Hager v. M&K Constr.

Decision Date13 April 2021
Docket NumberA-64 September Term 2019,084045
Citation247 A.3d 864,246 N.J. 1
Parties Vincent HAGER, Petitioner-Respondent, v. M&K CONSTRUCTION, Respondent-Appellant.
CourtNew Jersey Supreme Court

Matthew Gitterman argued the cause for appellant (Biancamano & DiStefano, attorneys; James E. Santomauro, on the brief).

Victor B. Matthews argued the cause for respondent (Victor B. Matthews, Denville, on the brief).

Alan Silber argued the cause for amici curiae National Organization for the Reform of Marijuana Laws, Garden State-NORML, Coalition for Medical Marijuana-NJ and Doctors for Cannabis Regulation (Pashman Stein Walder Hayden, attorneys; Alan Silber, of counsel and on the brief, and Dillon J. McGuire, Hackensack, on the brief).

Elizabeth R. Leong submitted a brief on behalf of amicus curiae of American Property Casualty Insurance Association (Robinson & Cole, attorneys; Elizabeth R. Leong, on the brief).

JUSTICE SOLOMON delivered the opinion of the Court.

Vincent Hager injured his back in a work-related accident in 2001 while employed by M&K Construction (M&K). For years thereafter, Hager received treatment for chronic pain with opioid medication and surgical procedures to no avail. In 2016, he enrolled in New Jersey's medical marijuana program both as a means of pain management and to overcome an opioid addiction. Thereafter, a workers’ compensation court found that Hager "exhibit[ed] Permanent Partial Total disability" and ordered M&K to reimburse him for the ongoing costs of his prescription marijuana (the Order). The Appellate Division affirmed.

Before us, M&K contends that New Jersey's Jake Honig Compassionate Use Medical Cannabis Act (Compassionate Use Act or the Act) is preempted as applied to the Order by the federal Controlled Substances Act (CSA). Compliance with the Order, M&K claims, would subject it to potential federal criminal liability for aiding-and-abetting or conspiracy. M&K also asserts that medical marijuana is not reimbursable as reasonable or necessary treatment under the New Jersey Workers’ Compensation Act (WCA). Finally, M&K argues that it fits within an exception to the Compassionate Use Act and is therefore not required to reimburse Hager for his marijuana costs.

We conclude that M&K does not fit within the Compassionate Use Act's limited reimbursement exception. We also find that Hager presented sufficient credible evidence to the compensation court to establish that the prescribed medical marijuana represents, as to him, reasonable and necessary treatment under the WCA. Finally, we interpret Congress's appropriations actions of recent years as suspending application of the CSA to conduct that complies with the Compassionate Use Act. As applied to the Order, we thus find that the Act is not preempted and that M&K does not face a credible threat of federal criminal aiding-and-abetting or conspiracy liability. We therefore affirm the judgment of the Appellate Division.


The appellate record reveals the facts and procedural history pertinent to this appeal, and we begin in August 2001, when Hager was employed as a laborer for M&K. While working on a residential basement, Hager sought to retrieve cement in a wheelbarrow he was using. Something "like an explosion" resulted in the cement truck overpouring cement, "hurl[ing Hager] into the air" and "smashing [him] and flattening [him] back out like a pancake." Thereafter, Hager experienced sharp back pain that radiated down his legs, and he was transferred to light duty.

Hager never returned to full duty before leaving M&K in December 2001 due to his persistent back pain.

An MRI revealed spinal disc herniations and bulging and, in November 2003, Hager underwent a laminectomy

and decompression of nerve roots in his back. He subsequently underwent a two-level lumbar fusion in September 2011, but his pain persisted and Hager continued to take prescribed opioid medication.1

In April 2016, Hager began treating with Dr. Joseph Liotta, M.D., a hospice and palliative care physician, who enrolled Hager in New Jersey's medical marijuana program both as an alternative pain treatment and as a means to wean him off of opioids. Initially prescribed one ounce per month, Hager was later prescribed two ounces per month -- the maximum allowable prescription -- costing him more than six hundred dollars each month.


The procedural history of this matter is somewhat murky and largely irrelevant to the issues before us. In sum, Hager petitioned for workers’ compensation benefits in February 2002. M&K denied the claim the following month, stating that the accident was being investigated. It was not until November 2016 that M&K stipulated that Hager was in its employ and suffered a work-related injury. The workers’ compensation trial to determine the nature and extent of Hager's work-related injuries, and any unpaid medical benefits to which he was entitled began in November 2016 and continued over several scattered days until March 2018.

At trial, Hager presented the expert testimony of Dr. Liotta, who testified that he had diagnosed Hager with post-laminectomy syndrome

resulting in chronic pain. Hager was also experiencing adverse side effects from his opioid medication, according to Dr. Liotta, and was "motivated" to cease its use. Hager stopped using opioids after about a month of treatment with marijuana. Dr. Liotta noted a "very weak" risk of chemical addiction to marijuana and fewer serious, and potentially fatal, side effects as compared to opioids. Also, Hager testified on his own behalf that medical marijuana helped wean him off opioids, took "the edge off" his pain, and helped with muscle spasms.

Hager also presented the testimony of orthopedist Dr. Cary Skolnick, M.D., who testified that Hager required long-term pain management due to his "chronic lumbar strain

, lumbar herniated discs [,] ... [and] post-laminectomy syndrome." Dr. Skolnick attributed Hager's condition to the August 2001 accident and concluded that he was 100% totally and permanently disabled, 65% attributable to his back injury and 35% attributable to the effects of his medication.

