Will the Supreme Court review hygienist’s marijuana case?

By Melissa Busch, DrBicuspid.com associate editor

May 27, 2022 -- The U.S. Department of Justice (DOJ) is imploring the U.S. Supreme Court not to review decisions denying workers’ compensation reimbursement for medical marijuana prescribed for job-related injuries, including one case involving a Minnesota dental hygienist.

In November 2021, dental hygienist Susan Musta, who was injured while working at Mendota Heights Dental Center in Minnesota, petitioned the U.S. Supreme Court to review her case. The Minnesota Supreme Court ruled against workers' compensation for medical marijuana for Musta, stating it would place the dental center at risk of aiding and abetting unlawful possession of the substance. The ruling overturned two lower state court decisions.

In February, the U.S. Supreme Court requested that the DOJ weigh in on Musta's case and another case from a worker at an all-terrain vehicle company before it decided to review them, according to a brief filed May 16 by the DOJ.

The DOJ stated that the highest U.S. court should deny the petitions filed by Musta and all-terrain vehicle company employee Daniel Bierbach because the U.S. Controlled Substances Act (CSA) preempts Minnesota's laws, and marijuana has "no currently accepted medical use in treatment," according to the brief.

Now, Musta and Bierbach wait for the U.S. Supreme Court's response to their petitions.

Workplace injury leads to court case

In 2003, Musta, an employee at Mendota Heights Dental Center, injured her cervical spine when she tried to catch an elderly patient who was falling. Despite undergoing surgery that same year, as well as taking a variety of different prescription pain medications, Musta was left with "unrelenting pain."

She spent 16 years in pain. In 2019, the Minnesota Commissioner of Health approved the use of medical marijuana for chronic pain. Musta applied to and was approved for the state's cannabis program, according to her petition.

Musta requested reimbursement from Mendota Heights Dental Center via its workers' compensation insurance company, Hartford Insurance Group, for the cost of medical marijuana. Though her employer and the insurer stipulated that the medical marijuana was "reasonable, necessary, and causally related treatment for her work injury," they asserted that the Controlled Substances Act preempted an order requiring reimbursement for the substance, according to Musta's petition.

Musta filed a claim against her employer and the insurance company. Lower state courts ruled that she should be reimbursed, but the Minnesota Supreme Court overturned that ruling.

Plea to the Supreme Court

Musta's petition to the U.S. Supreme Court noted that state supreme courts have been split on workers' compensation medical marijuana cases. The high courts in New Jersey and New Hampshire ruled that the CSA doesn't preempt their workers' compensation laws. However, as in Minnesota, Maine's high court reached the opposite conclusion.

The DOJ brief concluded in favor of the Minnesota and Maine high courts. Solicitor General Elizabeth Prelogar and her colleagues wrote that the decisions "are correct for the straightforward reason that when a federal law such as the CSA prohibits possession of a particular item, it preempts a state law requiring a private party to subsidize the purchase of that item."

While the DOJ advised the U.S. Supreme Court against hearing Musta's and Bierbach's cases, it didn't settle the issue of worker's compensation for medical marijuana entirely. The DOJ acknowledged that U.S. lawmakers and the president may be the best to address issues related to marijuana. In 2018, the definition of marijuana changed under the CSA when U.S. lawmakers legalized hemp, and lawmakers continue to consider more expansive approaches to the substance, according to the brief.

"The Legislative and Executive Branches of the federal government are best situated to consider any potential tailored measures to address specific instances of interaction between federal and state marijuana laws," Prelogar and colleagues wrote.


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