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Employment and The Use of Medical Marijuana

New Jersey’s medical marijuana program went into effect in 2007.  Since that time, more than 11,000 persons have been issued ID cards under The Compassionate Use Medical Marijuana Act (“Act’) permitting them to use medicinal marijuana and to obtain the drug at one of the state’s five (5) marijuana dispensaries.

One of the issues that has perplexed New Jersey employers since the time of the Act’s passage has been whether an employer can either fire, or refuse to hire, a medicinal marijuana user if the employer has a drug free workplace policy, or if hiring or continued employment would violate other commitments to provide a drug free workplace under related federal laws. This issue arises because the Act is silent as to whether medicinal marijuana users have job protection because of that status. While the Act states expressly that employers have no duty to accommodate the use of medical marijuana while on the job, the law also states very vaguely that users cannot be denied certain unspecified rights or privileges because of their user status. Because of this uncertainty, employees are now resorting to the courts to determine what their employment rights are under the Act, and New Jersey Courts are finally getting the chance to weigh in on this controversial issue.

In a recent decision issued by the New Jersey Federal Court in February, 2017, a wrongful discharge claim brought by a medicinal marijuana user was dismissed on the grounds that the complaint failed to state a legally cognizable claim under New Jersey state law.  In Barrett v. Robert Half Corporation, Civil Action No. 15-6245 (CCC), plaintiff was an accountant who also was a medical marijuana user.  He did so to relieve back pain suffered as a result of an auto accident.  Plaintiff was tested for drug use as part of the employer’s testing program and was subsequently terminated.  In filing his suit, the employee claimed that the New Jersey Law Against Discrimination was violated because the employer was notified that the plaintiff was in the medical marijuana program and therefore had a duty to accommodate the drug use as treatment for his back problem.  The court held that merely notifying an employer about an employee’s participation in the state medical marijuana program does not constitute a request for accommodation of the underlying condition that allows for the medicinal use of marijuana.  As a result, no accommodation duty was violated by the employer.

The Barrett case is one of a handful of cases that are now working their way through the New Jersey courts.  As more decisions are handed down, employers should have a better idea of what their rights and duties are in terms of addressing medicinal marijuana issues in the workplace.  As these cases are being processed through New Jersey’s courts, employers should also keep a close eye on what is similarly happening in the New Jersey legislature.  Proposed legislation now pending before both the Senate and Assembly would make it unlawful for an employer to take any adverse employment action against any employee enrolled in the New Jersey Medical Marijuana program.  Because of these continuing developments, employers facing issues with employee use of medical marijuana should seek sound legal advice whenever contemplating possible adverse employment action against such employees.

Appellate Division Finds Plaintiffs Fail to Meet Standard to File Late Notice of Tort Claim

By: Charles F. Holmgren, Esq. and Betsy G. Ramos, Esq.

To file a personal injury claim against a public entity, the Tort Claims Act requires that a plaintiff must file a notice of tort claim with that entity within 90 days of his/her accident. If no tort claim notice is filed within that time period, a claimant has up to one year to seek leave with the court to file a late notice of tort claim. However, the claimant must establish that extraordinary circumstances prevented his or her filing of this notice within that 90 day time period – which is a difficult standard to meet. In a case handled by our firm before the New Jersey Appellate Division, Silver v. Wang, 2017 N.J. Super. Unpub. LEXIS 441 (App. Div. Feb. 24, 2017), the Appellate Division ruled that even the death of the claimant is not an impediment to the court’s refusal to find extraordinary circumstances exist to relax the strict requirement of a timely filed notice of tort claim.

The accident in the Silver case occurred on April 11, 2014. There, Plaintiffs’ decedent Jennifer Peplinski died when her car swerved off of Route 130 in North Brunswick, New Jersey and struck a utility pole off the side of the road. On January 21, 2015, the Middlesex County Prosecutor’s Office and the North Brunswick Police Department issued an investigation report of the accident showing that Mrs. Peplinski’s car was struck by another vehicle that caused her to lose control of her car and strike the pole. On receipt of this report, Mrs. Peplinski’s adult children, the plaintiffs, met with an attorney on January 31, 2015, took steps to create an estate for her, and filed a motion for leave to file a late notice of tort claim. They argued that only when they received the report, well after the ninety day notice period, did they learn that that defendants Township of North Brunswick and the State of New Jersey could have been involved in their mother’s accident and, during that ninety day period, no estate existed in order to file a claim on their mother’s behalf.

