By: Chelsea M. Trudgeon, Volume 107 Staff Member
I. MINNESOTA SUPREME COURT RULINGS
In October 2021, the Minnesota Supreme Court issued decisions in Musta v. Mendota Heights Dental Center[1] and Bierbach v. Digger’s Polaris[2] addressing reimbursement of medical marijuana under workers’ compensation claims.[3] Under the Minnesota Workers’ Compensation Act, an employer is liable for an injured employee’s cost of treating a work-related injury and is required to “furnish any medical . . . treatment” reasonably necessary to treat a work-related injury.[4] The federal Controlled Substances Act (CSA) makes the possession of cannabis a federal crime.[5] The question, in both Musta and Bierbach, was whether the CSA prohibiting the possession of marijuana preempted[6] the state law requiring employers to reimburse for any medical treatment.[7] In both cases, the court ruled that neither an employer nor insurer are required to pay for medical cannabis treatments for an injured worker.[8] The court’s reasoning in both cases is that federal law, the CSA, preempts the provisions of the Minnesota Workers’ Compensation Act.[9]
In Musta, Susan Musta was injured while at her job at Mendota Heights Dental Center.[10] She endured multiple rounds of medical intervention, all of which were unsuccessful.[11] After these unsuccessful attempts, Musta’s doctor certified her for participation in Minnesota’s medical cannabis program.[12] Musta then sought reimbursement for the cost of the medical cannabis from Mendota Heights under their worker’s compensation plan.[13]
Similarly in Bierbach, Daniel Bierbach suffered a work-related ankle injury while working at Digger’s Polaris.[14] Over the course of 15 years, Bierbach tried various techniques to manage the pain as his ankle slowly deteriorated.[15] After these unsuccessful techniques, his doctor approved him to participate in the state’s medical cannabis program.[16] The total cost of his dosage plan was around $1,860 per month and he sought reimbursement from his employer for these costs.[17]
In Musta and Bierbach, both employers, Mendota Heights Dental and Digger’s Polaris, argued that the federal prohibition in the CSA on the possession of cannabis preempts the requirement under Minnesota’s workers’ compensation laws for an employer to pay for an injured employee’s medical marijuana treatment.[18]
The Minnesota Supreme Court reversed the decision of the Workers’ Compensation Court of Appeals in both cases. It held that the Workers Compensation Court of Appeals lacked subject matter jurisdiction to determine the preemption issue presented in this case because it required the interpretation and application of federal law.[19] The court further concluded that the CSA preempts an order made under Minnesota statute that obligates an employer to reimburse an employee for medical marijuana because that would expose the employer to criminal liability under federal law for aiding and abetting the unlawful possession of cannabis.[20]
II. IMPLICATIONS
In response to an appeal from Musta and Bierbach, the U.S. Supreme Court sought a brief from the Office of the U.S. Solicitor General to address the issue of whether the CSA preempts a state workers’ compensation order.[21] The brief concluded that the judgments by the Minnesota Supreme Court are correct and that cases such as these are novel, as the law surrounding marijuana is evolving at both the state and federal level, and suggested that the Court allow such evolution to move forward before addressing the issue.[22] The U.S. Supreme Court was apparently swayed in part by the arguments in the Solicitor General’s brief and ultimately denied the petition to review the case.[23]
The lack of action by the U.S. Supreme Court leaves an inconsistent approach to the issue of preemption as evidenced by a handful of conflicting state court rulings.[24] States such as Connecticut, New Mexico, New York, New Hampshire, and New Jersey have found that reimbursement of medical marijuana is covered under workers’ compensation.[25] For example, New York overcame the issue of preemption by stating that the CSA has an exception for other controlled substances that were obtained from a practitioner, that the insurance carrier is merely required to reimburse a claimant for monetary costs (an activity that is not expressly prohibited under the Act), and that the hypothetical or potential conflict of aiding and abetting is insufficient to warrant the preemption of a state statute.[26] In comparison, states like Maine, Massachusetts, and now Minnesota have failed to authorize medical marijuana reimbursements.[27] For employers and payers, the lack of direction from the Supreme Court muddies the waters on whether they should be required to reimburse an injured worker for medical marijuana.[28] For an injured worker, one may be confused on what their state’s law follows, resulting in a large amount of medical bills and unanswered questions.
As for Minnesota, the rulings in Musta and Bierbach created a bright-line rule regarding the compensability of medical cannabis in workers’ compensation claims.[29] Insurers now have an absolute basis to deny a request to reimburse expenses, even if the medical cannabis treatment is found reasonable and necessary by a medical provider.[30] If a future Minnesota party wants a workers’ compensation carrier to pay for medical marijuana, the remedy will have to be for Congress to change the current law[31] or for the Supreme Court to overrule decisions such as Musta and Bierbach.
[1] 965 N.W.2d 312.
[2] 965 N.W.2d 281.
[3] Peter F. Lindquist, MN Supreme Court Rules on Medical Cannabis in Work Comp, SFM (Nov. 10, 2021), https://www.sfmic.com/who-pays-for-cost-of-medical-cannabis-in-a-work-comp-claim-the-mn-supreme-court-weighs-in-on-the-debate-with-recent-court-decisions/ [https://perma.cc/QND5-R7ZN].
