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Weed not covered by workers’ comp, Minnesota high court says

Medical marijuana advocates say the ruling could push injured workers back to illegal sources or to opiate painkillers.

ST. PAUL, Minn. (CN) — The Minnesota Supreme Court struck a blow to the state’s medical marijuana system Wednesday in a pair of rulings saying the drug’s federal criminalization means Minnesota can’t require employers to reimburse injured employees for their cannabis. 

In twin rulings penned by Justice Barry Anderson and published Wednesday morning, the court found that a 2020 Minnesota workers’ compensation law requiring employers to reimburse employees for medical cannabis used to treat on-the-job injuries is preempted by the federal Controlled Substances Act, which has made possession of the drug a crime since 1971. 

In May, the court heard arguments in the cases of Susan Musta, against her employer Mendota Heights Dental Center and its workers’ compensation insurer Hartford Insurance Group, and Daniel Bierbach, against his employer Digger’s Polaris and its insurer State Auto/United Fire & Casualty Group.

Attorneys for Musta and Bierbach argued that covering medical marijuana would not expose insurers or employers to liability under the CSA because it would take place after-the-fact. 

The justices disagreed.

“We conclude that mandating Mendota Heights to pay for Musta’s medical cannabis, by way of a court order, makes Mendota Heights criminally liable for aiding and abetting the possession of cannabis under federal law,” Anderson wrote. 

The court agreed with Musta’s contention that preemption questions were outside the jurisdiction of a workers' compensation appeals court, but attorney Cheri Sisk said in a statement that she was still disappointed in the decision “not only for Ms. Musta who has found tremendous relief for her chronic pain with medical cannabis, but for all injured workers in Minnesota that are or may become eligible to treat with medical cannabis.” 

Sisk pointed to a partial dissent penned by Justice Margaret Chutich supporting her position.

“Musta’s purchase is already complete. So too is the related possession, or at least, if ongoing, it would not be affected by any reimbursement now,” Chutich wrote. “Mendota Heights could not be liable under an aiding and abetting theory because it lacks the required intent.” 

Bierbach’s attorney, Mike Schultz, said he too was disappointed.

“Other jurisdictions are split, some have adopted federal preemption, others have rejected it,” he said, “but Minnesota has now essentially found that federal law does preempt medical cannabis in Minnesota. Ultimately, I think, these issues have to be addressed either through legislation or be appealed through the U.S. Supreme Court.”

Schultz said he and Musta’s attorneys had not yet connected to discuss a possible appeal. 

“It’s a blow to a lot of people who have pain issues, or chronic pain, who were trying to get out from under opiates and other forms of treatment,” he said of the decision. 

He noted that the court did not adopt the position that medical marijuana was ineffective and expressed some sympathy for the position of insurers prior to the decision, which he called “untenable.” Schultz worried, however, that the preemption of worker’s compensation could also lead to a broader decision that Minnesota’s medical program itself was preempted. 

The program, established in 2014, allows for cannabis use for chronic or intractable pain, along with a handful of other conditions. Patients can only use weed purchased in pill, liquid, ointment or dissolvable forms. Wednesday’s decisions take Minnesota out of the small category of states that allow workers’ compensation to cover marijuana. Now, only five others do, and 22 others allow medical use but don’t require insurers to cover it. 

Legalization of recreational marijuana in the state is a hot topic, with weed-legalization candidates prominently featured in the 2020 elections. After a hard “no” from leadership of the Republican-majority state Senate early in Democratic Governor Tim Walz’ term, however, little movement has been made on the issue. 

Jerry Sisk, who leads the workers’ compensation division of the lawyers’ group Minnesota Association for Justice, said the group filed an amicus brief in Bierbach’s case agreeing with Bierbach, Musta and Cherly Sisk —  to whom he is married —because it fell within its mission of advocating for injured workers. 

“The feedback that we have gotten is that medical marijuana has been an incredible piece of medical treatment, that injured workers have been able to get as an alternative to opiate medications,” Sisk said. “And so we felt that further advocating for the right to be able to have WC insurance companies pay for that treatment was a necessity.” 

Representatives for the insurers declined to comment.

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