The defendants opposed the motion. The defendants argued that the claimant learned nothing new from the investigation report pertaining to North Brunswick or the State; that, at the time of her death or soon thereafter, the plaintiffs knew Mrs. Peplinski died from striking a pole off of Route 130 in North Brunswick and, on these facts alone, they had sufficient information to file a timely tort claims notice and that the plaintiffs’ failure to do so alone fails to satisfy the extraordinary circumstances requirement of pertinent Tort Claims Act section, N.J.S.A. 59:8-9. Furthermore, the defendants argued that the Tort Claims Act makes clear that an estate did not need to exist in order for the plaintiffs to file a notice on the decedent’s behalf.

The trial court was unpersuaded by the defendants’ position and found that the totality of the circumstances showed that only when they received the report did the plaintiffs learn the facts of the accident and, based on those proofs, met the threshold intended by the Act. Furthermore, the court found that without an estate to file the claims notice, there would be no entity chargeable with the failure to file a notice. Thus, the trial court permitted the plaintiffs to file a late notice of tort claim. Both defendants appealed this order.

On appeal, the Appellate Division reversed. The two issues before the appellate court were whether the trial court abused its discretion in finding the plaintiffs demonstrated extraordinary circumstances to relax the ninety day statutory period and whether the plaintiffs could have filed a notice of tort claim on behalf of the estate before the estate was created.

The Appellate Division found that the plaintiffs never indicated what new information they learned from the investigation report that prompted them to pursue the claim on their mother’s behalf against North Brunswick and the State. The Court found that the plaintiffs only came to an understanding they had a claim against the defendants after they visited an attorney who then informed them that the utility pole, which may be owned by either defendant, could be too close to the road and thereby could have contributed to the decedent’s death. As there was nothing in the investigation report that set forth the proximity of the utility pole to the roadway, the investigation report did not provide them with any information they did not already have in their possession immediately after their mother’s death. Because the failure to seek an attorney or ignorance of the filing period fails to satisfy the extraordinary circumstances threshold, the Court determined the plaintiffs could not meet the strict standards required by the Act. Thus, the Appellate Division found the trial court erred in its decision to grant the plaintiffs’ motion to file a late tort claims notice.

Furthermore, the Tort Claims Act specifically states that a notice “shall be signed by the claimant or by some person on his behalf.” Indeed, no case interpreting the Act supported the plaintiffs’ claim that only an estate can file a notice. Hence, the Appellate Division also ruled that an estate need not be created before a notice of tort claims is filed on a decedent’s behalf.

Don’t Let Your Public Entity Client Get Tripped up by a Pothole

By way of background, a public entity is only liable for an injury proximately caused by a condition of its property within the limitations of N.J.S.A. 59:4-2.  To impose liability on a public entity pursuant N.J.S.A. 59:4-2, a Plaintiff must prove the following five elements: (1) a dangerous condition existed at the time of Plaintiff’s injury; (2) Plaintiff’s injuries were proximately caused by the dangerous condition; (3) the dangerous condition created a reasonably foreseeable risk of the kinds of injuries that Plaintiff sustained; (4) the public entity created the dangerous condition or had notice of it a sufficient time prior to Plaintiff’s injury to have taken measures to protect against it; and (5) the public entity’s failure to take action to protect against the dangerous condition was palpably unreasonable.  Failure to prove all five elements defeats Plaintiff’s claim.

In order to satisfy the first element, a claimant must show that there was a dangerous condition, defined as a “condition of property that creates a substantial risk of injury” when the property is used with due care in a reasonably foreseeable manner.  N.J.S.A. 59:4-1a.  Courts interpreting this definition ask whether the condition created a substantial risk of harm to persons, generally, who would use the public property with due care in a foreseeable manner.

