DANIEL BIERBACH, Employee/Respondent,
v.
DIGGER’S POLARIS and STATE AUTO/UNITED FIRE amp; CAS. GRP., Employer-Insurer/Appellants.
No. WC19-6314
Minnesota Workers Compensation
Workers’ Compensation Court of Appeals
November 10, 2020
JURISDICTION
– SUBJECT MATTER. The compensation judge had subject
matter jurisdiction under Minnesota law to determine whether
the employee was entitled to reimbursement for medical
cannabis. This court declines to rule on whether the
Minnesota medical cannabis laws are preempted by federal
criminal statutes.
MEDICAL
TREATMENT & EXPENSE – REASONABLE & NECESSARY.
Substantial evidence, including medical records, expert
medical opinion, and lay testimony supports the award
reimbursing costs incurred by the employee for medical
cannabis as reasonable and necessary treatment for
intractable pain caused by the employee’s work injury.
Michael G. Schultz, Sommerer & Schultz, Minneapolis,
Minnesota, for the Respondent.
Susan
K.H. Conley and Jeffrey M. Markowitz, Arthur, Chapman,
Ketterling, Smetak & Pikala, P.A., Minneapolis,
Minnesota, for the Appellants.
Charles A. Bird, Danielle T. Bird, Bird, Jacobsen &
Stevens, 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.
Determined by: Deborah K. Sundquist, Judge Patricia J. Milun,
Chief Judge David A. Stofferahn, Judge Gary M. Hall, Judge
Sean M. Quinn, Judge
Compensation Judge: William J. Marshall
Affirmed.
OPINION
DEBORAH K. SUNDQUIST, Judge.
The
employer and insurer appeal the compensation judge’s
award of reimbursement for costs incurred by the employee for
medical cannabis used to treat his work-related injury. We
affirm.
BACKGROUND
In
2004, Daniel Bierbach, the employee, was at work for his
employer, Digger’s Polaris, when an ATV he was
operating rolled, landing on his ankle. The employer and its
insurer admitted liability. The employee sought care with J.
Chris Coetzee, M.D., an orthopedic surgeon with a
sub-specialty in foot and ankle surgery, who diagnosed
fractures of the distal tibial pilon and fibula. A few weeks
after the injury, the employee underwent surgery. A year post
surgery, the employee continued to walk with a limp and had
significant swelling of his ankle.
Physical
therapy was prescribed, and the employee incorporated its
recommended exercises in his regular gym routine and wore an
ankle brace. By 2007, he reported a return to his normal
activity level but continued to experience intermittent pain
and swelling. Three years later, his symptoms worsened, and
he again saw Dr. Coetzee, who noted the need for an ankle
fusion. Due to the employee’s young age, however, Dr.
Coetzee wanted to postpone ankle fusion surgery for as long
as possible.
In
April 2013, the employee filed a claim petition alleging a
consequential neck and back injury. In 2014, the parties
settled the employee’s claims for workers’
compensation benefits and closed out some medical expenses,
which included opioids/narcotic therapy, psychiatric and
psychological treatment, mental health, health clubs,
implantable stimulators, and future chronic pain management.
(Ex. 33.)
The
employee underwent a series of injections in 2017, but by
2018, he had developed progressive degenerative changes in
the left ankle and was limited in his activities of daily
living. He continued to gain weight due to his inability to
exercise. On June 13, 2018, Dr. Coetzee opined that the
employee was a candidate for medical cannabis to help with
his intractable pain and to wean him off narcotic pain
medication.
The
employee’s application for the Minnesota medical
cannabis registry1 was submitted to and accepted by the
Minnesota Department of Health (MDH). The employee was
referred to Leafline, a manufacturer of medical cannabis, for
evaluation and distribution of medical cannabis. A registered
pharmacist with Leafline recommended two types of medical
cannabis oil, “tangerine” for nighttime use due
to the employee’s pain at night and
“cobalt” for day to day activity. The employee
placed the oil in a device allowing him to inhale the oil as
a vapor. The employee met with a Leafline professional to
discuss his mental and physical response...
