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I had a recent discussion in relation to an upcoming COVID-19 webinar with former Supervising Judge of Compensation, Ray. A. Farrington, who sat in Hackensack, N.J. Judge Farrington raised an important question about what employers can do when employees ignore safety rules concerning COVID-19 in respect to both workers’ compensation and employment law.

Suppose an employer has a strict
requirement that an employee must wear a mask at work to protect the employee
and others.  Suppose further that one
employee repeatedly ignores the rule and eventually becomes sick with
coronavirus and then brings a workers’ compensation claim. Is there a valid defense
to the claim based on the employee’s willful failure wear his mask?

The answer is yes, if the
employer complied with the terms of N.J.S.A. 34:15-7.  That provision states that the
willful failure to make use of a reasonable and proper personal protective
device furnished by the employer is grounds for denial of the workers’
compensation claim if the employer has clearly made this a requirement of the
employment and has uniformly enforced this rule.  For this defense to work, the employer has to
properly document that despite repeated warnings, the employee willfully failed
to properly and effectively utilize the protective device, and that conduct led
to the work illness, in this case the virus.

A second question in this scenario is whether the employer can terminate someone who fails to utilize required protective devices.  As Judge Farrington posed the question: “Can the employer have a zero tolerance policy?”  For the answer we turn to Ralph Smith, Esq., Co-Chair of Capehart’s labor law department.  Ralph responded, “If you are a non-union employer, firing under a zero tolerance policy for a lack of mask use would no doubt be allowed because failing to follow such a directive would be insubordination, and insubordination is subject to discipline, including possible discharge.”  He added, “Progressive discipline would be unnecessary unless the employer has a policy where progression is required, though most employers carve out from progressive discipline serious workplace infractions.”  Ralph added that given the risks of COVID 19, not wearing a mask could have serious health consequences for others and should be considered a serious infraction.

The answer is more nuanced if
the employer is in a unionized setting. 
Ralph explained, “I would think that discipline would be an issue which
would have to be addressed with the union, it being considered a term and
condition of employment, but if you already have a CBA (Collective Bargaining
Agreement) with a progressive discipline policy, you would need to follow that
and likely would not be able to go directly to termination.” Ralph suggested
that in a union setting it would be wise to discuss the employer’s plans
involving mask usage with the union. He added, “Unions have the same safety
incentive as employers do, so I suspect the employer would not get very much
pushback on requiring mask usage and disciplining for non-use, short of
termination for a first violation.”

Finally, Ralph made an important point about reasonable accommodations. “In both union and non-union contexts, an employer might have to accommodate someone who refuses to wear a mask, or is unable to do so, because of health reasons.  This is an exception even under Governor Murphy’s Executive Orders.”  He added that the employer may need to address whatever the underlying disability is which precludes mask use just as the employer would for any disability.  The question becomes whether the employer can make adjustments that accommodate the health problem and still maintains a safe working environment.

Thanks to Judge Farrington and Ralph Smith, Esq. for their contributions to this blog.

The post Are There Workers’ Compensation And Employment Consequences For Failure To Use Protective Devices Required Under COVID-19 Policies? appeared first on NJ Workers' Comp Blog.

The New Jersey Workers’ Compensation court calendars were suspended March 17, 2020 through April 3, 2020.   On Monday, March 30, 2020, the Director of the Division of Workers’ Compensation, Hon. Russell Wojtenko, Jr. advised in a Notice to the Bar that a limited reopening will occur on Monday, April 6, 2020 to permit telephonic case conferences and settlements.

There are 15 vicinages in New Jersey for workers’ compensation hearings. One supervising judge from each district will be available to discuss certain cases telephonically.  The emphasis will be on emergent matters as well as settlements by affidavit, motions for medical and temporary disability benefits and certain pretrial conferences. 

In the March 30 Notice, the Director made clear that there will be no in-person workers’ compensation proceedings (except for extremely limited emergent matters and certain ongoing motions for medical and temporary benefits and trials in which social distancing will be enforced).

The Director’s Notice to the Bar emphasizes that the goal of the Division is to limit the exposure and spread of the COVID-19 coronavirus to court personnel, attorneys and their staff, as well as litigants, witnesses and members of the public.  The Notice observes that New Jersey workers’ compensation courts will continue to be closed to the public and to non-essential court personnel until April 13, 2020.

Employers, third party administrators, carriers and all practitioners should understand that time demands on the supervisory judge in each venue will be significant in attempting to cover multiple court lists each day.  Still this Notice is very positive news in that emergent matters and settlements by affidavit can now move forward.