In a long line of cases, courts have held that minor imperfections on public travel-ways are not dangerous conditions under the Tort Claims Act because they do not pose a substantial risk of injury to the public.  Courts have so held notwithstanding the fact that the imperfections may directly cause Plaintiffs severe injuries or even death.

For example, in Polyard v. Terry, 160 N.J. Super. 497, 504, 507-08 (App. Div. 1978), aff’d o.b. 79 N.J. 547 (1979), a man drove his car over a three-eighths-inch declivity connecting a highway to a bridge, and then drove over a section of pavement that had comparatively less traction than the rest of the road.  As he drove over these two defective conditions, another car cut him off.  The man lost control of his vehicle, ultimately injuring one plaintiff and killing another.  In a subsequent lawsuit against the State, the Plaintiffs’ theory of the case — backed up by expert testimony at trial — was that the defective conditions of the road contributed to the man’s losing control of his car.  The jury agreed, and found the State thirty percent liable for causing the accident.  The Appellate Division (and the Supreme Court, which adopted the Appellate Division’s reasoning in its entirety) concluded that there was no dangerous condition within the Tort Claims Act notwithstanding that the jury reached a contrary conclusion, and notwithstanding that two defects in the road caused the Plaintiffs’ injury and death.  The Court explained that the Tort Claim Act establishes a threshold level of objective severity to make a defect actionable — defects falling below that threshold are not actionable as a matter of law.  The Court additionally held that a baseline number of defects must be tolerated in public property as being consistent with public expectations.

Another case rejecting the dangerousness of a condition that caused severe injuries is Charney v. City of Wildwood, 732 F. Supp. 2d 448, 452-53 (D.N.J. 2010).  There, a woman, while walking on the Wildwood boardwalk, tripped over a hole that was roughly shaped like a right triangle measuring approximately three and three-eighths inches long and one and one-half inch deep.  Even though the woman sustained multiple fractures, and even though there was evidence that the defendant had repaired adjacent wooden boards as well as the subject board in the past, the Court held that there was no dangerous condition as a matter of law.

Yet another example is Cordy v. Sherwin Williams Co., 975 F. Supp. 639, 641, 643 (D.N.J. 1997) where a bicyclist sustained paralysis when his bicycle struck the property owner’s elevated railroad tracks, thereby launching him head-first over the handlebars and on to the street pavement.  The railroad track was raised between 5/8 and 7/8 of an inch above the roadway.  The court granted summary judgment finding that so slight a differential could not possibly be a dangerous condition creating a substantial risk of injury.  The court found that, that would impose an unfair onerous burden on the County to keep roadways free of even the slightest imperfections.  The court found further that even if one assumed that the small differential was a dangerous condition allowing such a difference could not possibly be found to be palpably unreasonable.

These three cases represent but a few of the many that hold that minor imperfections in public travel-ways are not actionable under the Tort Claims Act even if they do happen to cause substantial injuries.

Third Circuit Clarifies Standard for Establishing Age Discrimination Claims

The Age Discrimination in Employment Act (“ADEA”) is a federal law that prohibits employment discrimination against employees over the age of 40.  One of the lingering questions under the law has been what happens when an employer adopts an employment policy that, while seemingly benefiting a group of employees over 40 years old, also simultaneously adversely affects other employees much older than 40.  For years, in these kinds of situations, federal appeals courts have held that there can never be such a thing as subgroup age discrimination under the ADEA, meaning that in the above example, the older subgroup of harmed employees could not claim age discrimination.  Recently, however, in Karlo v. Pittsburgh Glass Works, 2017 U.S. App. LEXIS 406 (3rd Cir. January 10, 2017), the federal Third Circuit Court of Appeals gave new life to this legal theory, and held that such a claim of age discrimination is now indeed cognizable under the ADEA in subgroup situations.

