MN Supreme Court Says No to Mandatory Reimbursement for Medical Marijuana
In two companion decisions, a divided Supreme Court of Minnesota held that the state’s Workers’ Compensation Court of Appeals (WCCA) lacks jurisdiction to decide whether federal law preempts Minnesota law that requires an employer to furnish medical treatment when the treatment for which reimbursement is sought is medical cannabis [Bierbach v. Digger’s Polaris, 2021 Minn. LEXIS 559 (Oct. 13, 2021); Musta v. Mendota Heights Dental Center, 2021 Minn. LEXIS 560 (Oct. 13, 2021); for a PDF image of the Musta decision, click here]. The majority of the Court also held that the federal Controlled Substances Act (CSA), 21 U.S.C.S. §§ 801-971, preempts an order made pursuant to the state’s Workers’ Compensation Law, Minn. Stat. § 176.135, subs. 1 (2020), requiring an employer to reimburse an injured employee for the cost of medical cannabis used to treat a work-related injury. The Court stressed that the state cannot force an employer to facilitate an employee’s unlawful possession of cannabis, either through work accommodations or reimbursement for its purchase.
Background
In each case, the employee suffered a work-related injury, was eventually certified as eligible to participate in Minnesota’s medical cannabis program, and began using medical marijuana to treat the work-related injury. Each employee sought reimbursement for the cost of that treatment. At least in the Musta case, the parties stipulated that Musta’s use of medical cannabis complied with the THC Therapeutic Research Act (THC Act), Minn. Stat. §§ 152.21-.37 (2020) and was reasonable, medically necessary, and causally related to the work injury. In each case, however, the employer or carrier objected to the request for reimbursement, contending in relevant part that paying for someone to possess cannabis was prohibited by federal law, specifically the CSA.
Compensation Judge: No Risk of Prosecution
The compensation judge initially declined to resolve the issue of federal preemption. As to the medical marijuana issues, the judge noted that use of medical cannabis was legal under Minnesota law, and nothing in the workers’ compensation laws prohibited reimbursement for medical cannabis when used to treat a work-related injury. Further, the judge noted that ongoing congressional appropriations riders prohibited the United States Department of Justice from criminally prosecuting an act that was compliant with a state’s medical cannabis laws.
The compensation judge stated that a federal prosecution would “prevent Minnesota from implementing its own laws” regarding medical cannabis use. Thus, the compensation judge concluded, there was no risk that the employer would be criminally prosecuted under federal law, and therefore no preemptive conflict between federal law and Minnesota law existed. The employer was accordingly required to reimburse Musta for her medical cannabis expenses.
On appeal, the WCCA concluded that it lacked subject matter jurisdiction over the preemption issue. Accordingly, the WCCA rejected the compensation judge’s analysis on that issue and struck certain findings made regarding federal law. But, concluding that the legal question—the employer’s reimbursement liability—could be resolved based on the stipulated facts and the remaining findings, the WCCA affirmed the award of reimbursement. The employer appealed to the Minnesota Supreme Court by writ of certiorari.
High Court: WCCA Cannot Interpret Laws of Other Jurisdictions
The Supreme Court quickly disposed of the first issue—whether the WCCA correctly concluded that it lacked subject matter jurisdiction to decide whether federal law preempted Minnesota law. It did not. Turning to the real issue at stake—the conflict between federal and state law—Justice Anderson, writing for the majority of the Court said:
We acknowledge that this issue represents a unique and challenging intersection between the law of preemption, federal aiding and abetting jurisprudence, the ongoing tension between the states and the federal government regarding cannabis regulation, and the objectives of the Minnesota workers’ compensation system. But we are not the first state court of last resort to decide this specific issue. Thus, we begin with the decisions that have already addressed the preemptive effect of the CSA on orders for reimbursement of medical cannabis made under state workers’ compensation laws [Opinion, p. 19].
Justice Anderson reviewed decisions from Maine (see my discussion of this decision here), New Hampshire (see my discussion of this decision here), and New Jersey (see my discussion of this decision here), noting that the Maine court had determined that compliance with its state law and the federal law was impossible and, therefore, federal law preempted. New Hampshire and New Jersey had decided otherwise.
The justice stressed that the fact that, as a practical matter, the employer was unlikely to be prosecuted, made no difference. “Impossibility preemption does not turn on speculation about future prosecutorial decisions, but on whether compliance with both state and federal law is impossible” [Opinion, p. 24]. Moreover, the Justice Anderson said that the WCCA’s Order compelled the employer’s “active participation in the possession that is criminalized by the CSA” [Opinion, p. 26]. In short, the state cannot force an employer to facilitate an employee’s unlawful possession of cannabis, either through work accommodations or reimbursement for its purchase.
The justice called upon federal authorities to act to resolve the conflict, stating:
Finally, we note the argument by the dissent that preemption here frustrates the intention of the Legislature to make medical cannabis available to patients suffering from intractable pain. We agree that if the result here is not beneficial to the employee, the remedy is for Congress to pass, and the President to sign, legislation that addresses the preemption issues created by the conflict between federal and state law [Opinion, p. 29].
Justice Chutich, concurring in part and dissenting in part, indicated that the Court should have followed the New Hampshire and New Jersey decisions, instead of the decision from Maine.