The post New Jersey Workers’ Comp Courts Set for Limited Reopening April 6th appeared first on NJ Workers' Comp Blog.

This week the New Jersey Appellate Division decided Hager v. M&K Construction, A-0102-18T3 (App. Div. January 13, 2010).  The issues of whether an employer must reimburse an injured worker for the costs of medical marijuana and whether such a court order would violate federal law have been the source of much controversy in the Division.  Hager is the first published opinion in our state to address these issues.

The facts can be briefly summarized as follows:  petitioner, then 28-years-old, was injured in
2001 working on a construction site for M&K Construction when a truck
delivering concrete dumped its load onto him. 
M&K denied the claim and stated that it was investigating the
matter.  For reasons not made clear in
the reported decision, the trial did not begin in workers’ compensation until
15 years later in November 2016.   During
the course of the trial M&K stipulated that petitioner had sustained a
compensable accident. However, the employer opposed petitioner’s claim for
total and permanent disability and opposed petitioner’s request to reimburse
him for the cost of marijuana under the New Jersey Compassionate Use Medical
Marijuana Act (MMA).

During the many years since the date of injury, Mr. Hager endured chronic disabling pain and underwent multiple unsuccessful lumbar surgeries.  At trial he described his pain as starting in his lower back and radiating down his entire left leg to his toes.  He said that the pain affected every activity of his daily life and that he could only stand for a half hour to an hour at a time.  Lying down lessened the pain only marginally. He became dependent on the use of opiates.  He sought care with a chiropractor.  At various points over the years he was prescribed Oxycontin, Oxycodone, Valium, Lyrica and other pain medications. 

Petitioner saw Dr. Joseph Liotta in April 2016, who diagnosed him with post-laminectomy syndrome with chronic pain from a spinal nerve injury.  Petitioner was also experiencing side effects from his use of Oxycodone.  Dr. Liotta provided the required documentation for petitioner’s enrollment into the New Jersey MMA, providing him with a prescription for medical marijuana.  He opined at trial that petitioner will need marijuana to manage his pain for the rest of his life.  He also said that chemical addiction to marijuana is very weak compared to the more potent addiction to opioids, which can lead to death and many other severe side effects.

At trial petitioner testified that as a result of the use of
medical marijuana, he was able to stop taking Oxycodone.  He felt that it provided some relief from
incessant pain, and it helped him sleep better. He paid $616 per month
out-of-pocket for the prescription of two ounces of medical marijuana.  During trial, petitioner sought a court order
requiring M&K to reimburse him for the costs of the medical marijuana.  M&K argued that such an order would
violate federal law.

Three other medical experts testified at trial besides Dr.
Liotta.  Dr. Cary Skolnick testified for
petitioner and opined that petitioner was 100% totally and permanently disabled
as a functioning unit with a 65% permanent partial disability for the lumbar
spine.  Dr. Gregory Gallick testified for
respondent stating that petitioner, who was then in his 40s, could perform
light duty work or drive a car and was not totally disabled.  He opined that petitioner had a 12.5%
permanent partial disability.  

Dr. Brady, a pain medicine doctor, also testified for
respondent.  He is certified to prescribe
medical marijuana in New Jersey but has never done so thus far for any
patient.  He testified that users of
medical marijuana can experience “cognitive difficulties, problem solving
cognition, short term memory loss, . . . hallucinations,” as well as an
increased risk of lung cancer.  He
testified that users of opioids could experience “addiction, tolerance,
overdose, death, constipation, depression and sexual dysfunction.”  He said that marijuana is less addictive than
opioids, and he felt petitioner was addicted to opioids and may be addicted to
marijuana.  He felt that the use of
marijuana had not been shown in the literature to be helpful to people with
non-malignant back pain.  In his opinion,
the only measure petitioner could take for his back pain was physical therapy.

The Judge of Compensation ruled that petitioner was disabled
to the extent of 65% of partial total with 50% attributed to his orthopedic
condition and 15% attributed to the effects of medical marijuana.  The judge ordered M&K to reimburse
petitioner for the costs of medical marijuana and related expenses.  The judge was not persuaded by Dr. Brady’s
position that petitioner should “simply deal with his pain.”  The Judge commented that this position was “unacceptable as inhumane and contrary to the
law concerning an employer’s obligation to treat.”  The judge further noted that the only
treatment choices outlined by the experts were opioids and/or marijuana.  “This
Court concludes that, if the only choice for petitioner is between opioids and
marijuana, then marijuana is the clearly indicated option.  Both modalities present significant downsides
in terms of adverse consequences and risks, but a comparison leads inescapably
to a conclusion that marijuana is the appropriate option.”