The legal question that the Third Circuit had to decide in Karlo was whether a subgroup disparate impact claim could be brought under the ADEA. Disparate impact is a way of proving discrimination where a facially neutral employment policy has an adverse impact on a class of employees protected under the discrimination laws. In Karlo, a group of employees over 50 years of age claimed that their layoff from respondent was improper age discrimination because a disproportionate number of employees over 50 years old were laid off while persons who were over 40 but under 50 years old were not. Relying upon past United States Supreme Court precedent holding that the ADEA prohibits all forms of age discrimination, not just age discrimination that happens to affect only persons who are over 40 years old age, the Third Circuit held in Karlo that disparate impact claims can be brought to prove age discrimination under the ADEA, even when the group that is benefited by the subject employer’s practice happens to be over 40 years old.

The Third Circuit’s decision has now created a “split” amongst how federal appeals courts have ruled on this issue. This means that the present decisional law on this issue is not uniform throughout the country. When this happens, the United States Supreme Court will often have to decide the issue to create the necessary uniformity on the standard to be applied by the federal courts. Therefore, until that eventually happens, employers must be more cognizant of how sometimes even a facially neutral employment policy that ostensibly makes no wrongful distinctions amongst employees may result in age discrimination because the policy harms older employees in a disproportionate way compared to other older employees. Because of this possibility, employers must not only make sure that their employment policies not expressly discriminate against older employees, but the impact of how such policies may apply and affect other older employees must also be evaluated so that such policies do not unintentionally discriminate against members of that protected class.

Because disparate impact claims are complicated and often difficult to recognize, employers are wise to seek sound advice from an experienced labor and employment lawyer whenever there is suspicion or concern that a neutral employment policy is having a harmful impact on a group of employees protected under federal or state anti- discrimination laws.

Plaintiff Unable to Meet Permanency Threshold of Tort Claims Act Despite Knee Surgery

The New Jersey Tort Claims Act (“TCA”), N.J.S.A. 59:1-1 to 59:13-10, requires that a Plaintiff seeking to recover damages from a public entity must prove as a threshold requirement that he or she sustained a “permanent loss of body function.”  N.J.S.A. 59:9-2(d). The Appellate Division of the Superior Court of New Jersey on January 3, 2017 issued an opinion, not yet approved for publication, which addresses this requirement in the matter of Moore v. Frucci, 2017 N.J. Super. Unpub. LEXIS 1 (App. Div. Jan. 3, 2017).

The fact pattern is fairly unusual in that, on December 1, 2013, Plaintiff John Moore was standing on a Camden sidewalk observing police activity at a crime scene. Plaintiff alleged that Defendant Detective Christopher Frucci drove an unmarked Camden City Police vehicle onto the sidewalk, and the vehicle struck Plaintiff in the rear of the right leg, causing Plaintiff to lose his balance, but not fall to the ground. Defendant Frucci denied that the vehicle struck Plaintiff, but liability was not an issue raised in Defendants’ Motion for Summary Judgment.  Rather, Defendants claimed that Plaintiff failed to meet the threshold to recover under the TCA.

Plaintiff sought treatment at an emergency department approximately 40 minutes after the incident.  X-rays of the right lower extremity were essentially negative. Plaintiff was also noted to be ambulating without difficulty. However, four days later, on December 5, 2011, Plaintiff commenced a course of physical therapy and chiropractic treatment, alleging injuries to his knee and ankle, as well as severe lower back pain. He continued this treatment for approximately six months.

On February 1, 2012, Plaintiff underwent an MRI of the right knee. The MRI report noted no fracture or contusions, but a “chronic appearing partial tear of the proximal ACL” and “small joint effusion.”

Plaintiff also came under the care of a board certified orthopedic surgeon on February 29, 2012. This doctor indicated that Plaintiff had suffered “aggravation of chronic lumbosacral sprain and strain” and a “right knee contusion with high-grade partial versus full thickness tear of the ACL.” Plaintiff was recommended to continue chiropractic treatment and physical therapy, and was fitted for a knee brace.

