March 31, 2022


March 31, 2022

Although many states have enacted laws permitting the use of recreational and/or medical marijuana, the question of whether employer/insurers are obligated to pay for medical marijuana for a workers’ compensation claim remains in dispute across the nation. Under the Controlled Substances Act (“CSA”), marijuana as well as other substances, remains illegal under Federal Law. However, attorneys representing the interest of injured workers in Minnesota have recently petitioned the U.S. Supreme Court seeking a finding that the CSA does not preempt an award of medical marijuana under a state’s workers’ compensation law.

In Bierbach v. Digger’s Polaris and State Auto/Uniter Fire & Casualty Group, the claimant has sought review of the judgment of the Supreme Court of Minnesota which held the Federal Law preempted an award of the workers’ compensation court mandating reimbursement for the cost of medical marijuana used to treat a work-related injury. The claimant was eligible for marijuana under state law after being diagnosed with intractable pain and being approved by the Minnesota Department of Health. He sought to recover the cost of the medical marijuana from his employer under the state workers’ compensation law and received an award from a workers’ compensation judge, who found that medical marijuana was a reasonable and necessary medical treatment. The award was upheld by the state Court of Appeals but ultimately reversed by the Minnesota Supreme Court. Specifically, the state supreme court held that the “CSA preempts the compensation court’s order mandating relators to pay for Bierbach’s medical [marijuana].”

Under the doctrine of preemption, federal law preempts state law, even when the laws conflict. Thus, a federal court may require a state to stop certain actions it believes interferes or conflicts with federal law. The question of federal preemption of state authorized used of medical marijuana has now been addressed by four of fifty states without consensus. The supreme courts of Maine and Minnesota have found that the CSA preempts a state award of medical marijuana while the supreme courts of New Hampshire and New Jersey have found that no preemption exists. While the award of medical marijuana may be permissible by state law, as is the case in Illinois and Missouri, many employer/insurers remain unwilling to do so for fear that doing so would violate federal law. Thus, a decision from the U.S. Supreme Court, would have significant repercussions on workers’ compensation claims across the nation.

Federal preemption of state law is relatively novel in a workers’ compensation setting but is certainly an issue that will continue to be raised in the absence of guidance from the U.S. Supreme Court. Workers’ compensation courts are courts of limited jurisdiction and are generally not positioned to decide this issue. Preemption defenses can and should be raised at trial until such time as additional guidance is received from a state Supreme Court and ultimately the U.S. Supreme Court.

The Bierbach case also highlights the need for a broad-based defense when addressing the reasonableness and necessity of medical marijuana in workers’ compensation claims. Bierbach had a longstanding chemical dependency issue and used marijuana legally for much of his life. He failed to inform his treating physician of his prior issues and testified that no one had asked. Bierbach admitted that his doctor had “no control over the frequency or amount of medical [marijuana] that he receives under the program and that no on monitored his use [of the medical marijuana].”  Although this testimony was not sufficient to obtain a denial from the state workers’ compensation judge or Court of Appeals, the unmonitored use of any medication should not go unchallenged in a workers’ compensation claim.

If you have any questions on the question of preemption, the impact of a prescription for medical marijuana in a workers’ compensation claim, or your business in general, please contact any attorney at Wiedner and McAuliffe by email or phone at 312-855-1105.