Bierbach v. Digger's Polaris

• Decision Date: 13 October 2021
• Docket Number: A20-1525
• Court: Supreme Court of Minnesota (US)
• Parties: Daniel Bierbach, Respondent, v. Digger's Polaris, and State Auto/United Fire & Casualty Group, Relators.

Daniel Bierbach, Respondent,
v.
Digger's Polaris, and State Auto/United Fire & Casualty Group, Relators.

No. A20-1525

Supreme Court of Minnesota

October 13, 2021

Office of Appellate Courts

Michael G. Schultz, Sommerer & Schulz, PLLC, Minneapolis, Minnesota, for respondent.

Susan K.H. Conley, Jeffrey M. Markowitz, Arthur, Chapman, Kettering, Smetak & Pikala, P.A., Minneapolis, Minnesota, for relators.

Charles A. Bird, Grant M. Borgen, Danielle T. Bird, Bird, Stevens & Borgen, P.C., Rochester, Minnesota, for amicus curiae Minnesota Association for Justice.

Beth A. Butler, Kristine L. Cook, Peterson, Logren & Kilbury, P.A., Roseville, Minnesota, for amicus curiae Minnesota Defense Lawyers Association.

SYLLABUS

1. Because resolving a claim asserting that a conflict exists between federal law that prohibits cannabis possession and state law that requires an employer to pay for an injured employee's reasonable and necessary medical treatment would require the Workers Compensation Court of Appeals to interpret and apply federal law, that court lacks subject matter jurisdiction to decide the preemption issue presented by that claim.

2. The prohibition in the Controlled Substances Act, 21 U.S.C. §§ 801-971, on the possession of cannabis preempts an order made under Minnesota's workers' compensation law, Minn. Stat. § 176.135, subd. 1 (2020), that requires an employer to reimburse an injured employee for the cost of medical cannabis used to treat a work-related injury.

OPINION

ANDERSON, JUSTICE

In 2004, respondent Daniel Bierbach suffered a work-related ankle injury while working for his employer, relator Digger's Polaris. Eventually, Bierbach was diagnosed with intractable pain and enrolled in Minnesota's medical cannabis research program. See Minn. Stat. §§ 152.21-.37 (2020). He then filed a claim petition, seeking reimbursement from his former employer for the cost of the medical cannabis. The compensation judge granted the petition. The Workers' Compensation Court of Appeals (WCCA) affirmed. Bierbach v. Digger's Polaris, No. WC19-6314, slip op. at 2 (Minn. WCCA Nov. 10, 2020).

On appeal to our court, relators Digger's Polaris and State Auto/United Fire & Casualty Group raise four issues. First, did the WCCA correctly conclude that it lacks subject matter jurisdiction to decide arguments that require interpreting federal law, including a question of preemption? Second, does the federal Controlled Substances Act (CSA), 21 U.S.C. §§ 801-971, preempt the requirement in Minnesota law for an employer to reimburse an injured employee for the cost of medical treatment, Minn. Stat. § 176.135, subd. 1(a) (2020), when the treatment for which payment is sought is medical cannabis? Third, does the expert opinion relied on by the workers' compensation judge lack foundation? Fourth, is medical cannabis reasonable and necessary to treat Bierbach's pain?

We addressed the same questions of jurisdiction and preemption in a companion case, Musta v. Mendota Heights Dental Center, A20-1551 (Minn. Oct. 13, 2021). For the reasons stated in that opinion, we hold that the WCCA lacks jurisdiction to decide whether federal law preempts Minnesota law that requires an employer to furnish medical treatment when the treatment for which reimbursement is sought is medical cannabis. We also hold that the CSA preempts the compensation court's order mandating relators to pay for Bierbach's medical cannabis. Because these holdings resolve this dispute, we do not reach the remaining issues.

For the foregoing reasons, we reverse the decision of the Workers' Compensation Court of Appeals.

Reversed.

CONCURRENCE & DISSENT

CHUTICH, Justice (concurring in part, dissenting in part).

For the reasons set forth in my concurrence and dissent in Musta v. Mendota Heights Dental Center, No. A20-1551, slip. op. at C/D-1 (Minn. Oct. 13, 2021) (Chutich, J., concurring in part, dissenting in part), I join in the court's decision that the Workers' Compensation Court of Appeals (WCCA) lacks subject matter jurisdiction to decide whether federal law preempts state workers' compensation law, Minn. Stat. § 176.135, subd. 1(a) (2020), to the extent that the state law requires an employer to reimburse an employee for the purchase of medical cannabis. But I respectfully dissent from the court's holding that the federal Controlled Substances Act, 21 U.S.C. §§ 801-971, preempts section 176.135 to the extent that this Minnesota law requires an employer to reimburse an employee for the purchase of medical cannabis.