Both sides appealed aspects of the decision.  Regarding the issues raised by M&K, the Appellate Division addressed five separate arguments:

1) Does the Controlled Substance Act (CSA) which makes it a crime to manufacture, possess or distribute marijuana, preempt the New Jersey MMA?

The Appellate Division disagreed with the employer’s argument
that it was impossible to comply with the MMA without violating the CSA.   The Court began by observing that the MMA
decriminalized the possession of a certain amount of marijuana for medical use.  One of the Act’s purposes was to protect from
arrest and criminal penalties those patients who use cannabis to alleviate
suffering.  The Court noted that the MMA
shields qualifying users of medical marijuana from civil penalties and provides
an affirmative defense to patients who are properly registered under the
statute but are nevertheless arrested and charged with possession of marijuana.

The Court reviewed two state decisions in New Mexico and
Maine dealing with the question of whether their medical marijuana legislation
was preempted by the CSA.  New Mexico
held it was not preempted, but Maine held that it was preempted.  The Appellate Division found that the CSA
only preempts a state law that requires the performance of an action
specifically forbidden by the federal statute. 
The CSA makes the possession, manufacture, and distribution of marijuana
a criminal offense, “But an employer’s
reimbursement of a registered MMA patient’s use of medical marijuana does not
require the employer to commit those offenses.”  The Court added:

The MMA does not require an employer to possess, manufacture or distribute marijuana – the actions proscribed by the CSA.  Because it is not physically impossible to comply with the CSA and the MMA, there is no positive conflict between the laws.

2) Does the MMA violate the CSA by aiding and abetting in the commission of a crime?

The Court considered the argument that the MMA puts M&K
in the position of aiding and abetting a crime. 
The Appellate Division gave this argument short shrift:

Under the circumstances presented here, M&K is not an active participant in the commission of a crime.  The employer would be complying with an order requiring it to reimburse a person for the legal use of medical marijuana under this state’s law. M&K has not established the requisite intent and active participation necessary for an aiding and abetting charge.

The Court also said that “one cannot aid and abet a completed crime.” Petitioner would have already obtained the medical marijuana before M&K would reimburse him.

3) Does compliance with the court order expose M&K to the threat of federal prosecution?

The Court addressed this argument by observing that there
has been tolerance from the federal government of state medical marijuana
laws.  Since December 2014,
“congressional appropriations riders have prohibited the use of any Department
of Justice funds that prevent states with medical marijuana programs . . . from
implementing their state medical marijuana laws.”  The Court said:  “Despite
the enactment of medical marijuana legislation by the majority of states,
M&K could not apprise this court of any federal prosecution against an
employer or insurance carrier for its reimbursement of authorized medical
marijuana treatment.”

4) Should a workers’ compensation insurer be treated the same under the MMA as a private health insurer?

N.J.S.A. 24:6I-14 states, “Nothing in the MMA shall be construed to require a government medical assistance program or private health insurer to reimburse a person for costs associated with the medical use of cannabis, …” The Appellate Division noted that under Title 17, in defining “health insurance,” the Legislature expressly stated that “health insurance does not include workers’ compensation coverage.” N.J.S.A. 17B: 17-4.  The Court said that only two categories of entities may not be required to reimburse the costs of medical marijuana:  a government medical assistance program or private health insurer.   In essence, the Court held that this argument failed because workers’ compensation is not considered under the law to be equivalent to a private health insurer.

5) Can medical marijuana be considered reasonable and necessary under the New Jersey Workers’ Compensation Act?

The Appellate Division considered a number of precedential cases that have liberally construed medical treatment that has helped patients cope with chronic pain.  In this case the Court observed that Dr. Liotta felt petitioner’s pain was irreversible and that he would need to manage pain for the rest of his life.  The Court concluded that the use of medical marijuana was reasonable and necessary for the treatment of petitioner’s chronic pain under the circumstances of this case.

The Hager case is now the leading case in the State of New Jersey on the issue of whether the MMA is preempted by the CSA and must be followed by judges in the Division of Workers’ Compensation.  If the employer seeks certification from the Supreme Court, it is highly likely that the Court will grant certification.

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