After periodic follow-ups with the surgeon and Plaintiff’s claims of persistent tenderness in the right knee, arthroscopic surgery was performed on August 30, 2012. The operative report describes the procedure as “diagnostic arthroscopy of right knee, partial synovectomy medial joint, lateral joint, notch, and suprapatellar pouch, and chondroplasty of patella.”  Plaintiff thereafter attended several post-surgical follow-up visits with the surgeon, as part of what the surgeon described as continuing “aggressive therapy,” which included two injections of the knee with Depo-Medrol and the lidocaine.

The surgeon also ultimately provided a permanency evaluation in which he stated that Plaintiff “has had an insult to his anterior cruciate ligament. There was a partial tear. He did have posttraumatic changes with chondromalacia patella and synovitis of the right knee.” The doctor also opined that Plaintiff might require knee replacement surgery in the future.

In his deposition, Plaintiff, who was employed as a public adjuster, claimed that he had difficulty climbing onto roofs, and when climbing stairs he experienced a “little bit” of pain in the knee. Plaintiff also testified that, given his condition, he paid more attention to his activities due to his knee.  He also claimed that given the right knee soreness and swelling, he was required to ice the knee three to four times per week. He claimed the problems with his knee limited his ability to participate in other activities of daily living, including hunting, riding dirt bikes and a motorcycle which he owned, and caused him pain and difficulty when he remained in the same position for an extended period of time.

The trial court ruled that the proofs set forth above were insufficient to create a triable issue as to whether Plaintiff had met the threshold of the TCA.  Accordingly, Defendants’ Motion for Summary Judgment was granted.

On appeal, the Appellate Division set forth the specific language of N.J.S.A. 59:9-2(d), which indicates that:

“No damages shall be awarded against a public entity or public employee for pain and suffering resulting from any injury; provided, however, that this limitation on the recovery of damages for pain and suffering shall not apply in cases of permanent loss of a bodily function, permanent disfigurement or dismemberment where the medical treatment expenses are in excess of $3,600.00.  For purposes of this section medical treatment expenses are defined as the reasonable value of services rendered for necessary surgical, medical and dental treatment of the claimant for such injury, sickness or disease, including prosthetic devices and ambulance, hospital or professional nursing service.”

Therefore, in circumstances where a Plaintiff has incurred in excess of $3,600.00 in medical expenses, the Appellate Division noted that “to recover pain-and-suffering damages against a public entity the plaintiff must also prove: (1) an objective permanent injury, and (2) a permanent loss of a bodily function that is substantial.”  Toto v. Ensuar, 196 N.J. 134, 145 (2008).”  Further, Plaintiffs “may not recover under the TCA for mere subjective feelings of discomfort.  Brooks v. Odom, 150 N.J. 395, 403 (1997).”  In Brooks, although Plaintiff Brooks had ongoing pain and permanent restrictions of motion in the neck and back, her claims were still dismissed due to the fact that she could function in her employment and as a homemaker.  Id. at 406-407.  The Appellate Division also referenced the opinion in Ponte v. Overeem, 171 N.J. 46 (2002), in which even though Plaintiff in that matter sustained a knee injury which required surgery, the same still was determined not to meet the threshold.

Given all of the foregoing, in Moore the Appellate Division held that Plaintiff did not meet his burden of proof to establish the objective evidence that he had as a result of the incident sustained a permanent substantial injury to his knee. The Court relied heavily upon the fact that following the surgery, plaintiff remained “fully capable of performing in his employment and none of his avocational pursuits were significantly impaired. The discomfort he experienced while performing such activities was insufficient to meet the TCA threshold. Further, (the surgeon’s) suggestion of the possibility of future surgery was insufficient to establish a permanent loss of bodily function that was substantial.”

Thus, this recent Appellate Division opinion stands for the proposition that Plaintiff’s burden to meet the threshold of the TCA is a significant one, as even surgery may not be found sufficient to meet the same. This case shows that, even with objection evidence of a permanent injury, if a plaintiff is unable to show that the loss is substantial with respect to a limitation of his ability to work or his recreational or daily activities, it may be subject to dismissal based upon the TCA’s permanency defense.

New Jersey Judge of Compensation Orders Employer To Pay Costs Of Medical Marijuana Program And Costs Of Filling Prescriptions

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.

 

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