Because I would hold that section 176.135 is not preempted by federal law, I would reach the remaining issues, which were not present in Musta.^[1] I conclude that the opinion of respondent Daniel Bierbach's treating physician, Dr. Coetzee, has adequate foundation, and that substantial evidence supports the findings of the compensation judge-both that medical cannabis can be a reasonable and necessary treatment for intractable pain and that it was reasonable and necessary in Bierbach's case. Because the court's decision overextends the preemptive scope of the Controlled Substances Act and denies Bierbach treatment that is reasonable, necessary, and crucial to keeping him meaningfully employed, I respectfully dissent.

I.

I begin with an overview of the state's medical cannabis program and then explain the facts giving rise to this dispute.

A.

The Legislature has established a research program to study the benefits of medical cannabis for people with certain painful conditions. Minn. Stat. § 152.21, subd. 1 (2020) ("The intent of this section is to establish an extensive research program to investigate and report on the therapeutic effects of THC under strictly controlled circumstances . . . ."). The statutes governing the program, Minn. Stat. §§ 152.21-.37 (2020), are called the THC Therapeutic Research Act (THC Act). Minn. Stat. § 152.21, subd. 7.

Patients who are enrolled in the state's program are permitted to obtain and use medical cannabis without criminal liability under state law. Minn. Stat. § 152.32. But medical cannabis possession and use remains prohibited under federal law. 21 U.S.C. § 812.

To enroll in the state's medical cannabis program, a patient must submit an application, signed disclosure, and application fee. Minn. Stat. § 152.27, subd. 6(a). The application must include a certification from the patient's health care provider that the patient is diagnosed with a qualifying medical condition. Id., subd. 3(a)(4). Effective in 2016, the Commissioner of Health approved "intractable pain" as a qualifying condition. 45 Minn. Reg. 1299 (June 14, 2021); see also Minn. Stat. § 152.22, subd. 14(10) (permitting the commissioner to approve new qualifying conditions).

To remain enrolled in the program, a patient must submit a doctor's certification annually, Minn. Stat. § 152.27, subd. 3(b), and pay the annual fee. The patient may only obtain medical cannabis from one of two registered manufacturers, see Minn. Stat. § 152.25, subd. 1(a) (requiring the commissioner to register two in-state manufacturers).

B.

With that overview, I turn to the facts of the case. On April 7, 2004, respondent Daniel Bierbach suffered a work-related ankle injury when the ATV he was driving rolled over. At the time of the accident, he was 25 years old and employed by Digger's Polaris.^[2]

Bierbach underwent surgery on his left ankle, performed by Dr. J. Chris Coetzee. After the surgery, he engaged in physical therapy. He also took opioids for a short time but weaned himself off them. Over the next 15 years, under the guidance of Dr. Coetzee and other health care professionals, Bierbach used various techniques to manage the pain as his ankle slowly deteriorated. Those treatments included an ankle brace, compression icing, cortisone ankle injections, an ankle boot, and over-the-counter anti-inflammatory medications. Dr. Coetzee has also stated that Bierbach would likely need an ankle replacement in the future, but that he is currently too young for such a procedure.

In April 2018, Dr. Coetzee certified Bierbach as having intractable pain.^[3] He was approved to participate in the state's medical cannabis program, and he began purchasing medical cannabis from one of the registered cannabis manufacturers. The manufacturer's records show that, between April 2018 and February 2019, Bierbach's dosage more than doubled. The dosage was increased to "reflect [his] current use," and to help him manage the pain from increased activity, including Bierbach's return to full-time work. According to those records, he was not able to afford as much medical cannabis as he needed and on at least one occasion, he had to wait several weeks after running out before purchasing a refill. Bierbach reported getting good daytime relief, completing more yardwork at home, and sleeping better. The total cost of his current dosage plan is about $1, 860 per month.

The opinions of two experts were admitted as evidence. In his June 2018 letter, Dr. Coetzee stated that Bierbach continued to develop progressive degenerative changes in his ankle following his work injury; he was doing reasonably well, but not great, with the ankle injections. Dr. Coetzee observed that Bierbach's ankle continued to be very sore and swollen with or without activity, that he walked with a limp, and that he was limited in his daily activity and continued to gain weight because he could not exercise without pain. Consequently, Dr. Coetzee opined that Bierbach would be a great candidate for medical cannabis "to help with his intractable pain and wean off of narcotic pain medication."

In February 2019, Dr. Christopher Meyer issued an independent medical examination report. Dr. Meyer documented substantial swelling of Bierbach's left ankle and agreed that he had chronic left ankle pain related to his degenerative joint disease resulting from his work-related...