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Minnesota Insurers Argue Workers’ Comp Doesn’t Cover Medical Pot

Two workers' compensation insurers and their clients say federal marijuana prohibition prevents them from covering the drug for employees' pain.

ST. PAUL, Minn. (CN) — Two workers’ compensation insurers took on Minnesota’s medical marijuana program Monday at the state’s high court, arguing that continued federal prohibition of cannabis forbids them from paying for injured workers’ use of the drug for pain relief. 

The Minnesota Supreme Court heard oral arguments early Monday in the cases of Susan Musta and Daniel Bierbach, two Minnesotans who sought to use medical marijuana to treat pain and disability from work-related injuries. Attorneys for their respective employers’ workers-compensation providers argued that coverage of medical marijuana would put insurers at risk of aiding and abetting a federal crime. 

“If you look at what they’re doing, and you look at it as an independent act, and you ask the question ‘what did you plan to use this money… for?’ There’s no question that they’re using it to facilitate the possession of cannabis,” attorney Bill Hart said, arguing on behalf of Musta’s workers' compensation provider, Hartford Insurance Group, and her former employer. 

In two sequential but separate hearings, Hart and United Fire & Casualty Group attorney Jeffrey Markowitz argued that even though Congress has halted federal prosecutions of medical marijuana cases through a spending rider for the Department of Justice, a worker’s compensation court could not order a provider to fund the drug’s purchase. 

“Congress is saying that it’s their policy not to have prosecutions, but remember the test for conflict preemptions is whether the party can comply without violating federal law,” Hart said. “The court is called on to decide whether the actor can comply with federal law, not whether they can be prosecuted for noncompliance.” 

Attorneys for both Musta and Bierbach dismissed that characterization, saying that there was no crime involved in reimbursing a patient for purchased marijuana after the fact. 

“If my client is the one who purchased and possessed the marijuana, then she can be charged under the Controlled Substance Act,” Musta’s attorney Cheri Sisk acknowledged. She added, however, that the law made no statements as to funding marijuana purchases. “The employer is not performing an act forbidden under the Controlled Substance Act.” 

In their briefs, Musta’s attorneys also argued that the Minnesota Workers' Compensation Court of Appeals didn’t have jurisdiction to analyze statutes other than the Workers' Compensation Act in the first place, and hadn’t erred in declining to do so. 

Bierbach’s case, immediately following Musta’s, drew still more heated rhetoric.

“We have a broad duty to reimburse under the Workers' Compensation Act, of course it’s broad,” Markowitz said on behalf of United Fire & Casualty Group. “I don’t think that the Minnesota Legislature ever thought that the WCA would be applied to an illegal substance under the Controlled Substances Act.”

Justice Natalie Hudson said she was wary of using Bierbach’s case as a bellwether.

“It does seem that he’s going into LeafLine”-- the pharmacy which distributed Bierbach’s marijuana — “he’s going in and he’s working with the professionals there, and they’re handling his dosing,” she said. “Do we make law on facts like that when there are other people who don’t have a case like Mr. Bierbach’s?”

In response, Markowitz sought to characterize medical marijuana as untested and dangerous, beyond the scope of a workers’ comp program’s responsibilities in any scenario. “Here we don’t just have use of an off-label drug, we have use of a drug for which there is no beneficial use under the law in the United States,” he said. 

Justice Paul Thissen sought a response from Bierbach’s attorney Michael Schultz on Markowitz’ contention that Bierbach’s medical marijuana use would inevitably become a “revolving fund.”

“Intractable pain is defined by the Department of Health as permanent pain,” the judge said. “It seems like fantasy to make the case that the insurer’s not going to have to reimburse this on an ongoing basis.” 

Schultz said that the scenario isn’t uncommon in worker’s compensation claims. Some of his clients, he said, “have had prescriptions denied for opiates every time. And every time we battle it.” 

Democratic Attorney General Keith Ellison’s office also weighed in on Musta’s case in an amicus brief after the court declined to permit intervention in March. The brief, penned by Assistant Attorney General Jeffrey Boman, argued that Musta’s claims weren’t preempted. “Over 31,000 Minnesotans are actively enrolled in Minnesota’s medical cannabis patient registry. A court order invalidating the medical cannabis laws, in whole or in part, would be disruptive to many Minnesotans with underlying medical conditions,” Boman said in a section outlining the attorney general’s interest. 

“To be prosecuted for aiding and abetting, a federal prosecutor would have to ignore black letter law that one cannot aid and abet a completed crime, ignore that [Hartford and Musta’s employers] do not have the required specific intent to facilitate the crime, and would also have to violate congressional funding directives,” Boman wrote. “The speculative arguments of relators are simply not sufficient to meet their burden.” 

Minnesota’s medical marijuana program, established in 2014, allows for the use of cannabis for a variety of conditions, including chronic or intractable pain. Weed cannot be smoked for medical uses, however -- the program allows only for the use of pot derivatives in pill, liquid, ointment, or dissolvable forms. 

The North Star State is one of only six that allow, at least to some extent, workers' comp reimbursement for marijuana. Twenty-two other states have medical marijuana but don't require insurers to cover it.

Recreationally, Minnesota decriminalized possession of 42.5 grams or less of pot in 1976. The state’s Democratic Farmer Labor Party has spearheaded recent efforts to legalize it statewide, and legalization was a major campaign plank for Democratic Governor Tim Walz in 2018. It has also been a persistent wedge issue in state elections, with two legalization parties acquiring “major party” status in 2018 and running candidates in tight elections in 2020

DFLers introduced a legalization bill in 2019, but any further movement on the issue has been stymied by Republican leadership in the Minnesota Senate, which has opposed legalization.

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