Bonnie Brandia v. LKQ Minn., Inc. and Indem. Ins. Co. of N. Am. No. WC22-6455 (WCCA October 24, 2022)
The WCCA upheld the Compensation Judge’s decision finding that the Employee was not entitled to reimbursement of out of pocket expenses for medical marijuana because the WCA was preempted by the Controlled Substance Act.
The Employee in this matter injured her right elbow on September 1, 2013. After initial treatments were ineffective the Employee eventually had a spinal cord stimulator implanted in April of 2017. Later toward the end of 2017 the Employee was suggested to try medical marijuana for her symptoms. On February 15, 2019 an Order was issued stating that the Employee’s out of pocket expenses for medical marijuana were to be reimbursed. The Employer and Insurer did not appeal that order.
On October 13, 2021 Musta and Bierbach were issued stating that the Controlled Substances Act preempted the WCA and that medical marijuana was not compensable.
On October 15, 2021 the Employee submitted a request for reimbursement of her medical marijuana out of pocket costs. The Employer and Insurer denied that request and the Employee subsequently filed a claim petition.
Compensation Judge Kirsten M. Marshall dismissed the Employee’s claim petition as a matter of law. The Employee raised an appeal from that dismissal.
As this constituted a question of law the matter was reviewed de novo.
The Employee made five different arguments as to why their out of pocket expenses should be compensated.
First, the Employee argued that the costs of their CBD based products should be compensable. However, in the motion to dismiss the Employee did not make this argument. Further, they did not differentiate which products were CBD and which were THC. The WCCA found that they were only going to address the question as it related to medical marijuana because that was all the Employee claimed and argued previously.
Next, the Employee argued that stopping reimbursement of their October 15, 2021 request for reimbursement had a retroactive effect and that a petition to vacate was required to halt the benefit. The WCCA found that there was no retroactive effect and that the Employee submitted their request for reimbursement after Musta was decided indicating that it was plainly decided prospectively.
Next the Employee argued that a petition to vacate was required to relieve the Employer and Insurer of their obligation. The WCCA found that there was no change in the underlying relationship of the parties requiring a petition to vacate. The only change was that the previously granted benefit was preempted by federal law and the WCCA cannot overrule that law.
Next, the Employee argued that the doctrine of collateral estoppel and res judicata should prevent the Employer and Insurer from denying the benefit. Again, the WCCA found that there was no change in the relationship and that the benefit was preempted by federal law.
Finally, the Employee argued that the stare decisis effect of the decision can be nullified if five factors are met. The WCCA found that this argument sought to overturn a decision of the MN Supreme Court. As the WCCA does not have that ability it did not consider the argument and preserved it for appeal.
Takeaway: Until a change in the controlled substances act is made then medical marijuana is not compensable. CBD derived products may be compensable, but it would have to be argued to the Compensation Judge. For stare decisis to preclude the Musta decision the MN Supreme Court would have to rule on the matter.