A construction company’s reimbursement for medical marijuana for one of its injured workers is not in violation of federal law that prohibits marijuana as a controlled substance, an appeals court in New Jersey ruled on Monday.

In its appeal, M&K Construction argued the legality of an earlier judge of compensation’s order for it to cover medical marijuana for a worker with a debilitating back injury after a concrete truck accidentally dumped a load on him in 2001, who suffers from chronic pain and nerve damage of which surgery did not alleviate and had been taking opioids for several years, according to documents in Hager v. M&K Construction, filed in the Superior Court of New Jersey, Appellate Division in Jersey City, New Jersey.

Specifically, “M&K Construction argues that the federal Controlled Substances Act… which makes it a crime to manufacture, possess or distribute marijuana, preempts the New Jersey Compassionate Use Medical Marijuana Act… because it is impossible to comply with both statutes,” documents state.

“M&K further contends the order violates (federal law) because it requires the employer to aid and abet petitioner's possession of an illegal substance” and “asserts it should be treated similarly to a private health insurer, which is not required under the (state’s medical marijuana law) to cover the costs of medical marijuana.”

The company also argued that the judge “erred in failing to consider whether medical marijuana is a reasonable and necessary form of treatment under” state workers compensation law, according to documents.

In nine-page ruling addresses the worker’s history with opioids and chronic pain, relying on doctors who both said he was likely dependent on the drugs and that he would never get better, the appeals ruled that the treatment is appropriate if it helps and if the worker and his doctor consider it a safer alternative to opioids. 

In addressing the intersection of federal law and state law, the ruling states “there is evidence of tolerance from the federal government of state-legislated medical marijuana” and that 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.”

“M&K has presented no evidence that it faces a credible threat of prosecution,” the ruling states. “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. …(A) speculative argument cannot support a finding of conflict preemption.”

The argument that state law prohibits health insurers from covering medical marijuana does not apply to workers compensation insurers, the ruling also states, adding “if the Legislature wished to relieve workers' compensation insurers from any obligation to pay the costs of medical marijuana, it would have done so.”

The company could not be reached for comment.