On June 21st, 2022, the U.S. Supreme Court declined to hear a pair of cases regarding workers’ compensation for medical marijuana. The Department of Justice encouraged the Supreme Court to reject any cannabis cases because it argued that broader policy regarding marijuana is better left up to Congress or the Executive branch. Furthermore, the Department of Justice stated that the states did not address the issue eloquently and urged the Supreme Court to stay out of this area of law.
The two cases involved two Minnesota residents who raised separate challenges seeking workers’ compensation for medical marijuana after being injured while on the job. In both cases, the state Supreme Court ruled that since marijuana was illegal on the federal level, employers were not obligated to reimburse for medical marijuana.
The plaintiffs made the argument that the employers were not expected to possess, manufacture, or distribute cannabis. The workers simply wanted to be compensated for the cannabis they were using to treat the injury they sustained at work. The Supreme Court’s refusal to hear the two cases is consistent with its position of refusing to address matters regarding the Schedule I classification of marijuana under the Controlled Substance Act (CSA).
With the Supreme Court’s decision to stay out of this matter, it leaves this issue to be dealt with by state Supreme Courts which have yielded different opinions. The courts in New Hampshire, New Mexico, and New Jersey found no conflict between state law and the CSA and authorized the reimbursement. On the other hand, the courts in Maine, Massachusetts, and Minnesota have ruled the opposite.
In the state of New Mexico there is the case of Vialpando v. Ben’s Automotive Services from 2014 where the New Mexico Court of Appeal authorised the reimbursement of medical marijuana. The plaintiff in this case suffered a lower back injury which resulted in him undergoing a number of surgical procedures. It was determined that the plaintiff had a 99 percent permanent partial disability. Moreover, one doctor even described the plaintiff's pain as “some of the most extremely high intensity, frequency, and duration of pain, out of all of the thousands of patients I’ve treated within my 7 years of practicing medicine.” At that time, the plaintiff was treating his pain with narcotic based pain relievers and anti-depressant medication. In April 2013, the plaintiff was granted approval by the worker’s compensation judge (WCJ) to treat his disability with medical cannabis. The plaintiff was qualified to participate in the medical cannabis program and the WCJ ordered the authorized medical marijuana to be reimbursed by the employer. The employer challenged this decision, but the Court of Appeal of New Mexico affirmed the order of the WCJ.
In the case of Hagar v M&K Construction, a New Jersey court ruled that workers’ compensation should cover medical marijuana. The respondent, M&K Construction argued that the CSA pre-empts the New Jersey Compassionate Use Medical Marijuana Act (MMA) because it is impossible to adhere to both statues. Furthermore, the respondent argued that the MMA violates the CSA because it requires the employer to help the employee obtain and possess an illegal substance. It was concluded that the order did not require M&K to “possess, manufacture or distribute marijuana”, they only had to reimburse the petitioner for their expenses.
In the Appeal of Andrew Panaggio, CNA Insurance Company stated that they could not reimburse Andrew Panaggio for his purchase of medical marijuana as it would have constituted as “aiding and abetting” a federal crime under the CSA. Panaggio argued that New Hampshire law unambiguously requires an insurer to pay for any of their claimant’s medically related treatment. In the end, the New Hampshire Supreme Court concluded that the CSA did not make it illegal for an insurer to reimburse an individual for their purchase of medical marijuana. In its reasoning the Court said that the “high threshold for pre-emption is not met here”. There seems to be a pattern among insurers throughout states as they all seem to make the same argument that reimbursement for medical marijuana violates the CSA.
The cases of Susan K. Musta, v. Mendota Heights Dental Center, et al. and Daniel Bierbach, v. Digger's Polaris, et al. are both from the Supreme Court of Minnesota where it was determined that the CSA would be violated if employers had to provide reimbursement for medical marijuana. From the state of Maine, the case of Bourgoin v. Twin Rivers Paper Co., LLC outlines the law regarding medical marijuana compensation. The plaintiff in this case was issued a permit to use medical marijuana to treat his pain after sustaining an injury while at work. He petitioned for the payment of medical and related services, but the defendant opposed the petition by arguing that an order mandating them to pay for the plaintiff’s medical marijuana would go against the CSA. The State Supreme Court held (1) there was a positive conflict between the federal and law and (2) the CSA did in fact pre-empt the Maine Medical Use of Marijuana Act (MMUMA).
With the U.S Supreme court’s decision to remain on the sidelines it leaves state courts to handle this issue. As demonstrated above, state courts are reaching different conclusions while the plaintiffs and defendants are making similar arguments. There is a clear conflict regarding workers’ compensation reimbursement of medical cannabis. Now would have been a good time for the Supreme Court to intervene as there is a lot of inconsistency. Moving forward, petitioners cannot expect or predict how the courts are going to rule as the interpretation of the law can vary from judge to judge. The only way this can be avoided is if the state has a clear controlling law on the reimbursement of medical marijuana for workers.
Kentish Ramasawmy I CansultEd Summer Intern