion that respondent must pay for it. In this case, the only evidence presented at trial (Dr. Tobe's testimony) supported petitioner's position that medical marijuana helped relieve petitioner's pain levels.
Practitioners who are interested in this case can email the undersigned for a copy of the opinion.
John H. Geaney, Esq., is an Executive Committee Member and a Shareholder in Capehart Scatchard's Workers' Compensation Group. Mr. Geaney concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers' compensation, the Americans with Disabilities Act and Family and Medical Leave Act. Should you have any questions or would like more information, please contact Mr. Geaney at 856.914.2063 or by e?mail at firstname.lastname@example.org.
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