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BSB Attorneys File Brief in Supreme Court Supporting Worker’s Right to Medical Marijuana

| Mar 2, 2021 | Workers' Comp |

Attorneys Charles Bird, Grant Borgen, Danielle Bird filed a brief last week in the Minnesota Supreme Court on behalf of the Minnesota Association for Justice. The issue  is whether a workers’ compensation insurer is required to reimburse an injured work for medical marijuana, prescribed by a physician, to treat a work injury when said treatment is reasonable, necessary, and casually connected to the work injury. The workers’ compensation judge and the Workers’ Compensation Court of Appeals found in favor of reimbursing the injured worker.   

The insurance carrier has now appealed to the Minnesota Supreme Court. The carrier is arguing two main issues. First, the carrier is arguing that it is unconstitutional for it to reimburse the injured worker for medical marijuana. The thrust of the insurance carrier’s argument is that doing so would require it to “aid-and-abet” the United State’s federal law proscription on marijuana possession. This belief is misguided. As the BSB attorneys note in their brief, federal aiding and abetting law requires evidence to show that another’s conduct was part and parcel of a federal crime. While the injured worker’s possession of medical marijuana might constitute a federal crime, it cannot be said that an insurance carrier’s reimbursement—well after the fact—is action that is part-and-parcel of a crime. 

There is no evidence no direct billing to the insurer for medical marijuana purchases.  The injured worker can choose to visit one of the two medical marijuana dispensaries, purchase medical marijuana, possess it, and consume it. The carrier can choose whether to seek reimbursement from the carrier or not.  If he chooses to seek reimbursement, he may or may not be in possession of the medical marijuana he bought at the time he seeks reimbursement.  There is no proof that the carrier has any say in whether the worker seeks or possesses medical marijuana.  There is no proof that the carrier is present when Respondent purchases medical marijuana. There is no proof that the carrier is present when Respondent is in possession of or consumes medical marijuana.  There is no proof that the worker seeks the carrier’s permission prior to purchasing medical marijuana.  The carrier is not involved in the decision to purchase medical marijuana or involved in its possession.  The carrier’s involvement is limited to reimbursing after the fact. 

Second, the injured worker’s insurance carrier argued that medical marijuana is never a reasonable or necessary medical treatment. This position is inconsistent with Minnesota law given that the medical marijuana was prescribed by a physician in order to cure or relieve a work injury.  This is the standard applied to any treatment for a work injury.  

The next step in the case is an oral argument before the Minnesota Supreme Court issues its decision.