Month: November 2021

MN Supreme Court rules on medical cannabis in work comp

Posted on by Alyssa Rass

By Peter F. Lindquist, Esq. Defense Counsel with Lynn Scharfenberg and Hollick

The Minnesota Supreme court issued two companion decisions on October 13, 2021 – Musta v. Mendota Heights Dental Center, and Bierbach v. Digger’s Polaris – addressing a burning question on the minds of many in the Minnesota workers’ compensation world: Can an employer and insurer be required to pay for an injured worker to treat their work-related condition with the use of medical cannabis, even if the use of medical cannabis is prohibited by federal law?

In these cases, the Minnesota Supreme Court answered “No.” Due to issues of “federal preemption,” Minnesota employers and workers’ compensation insurers cannot be compelled to violate the federal Controlled Substances Act by providing for an employee’s use of medical cannabis, even if use of medical cannabis a is legal under the Minnesota Medical Cannabis Therapeutic Research Act.

By way of background, the employees in both Bierbach and Musta had been certified to treat their work-related injuries with medical cannabis by their treating doctors. That treatment was unsuccessfully disputed by the employer and insurer in the Bierbach case, but reasonableness and causal relationship was stipulated to in the Musta case. The primary issue in both cases was the federal preemption defense. The compensation judges in both cases found that the Minnesota Medical Cannabis Therapeutic Research Act was not preempted by the federal Controlled Substances Act.

On appeal, the Workers’ Compensation Court of Appeals determined that they did not have jurisdiction to decide issues relating to the applicability of federal laws and could not decide the federal preemption issues. They therefore upheld the award of medical cannabis in both cases.

The Minnesota Supreme Court noted that the compensation judges’ order made it impossible for the employers and insurers to comply with both state and federal laws. The Court reasoned that ordering the insurers to reimburse for medical cannabis was tantamount to requiring them to aid and abet the commission of a federal crime. Because the Supremacy Clause of the US Constitution states that when “there is any conflict between federal and state law, federal law shall prevail,” the Court ruled that the compensation judge’s order is preempted by the federal law and reversed the appeals court and compensation judge’s award of reimbursement for medical cannabis.

These decisions create a new bright-line rule regarding the compensability of medical cannabis in workers’ compensation claims. Following to these decisions, insurers now have an almost absolute basis to deny a request to reimburse expenses for medical cannabis, as they cannot be required to violate federal law. This applies even if the treatment with medical cannabis is found reasonable and necessary from a medical provider.

The employees in both cases have the right to appeal these decisions to the U.S. Supreme Court, and as of the writing of this article it appears that they are likely to do so. It will be some time before there is any indication as to whether the Supreme Court decides to hear the appeal. Unless the U.S. Supreme Court overturns the Minnesota Supreme Court’s decisions, the only remaining means for the federal preemption defense to be changed or limited would be for U.S. Congress to pass, and the President to sign, legislation modifying the Controlled Substances Act.

Given how divided the federal government and nation have been on the issue of marijuana legalization, I do not think we should expect for there to be any change in this manner for the foreseeable future.

Click here to read the Supreme Court’s decision in Musta v. Mendota Heights Dental Center

Click here to read the Supreme Court’s decision in Bierbach v. Digger’s Polaris.

 

When is PTSD covered by workers’ compensation?

Posted on by Patty Busse

When an employee experiences a traumatic event at work, workers’ compensation coverage is probably the last thing on your mind. But knowing how post-traumatic stress disorder is defined and covered in your state can help you make sure your employee gets needed help.

For PTSD to be covered by workers’ compensation, it must meet the criteria as described in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders, and be diagnosed by a psychologist or psychiatrist.

By definition, symptoms must last or start a month or more after the event to be considered PTSD. Symptoms that last less than a month are considered acute stress disorder. This nuance is important when it comes to how different states handle PTSD claims.

Some states specifically address PTSD in their workers’ compensation laws. In other states, whether PTSD is covered depends on what caused it and whether the state recognizes that event as a work injury.

If the event that led to PTSD was physical, most states will recognize that as a physical/mental injury (that is, a mental injury caused by physical injury) and treatment for PTSD will be compensable. If the employee was involved in a traumatic event, but there was no physical injury, some states may not recognize PTSD as a claim. This is referred to as a mental/mental injury.

Here are the specifics on PTSD in SFM’s core states:

  • Minnesota
    PTSD is specifically addressed in the statute. If an employee is diagnosed with PTSD by a licensed physician or psychologist and the employee meets the Diagnostic and Statistical Manual of Mental Disorders criteria, the claim is covered by workers’ compensation benefits. This is the only type of mental/mental claim recognized in Minnesota. If PTSD is diagnosed as arising from a physical injury, that would be compensable in Minnesota as a physical/mental claim.

    For injuries occurring after January 1, 2019, it will be a presumption that PTSD in first responders is compensable under workers’ compensation, absent preexisting history and limited statutory exceptions. PTSD claimed due to job performance issues, such as demotions and layoffs, is not compensable.

  • Wisconsin
    PTSD is not specifically addressed in the statute. Mental/mental injuries can potentially be compensable if the circumstances causing the injury arise from extraordinary stress. It must be a far greater stress than the expected emotional strain that employees encounter daily without serious mental injury.
  • Iowa
    Mental/mental injuries are recognized, but in order to be compensable under Iowa law, the work condition and circumstances lead­ing to the mental condition must exceed that which is typically experienced by peers in that same profession. PTSD may be compensable without any physical injury to the body under these circumstances.
  • Nebraska
    Mental/mental injuries are not compensable in Nebraska, so a diagnosis of PTSD without any physical injury would typically not be covered. If there is a physical injury to the body and PTSD is a condition that is a result of that injury, it could be compensable as a physical/mental injury.

    However, first responders are an exception. PTSD could be compensable as a mental/mental injury for first responders who are exposed to extraordinary and un­usual stimuli in comparison to normal conditions of their employment. Nebraska statute defines first responders as sheriffs, deputy sheriffs, police officers, state patrol troopers, volunteer or paid firefighters, emer­­gency medical technicians and paramedics.

  • South Dakota
    South Dakota does not cover mental/mental injuries. There must be a physical injury to the body. If an employee sustains a physical injury and claims PTSD as a consequential injury, then it could be compensable.

Intervene early to help employees who’ve experienced trauma

Although PTSD cannot be diagnosed until 30 days after a traumatic event, you shouldn’t wait that long to reach out to your employee. Early intervention can prevent situational anxiety from progressing to PTSD. Encourage any employee who may be susceptible to seek help through your employee assistance program, SFM’s Injured Worker and Family Assistance Program or from a psychologist or psychiatrist.

“If someone has experienced trauma, be it physical or mental, coping skills for them to be more resilient so they can manage their stress and anxiety is what’s going to get them better,” said Director of Medical Services Ceil Jung, RN, BSN, CCM. “Treatment is typically cognitive behavioral therapy (CBT). Symptoms can usually be effectively managed to restore the individual to normal functioning.”

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