[4] Minn. Stat. § 176.135, subd. 1 (2020).
[5] 21 U.S.C. §§ 801–971.
[6] Preemption is when state and federal law conflict, federal law displaces, or preempts, state law due to the Supremacy Clause of the Constitution. Preemption, Legal Info. Inst., https://www.law.cornell.edu/wex/preemption [https://perma.cc/HBN5-5UMF] (last visited Nov. 20, 2022).
[7] Musta v. Mendota Heights Dental Ctr., 965 N.W.2d 312, 315 (Minn. 2021), cert. denied, 142 S. Ct. 2834 (2022); Bierbach v. Digger’s Polaris, 965 N.W.2d 282 (Minn. 2021), cert. denied sub nom. Bierbach v. Polaris, 142 S. Ct. 2835 (2022).
[8] See id.
[9] Musta, 965 N.W.2d at 327; Bierbach, 965 N.W.2d at 282.
[10] Musta, 965 N.W.2d at 316.
[11] Id. (explaining Musta’s medical treatments she received: conservative care, chiropractic treatment, medication management, physical therapy, injection therapy, and ultimately surgery).
[12] Id. Minnesota’s medical cannabis program allows individuals with certain medical conditions to possess and use cannabis for medical purposes. See Minnesota’s Medical Cannabis Program, MN House Research (June 2022), https://www.house.leg.state.mn.us/hrd/pubs/MCTRA.pdf [https://perma.cc/4GXT-R5R4]. A patient must be diagnosed by a health care practitioner with one of the qualifying medical conditions listed and then must send an annual application to the Minnesota Department of Health to enroll in the program. Id. The Minnesota Department of Health will verify the patient, and with the health care practitioner’s continuing treatment, the patient will obtain medical cannabis from a registered manufacturer. Id.
[13] Musta, 965 N.W.2d at 316.
[14] Bierbach, 965 N.W.2d at 282.
[15] See id. at 283–84 (Chutich, J., concurring and dissenting) (describing that Bierbach underwent surgery, took opioids, tried an ankle brace and ankle boot and compression icing, had cortisone ankle injections, and took over-the-counter anti-inflammatory medications to try to ease his pain).
[16] See id. at 284 (Chutich, J., concurring and dissenting).
[17] Id. at 284 (Chutich, J., concurring and dissenting).
[18] Musta v. Mendota Heights Dental Ctr., 965 N.W.2d 312, 315 (Minn. 2021), cert. denied, 142 S. Ct. 2834 (2022); Bierbach, 965 N.W.2d at 282.
[19] Musta, 965 N.W.2d at 327; Bierbach, 965 N.W.2d at 282.
[20] Musta, 965 N.W.2d at 327; Bierbach, 965 N.W.2d at 282 (stating that federal law preempts Minn. Stat. § 176.135, subd.1, as an employer may be liable for aiding and abetting if it fails to follow the federal law).
[21] See generally Brief for the United States as Amicus Curiae, at 9, Musta v. Mendota Heights Dental Center, Bierbach v. Digger’s Polaris, (2022) (Nos. 21-676 & 21-998) 2022 WL 1560177 at *9 (describing how these cases “present a novel question in a rapidly evolving area of law” and thus, do not warrant the Supreme Court’s review).
[22] Id. at 19. See also Brian Allen, U.S. Supreme Court Refuses to Hear Minnesota Workers’ Comp Cannabis Cases, mitchell (July 12, 2022), https://www.mitchell.com/insights/workers-comp/article/us-supreme-court-refuses-hear-minnesota-workers-comp-cannabis-cases [https://perma.cc/6974-9JZZ].
[23] Allen, supra note 22.
[24] Id; see also Supreme Court Denies Reimbursement for Medical Marijuana in Workers’ Comp Cases, Gillick, Wicht, Gillick, & Graf, https://www.gillickwicht.com/supreme-court-denies-reimbursement-for-medical-marijuana-in-workers-comp-cases [https://perma.cc/CQ9H-JEJX] (last visited Nov. 7, 2022) (describing other state courts’ approach to the issue such as New Mexico that found that reimbursement did not preempt the Controlled Substance Act).
[25] Court: Medical Marijuana in Minnesota Not Covered by Workers; Comp, WorkingManLaw Blog (Jan. 8, 2022), https://www.workingmanlaw.com/blog/workers-compensation-and-injury-info/medical-marijuana-minnesota-law.html [https://perma.cc/6EBU-FH57].
[26] See Quigley v. Vill. of E. Aurora, 193 A.D.3d 207, (2021), leave to appeal denied, 174 N.E.3d 708 (2021).
[27] Gillick, Wicht, Gillick, & Graf, supra note 24 (describing how some states have been successful with workers’ compensation claims for reimbursement of medical marijuana).
[28] See Allen, supra note 22.
[29] Lindquist, supra note 3.
[30] Lindquist, supra note 3.
[31] Minnesota Supreme Court Issues Decision Involving the Compensability of Medical Marijuana, Aafedt, Ford, Gray, Monson, Hager (Oct. 2022), https://www.aafedt.com/minnesota-supreme-court-issues-decision-involving-the-compensability-of-medical-marijuana [https://perma.cc/S4AG-9UW6].
