Wholly smoke: Insurers fight demand they pay for medical marijuana

Barack Obama smoking in his youth

Changing marijuana from an illegal drug into a huge American industry making millions of dollars off of consumers demanding the product didn’t take long.

It was illegal to have and use just a few years ago. Now multiple states have decriminalized it completely.

But the federal government hasn’t gone along, and that’s created a number of court cases, the latest in Minnesota.

Courthouse News has profiled how the state has made pot products legal, and so two injured employees wanting relief from their pain explain they should not only be allowed to use it, but their workers’ compensation insurance companies should pay for it.

The companies argue that since pot remains illegal under federal law, to provide the product to injured workers would force them into the position of aiding and abetting a federal crime.

States, so far, are divided on the issue, with a majority where marijuana is legal holding that that status doesn’t mean just anything is allowed. In Colorado, a worker was fired by his employer for failing a drug test, after having used marijuana off-duty.

The state Supreme Court said the employer was allowed to do that, since using it is not “lawful” under federal law.

Courthouse News reported the Minnesota Supreme Court this week heard oral arguments brought by workers Susan Musta and Daniel Bierbach.

A decision is expected in the coming weeks.

Bill Hart, a lawyer for Hartford Insurance Group, explained, “If you look at what they’re doing, and you look at it as an independent act, and you ask the question ‘what did you plan to use this money… for?’ There’s no question that they’re using it to facilitate the possession of cannabis.”

The other insurance company involved is United Fire & Casualty Group.

Its lawyers argued that while Congress halted federal prosecutions, insurance companies remain protected from having to pay for it.

“Congress is saying that it’s their policy not to have prosecutions, but remember the test for conflict preemptions is whether the party can comply without violating federal law. The court is called on to decide whether the actor can comply with federal law, not whether they can be prosecuted for noncompliance,” Hart said.

Attorneys for the workers argued the opposite.

Cheri Sisk, representing Musta, said, “If my client is the one who purchased and possessed the marijuana, then she can be charged under the Controlled Substance Act. The employer is not performing an act forbidden under the Controlled Substance Act.”

A lawyer for United Fire said, “We have a broad duty to reimburse under the Workers’ Compensation Act, of course it’s broad. I don’t think that the Minnesota Legislature ever thought that the WCA would be applied to an illegal substance under the Controlled Substances Act.”

Keith Ellison, the state’s attorney general, joined the arguments and warned that a court ruling “invalidating the medical cannabis laws,” would cause disruptions for many Minnesotans.

His office’s brief charged, “To be prosecuted for aiding and abetting, a federal prosecutor would have to ignore black letter law that one cannot aid and abet a completed crime, ignore that [Hartford and Musta’s employers] do not have the required specific intent to facilitate the crime, and would also have to violate congressional funding directives.”

The state’s laws allow for the use of cannabis for chronic or intractable pain. It is one of six states that allow, at least in part, for workers’ comp reimbursement for the drug. Nearly two dozen other states allow medical marijuana but exempt insurers from paying for it.

Recently, Massachusetts’ Supreme Court ruled that workers’ compensation carriers are not required to pay for it in that state.

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This article was originally published by the WND News Center.

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