M&K presented the testimony of orthopedic surgeon Dr. Gregory Gallick, M.D., who concluded that Hager was only 12.5% permanently disabled and still capable of performing jobs such as driving. Dr. Robert Brady, D.O., also testified on behalf of M&K and described the potential side effects of medical marijuana, including cognitive difficulties, hallucinations, emphysema

, chronic obstructive pulmonary disease, and lung cancer. Risks associated with opioids, according to Dr. Brady, include overdose, death, tolerance, depression, and sexual dysfunction. Though Dr. Brady opined that opioids are more physically addictive than marijuana, he represented that the two are equally psychologically addictive.

Citing medical literature, Dr. Brady testified that he did not prescribe his patients medical marijuana and added that medical marijuana had not been proven effective for conditions such as Hager's. Dr. Brady opined that brief physical therapy followed by a home-exercise regimen represented Hager's "best option" for relief. Dr. Brady did not recommend continued physician treatment or pain management because "[u]nfortunately, sometimes people have pain."


At the time of the compensation court's decision, the parties had already reached an agreement regarding medical bills, most out-of-pocket medical expenses, temporary disability benefits, and third-party lien credits -- leaving the court to determine only the nature and extent of Hager's permanent disability and the necessary course of future treatment. The court concluded that Hager "exhibit[ed] Permanent Partial Total disability totaling 65%, approximately 50% attributable to his orthopedic condition and 15% attributable to the effects of the medical marijuana." The court also found no support for M&K's contention that Hager did not require further treatment.

Identifying medical marijuana and opioids as the only two choices for pain management, the court concluded that "marijuana is the clearly indicated option" and ordered M&K to reimburse the costs of Hager's medical marijuana and reasonably related expenses. The court found the testimony of Dr. Liotta and Hager to be credible as compared to that of Dr. Brady. Also important to the compensation court was Hager's ability to "conquer his addiction" to opioids. The court concluded that "the best interests of the injured worker must be a prime consideration under our workers’ compensation scheme. It is likewise clear that the legislature intended to make available the benefits of medical marijuana to persons displaying a medical need, despite the federal attitude toward the substance." The compensation court also rejected M&K's claim that, like a private health insurer or government medical benefit program, M&K could not be required to reimburse the cost of medical marijuana.

The Appellate Division affirmed both the compensation court's Order and, in response to Hager's cross-appeal, the court's finding that Hager "had a 65% permanent partial total disability." Hager v. M&K Constr., 462 N.J. Super. 146, 153, 171-72, 225 A.3d 137 (App. Div. 2020). After conducting a thorough analysis to determine whether the Compassionate Use Act is preempted by the CSA in the context of the Order, the Appellate Division concluded that the Act did not require employers to do what the CSA proscribes -- possess, manufacture, or distribute marijuana. Id. at 162-65, 225 A.3d 137. Compliance with both laws was thus possible, resulting in no positive conflict. Id. at 165, 225 A.3d 137. The Appellate Division also rejected M&K's contentions that compliance with the Order created potential aider-and-abettor liability that both preempted the Compassionate Use Act and placed M&K at risk of federal prosecution for assisting in Hager's possession of marijuana. Id. at 165-67, 225 A.3d 137. The court concluded that M&K lacked the...

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4 cases
  • State v. Middlekauff
    • United States
    • Iowa Supreme Court
    • 27 Mayo 2022
    ...to individuals with debilitating medical conditions for whom there is little or no other effective treatment."); Hager v. M&K Constr. , 246 N.J. 1, 247 A.3d 864, 882 (2021) ("The ‘valid prescription’ language ... cannot, however, apply to marijuana because the CSA prevents marijuana from be......
  • Ripp v. Cnty. of Hudson
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    ...proceedings. I. Our review of decisions from the workers’ compensation court are decidedly deferential. See, e.g., Hager v. M&K Const., 246 N.J. 1, 18, 247 A.3d 864 (2021) (noting appellate review is "limited to whether the findings could have been reached on sufficient credible evidence pr......
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    • 23 Diciembre 2022
    ...no deference to a compensation judge's legal conclusions or statutory construction and, consequently, review those issues de novo. Hager, 246 N.J. at 13. review a trial court's fee determinations "with deference and will disturb them 'only on the rarest occasions, and then only because of a......
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    ...decisions is 'limited to whether the findings made could have been reached on sufficient credible evidence present in the record.'" Ibid. (quoting Hersh v. of Morris, 217 N.J. 236, 242 (2014)). We decline to consider the due process issue raised in Point I of Hartford's brief because the is......
1 firm's commentaries
2 books & journal articles
    • United States
    • South Dakota Law Review Vol. 67 No. 3, September 2022
    • 22 Septiembre 2022
    ...finding that the rider "effectively suspended" parts of the CSA with respect to state medical cannabis programs. Hager v. M&K Constr., 247 A.3d 864. 887 (N.J. (167.) See, e.g., Zachary S. Price, Reliance on Nonenforcement. 58 WM. & MARY L. REV. 937, 957-58 (2017) (asking if the poli......
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    • Fordham Urban Law Journal Vol. 49 No. 3, March 2022
    • 1 Marzo 2022
    ...of Marijuana, 58 B.C. L. REV. 895, 900-02 (2017). (199.) See 21 U.S.C. [section] 903. (200.) See. e.g., Hager v. M&K Constr., 247 A.3d 864, 886-87 (N.J. 2021) (holding that the CSA did not preempt New Jersey's medical cannabis law); see also Reed-Kaliher v. Hoggatt, 347 P.4d 136, 141-42......

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