Susan Musta v. Mendota Heights Dental center, et. al. A20-1551 (Minn. Oct. 13, 2021)
The employee suffered a neck injury while working for her employer. After multiple rounds of medical intervention were unsuccessful, her doctor certified her for participation in Minnesota’s medical cannabis program. The employee sought reimbursement for the cost of medical cannabis from the employer and insurer. The employer and insurer agreed the treatment was reasonable and necessary but denied it based on the federal prohibition in the Controlled Substances Act (CSA) against possession of cannabis.
At hearing the parties stipulated the treatment was reasonable and necessary. The compensation judge declined to resolve the issue of preemption and attempted to certify the question to the Supreme Court. They rejected and remanded it to the Compensation Judge for a determination on the merits. The Compensation Judge analyzed the case in light of the appropriation riders, which have been passed annually for the last several years on a federal level which prohibits criminal prosecution an act that is compliant with a state’s medical cannabis laws. She also awarded the cannabis based on the stipulation it was reasonable and necessary. When appealed to the WCCA, the WCCA struck certain findings on the preemption issue, finding they lacked subject matter jurisdiction, but affirmed the compensation judge’s award based on the stipulated facts and remaining findings.
The Supreme Court found the WCCA lacked subject matter jurisdiction to interpret and apply federal law. They analyzed when the WCCA may ‘look at’ certain laws outside of the Workers’ Compensation Act in furtherance of its objectives but the fact that this precise legal question, properly interpreted, falls outside of workers’ compensation laws.
On the cannabis issue, the Supreme Court found that the prohibition in the Controlled Substances Act of cannabis preempts an order made under workers’ compensation law that would require an employer and insurer to reimburse an injured worker for the cost of medical cannabis.
The Supreme Court favorably analyzed the Maine case of Bourgoin, which was the first in the country to find that federal law preempts mandated reimbursement of an employee’s medical cannabis purchases under the impossibility theory of conflict preemption. The employee had argued one cannot aid and abet a crime that has already been committed, and since the cannabis has been purchased and is in their possession and they’re seeking reimbursement after the fact. They also argued the employer and insurer would lack the required mens rea of the crime, if ordered to reimburse. The Supreme Court pointed out that as in Bourgoin, requiring an employer and insurer to reimburse for medical cannabis would be acting with the knowledge it was subsidizing the employee’s purchase of marijuana. Citing to a U.S. Supreme Court case, the Minnesota Supreme Court held that compelling a person to act does not necessarily negate the mens rea. Furthermore the intent element requires active participation with ‘full knowledge of the circumstances of the charged offense.’ The Supreme Court held that in cases where reimbursement was mandated, the employer and insurer are fully knowledgeable about the circumstances advanced by its compelled reimbursement, and that possession by the employee of cannabis is unlawful under the CSA.
In borrowing language, the Supreme Court held that, “a right provided to an individual under Minnesota’s workers’ compensation law to secure reimbursement for the use of medical cannabis to treat a diagnosed medical condition cannot be “converted into a sword that” requires an employer to pay for those purchases and thus “engage in conduct that would violate the CSA.”
The Supreme Court also analyzed the arguments around the appropriations riders. The employee had attempted to argue that the riders prohibit prosecution and thus there is no conflict. The Supreme Court pointed out that these are temporary appropriations riders, and not law. Furthermore they held impossibility preemption does not turn on speculation about future prosecutorial decisions, but on whether compliance with both state and federal law is impossible.
Overall, the Supreme Court noted that the result here may not be beneficial to the employee but directed Congress to pass, and the President to sign, legislation that addresses the preemption issues created in these types of cases. Until then, employers and insurers in Minnesota may deny medical cannabis as they cannot legally be required to pay for it.