Bierbach v. Digger’s Polaris, et. al No. WC19-6314 (W.C.C.A. November 10, 2020)
Daniel Bierbach (“employee”) was operating an ATV while at work for his employer, Digger’s Polaris (“employer”), when the ATV rolled, landing on his ankle. The employer and its insurer admitted liability. He was diagnosed with fractures of the distal tibial pilon and fibula, and underwent surgery a few weeks after the injury. He continued to have symptoms and seek treatment in the years after surgery. Eventually, his treating doctor opined that he was a candidate for medical cannabis to help with his intractable pain and to wean him off of narcotic pain medication. Following this, the employee applied for the Minnesota medical cannabis registry with the Minnesota Department of Health and this was approved. The employee received medical cannabis from Leafline, one of two registered dispensaries under Minn. Stat. § 152.52 and his treating provider opined that this appeared to be effective in reducing the employee’s pain. Between 2018 and his appeal, his medical cannabis dosage had doubled and at the time of hearing, the monthly cost of his medical cannabis was $1,863.71.
The employee filed a claim petition seeking reimbursement for out-of-pocket costs incurred for medical cannabis used to treat his work-related injury. The matter was heard before a compensation judge on May 14, 2019. The judge awarded reimbursement, and concluded that the employee’s use of medical cannabis was reasonable and necessary treatment that was causally related to the work injury. The employer and insurer appealed.
On appeal, the employer and insurer argued, among other things, that medical cannabis was not reasonable and necessary because it was not currently accepted for medical treatment use and that as cannabis is an illegal substance, it could not be considered reasonable treatment. The W.C.C.A. pointed to the Medical Cannabis Therapeutic Research Act (“MCTRA”), allowing certain qualified Minnesotans to possess and use cannabis to treat certain medical conditions. The W.C.C.A. noted that though there was not language in this act that required insurers to pay, the Minnesota Workers’ Compensation Act requires employers to provide “any” medical treatment that may be reasonably required to cure and relieve the effects of the injury, and that the fact that the Minnesota Department of Labor and Industry had not set out treatment parameters did not render this language ineffective. The W.C.C.A. also noted that the treatment parameters unequivocally state that medical cannabis is not an illegal substance. The W.C.C.A. outlined that the employee met the requirements set forth in the MCTRA because he had a qualifying condition (intractable pain), had applied to the MDH registry, obtained his medical cannabis through a registered vender, and both the treating provider and Leafline had reporting requirements. The W.C.C.A. held that given the facts, they did not see anything unreasonable about the employee using medical cannabis to treat his intractable pain.
The employer and insurer also argued that the compensation judge lacked subject matter jurisdiction because cannabis is an illegal substance under federal law. The W.C.C.A. also stated that the compensation judge did not have jurisdiction to determine issues of federal criminal law, but the compensability of medical treatment for a work-related injury was squarely within the compensation judge’s jurisdiction pursuant to Minn. Stat. § 176.135. The employer and insurer also argued that they could not be ordered to violate federal law by reimbursing out-of-pocket costs incurred by the employee and that a conflict exists between federal law and the MCTRA. The W.C.C.A. declined to address the argument regarding the federal Controlled Substances Act because it does not have jurisdiction in any case that does not arise under the workers’ compensation laws.
As long as an employee follows the rules set forth in the MCTRA, the courts will likely find the use of medical cannabis reasonable. The courts cannot address issues of federal criminal law; the use of medical cannabis to treat a work-related injury is not a matter of federal criminal law but rather falls under the Minnesota Workers’ Compensation Act, which is within compensation judges’ jurisdiction.