BONNIE BRANDIA, Employee/Appellant, v.  LKQ MINN., INC., and INDEM. INS. CO. OF N. AM., Employer-Insurer/Respondents.

The employee appeals the compensation judge’s denial of reimbursement for medical cannabis to relieve the employee’s pain symptoms.  As no error of law was made by the compensation judge and denial of reimbursement is preempted by federal law, we affirm.

On September 1, 2013, the employee, Bonnie Brandia, suffered an injury to her right elbow.  She underwent several medical treatments to alleviate her symptoms.  With those treatments failing to relieve her ongoing pain, the employee underwent a successful trial of a spinal cord stimulator (SCS), and the device was permanently implanted in April 2017.  In late 2017, another doctor suggested the employee try medical cannabis to obtain further pain relief and to discontinue the use of opioid medication.  The employee did so and obtained some relief of her chronic pain symptoms.

By Findings and Order served and filed on February 15, 2019, a compensation judge granted the employee's request for reimbursement of her out-of-pocket expenses associated with medical cannabis.  The compensation judge found that medical cannabis was reasonable and necessary care to treat the employee’s elbow injury.  The employer and insurer did not appeal this finding and reimbursed the employee for her medical cannabis expenses on an ongoing basis.^[1]

On October 13, 2021, the Minnesota Supreme Court issued decisions in Musta v. Mendota Heights Dental Ctr., 965 N.W.2d 312 (Minn. 2021) and Bierbach v. Digger’s Polaris, 965 N.W.2d 281 (Minn. 2021).^[2]  The supreme court concluded that the Controlled Substances Act (CSA), 21 U.S.C. §§ 801–971, preempted the obligation of an employer to reimburse an employee for medical cannabis under the Workers’ Compensation Act (WCA), Minn. Stat. Ch. 176.

The employee submitted a claim to the employer and insurer for reimbursement for medical cannabis purchased on October 15, 2021.  The employer and insurer refused payment on the basis of the holdings in Musta and Bierbach.

The employee filed a claim petition seeking payment of the denied reimbursement.^[3]  The employer and insurer moved to dismiss the claim.  The motion was heard by a compensation judge who concluded that the requested reimbursement was not compensable and was barred as matter of law under the holding in Musta.  The compensation judge dismissed the employee’s claim petition without prejudice.  The employee appeals.

On appeal, the Workers’ Compensation Court of Appeals must determine whether “the findings of fact and order [are] clearly erroneous and unsupported by substantial evidence in view of the entire record as submitted.”  Minn. Stat. § 176.421, subd. 1(3).  Substantial evidence supports the findings if, in the context of the entire record, “they are supported by evidence that a reasonable mind might accept as adequate.”  Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984).  Where evidence conflicts or more than one inference may reasonably be drawn from the evidence, the findings are to be affirmed.  Id. at 60, 37 W.C.D. at 240.  Similarly, findings of fact should not be disturbed, even though the reviewing court might disagree with them, “unless they are clearly erroneous in the sense that they are manifestly contrary to the weight of evidence or not reasonably supported by the evidence as a whole.”  Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).

A decision which rests upon the application of a statute or rule to essentially undisputed facts generally involves a question of law which the Workers’ Compensation Court of Appeals may consider de novo.  Krovchuk v. Koch Oil Refinery, 48 W.C.D. 607, 608 (W.C.C.A. 1993), summarily aff’d (Minn. June 3, 1993).

The employee contends that the compensation judge committed a number of errors by dismissing her claim petition.  Each contention will be addressed individually.

The employee asserts that the compensation judge committed an error of law by dismissing the claim petition as “there is a genuine issue of material fact as to whether the CBD-containing products appellant receives as part of her medical cannabis treatment should be reimbursable.”^[4]  The employer and insurer note that no evidence regarding the actual content of the medical cannabis was offered in response to the motion to dismiss.

The medical cannabis program, known as the THC Therapeutic Research Act (THC Act), Minn. Stat. §§ 152.21–.37 (2020), was determined in Musta to distribute substances that fall under Schedule 1 of the CSA.^[5]  The medical cannabis for which reimbursement was sought in this case was obtained under the THC Act.  The holding in Musta states: “the CSA preempts an order made under Minn. Stat. § 176.135, subd. 1, that obligates an employer to reimburse an employee for the cost of medical cannabis … .”^[6]  Further, neither the compensation judge nor this court has jurisdiction to determine the scope of what is prohibited under the CSA.^[7]  As medical cannabis is the subject of the employee’s claim for reimbursement, the preemption of reimbursement applies here.  No error of law was committed by the compensation judge in declining to consider the employee’s argument regarding the CBD content of the medical cannabis obtained by the employee.

The employee maintains that applying the Minnesota Supreme Court decision in Musta to dismiss a claim petition that arose from an unappealed findings and order is improperly retroactive.  To give effect to Musta, the employee claims, a petition to vacate is required.  The employer and insurer responded that the normal approach in workers’ compensation was for cases to have retroactive effect.^[8]

Under the facts of this case, there is no retroactive effect of the Musta decision.  The preemption in Musta goes only to compelling reimbursement from an employer and insurer.  As Musta was decided on October 13, 2021, the medical cannabis at issue here was purchased on October 15, 2021, and the claim for this purchase was subsequently denied, Musta was plainly applied prospectively.^[9]

The employee asserts that a petition to vacate is required to relieve the employer and insurer of their obligation to pay for medical cannabis.  We disagree.  Nothing has changed regarding the underlying relationship between the parties and the employee’s need for, and benefit from, medical cannabis.  The only change is the determination that a federal statute preempts the employer and insurer’s obligation to pay for medical cannabis.  As Musta plainly states, the employer and insurer cannot be compelled under Minn. Stat. § 176.135, subd. 1, to pay for medical cannabis.  The preemption of the obligation for payment supersedes the requirements of the workers’ compensation system and no petition to vacate is required of the employer and insurer.

The employee asserts that the compensation judge erred by not following the doctrines of res judicata and collateral estoppel in this matter.  As discussed above, the underlying relationship was not in any way affected by federal preemption of the employer and insurer’s obligation to pay for medical cannabis.  No underlying finding as to the need for and reasonableness of medical cannabis for relief of the employee’s symptoms was directly intruded upon by the determination that the employer and insurer cannot be compelled to pay for medical cannabis.  The compensation judge acknowledged this by dismissing the employee’s claim without prejudice. The compensation judge did not commit an error of law in this case.

The appellant asserts that the stare decisis effect of a decision can be nullified if five factors are met.^[10]  As this argument seeks to void the Minnesota Supreme Court’s holding in Musta for various reasons, the argument cannot be considered by this court.  See Hutto v. Davis, 454 U.S. 370, 374-75, 102 S.Ct. 703, 706 (1982) (precedent to be followed by inferior courts); see also Quam v. State of Minn., Minn. Zoological Garden, 391 N.W.2d 803, 39 W.C.D. 32 (Minn. 1986) (functions solely within the judicial province cannot be assumed by an agency tribunal without violating constitutional principles of separation of powers).  The issue is preserved for appeal to the Minnesota Supreme Court, should one be taken.

For all the reasons stated above, the compensation judge’s order is affirmed.