Think MDOLI has settled the issue? Think again.
By Sue Conley and Jeff Markowitz
There are times in the law when everyone thinks you’re wrong but you just can’t shake the feeling that you’re right. It is a bit jarring, and it can make you (quite reasonably) second-guess yourself. But you double- and triple-check your facts and the law, take a deep breath, and conclude, yes, I got this right.
We respectfully suggest that we are in that situation when it comes to whether, through the 2015 promulgated opioid rules, the Minnesota Department of Labor and Industry (MDOLI)—by defining medical marijuana that is used consistent with Minnesota law as not an “illegal substance”—made such medical marijuana reimbursable through Minnesota workers’ compensation.
Many attorneys in the workers’ compensation claimant bar, and some workers’ compensation judges, have concluded that MDOLI’s 2015 opioid rules authorized workers’ compensation reimbursement for medical marijuana.1 They point solely to Minnesota Rule 5221.6040, subpart 7a, which defines “illegal substance” as “a drug or other substance that is illegal under state or federal controlled substances law,” but excludes from that definition’s scope “a patient’s use of medical cannabis permitted under Minnesota Statutes, sections 152.22 to 152.37.” They conclude that, in so defining “illegal substance,” MDOLI was approving of courts requiring employers and their insurers to pay workers’ compensation benefits to cover such medical marijuana.
That conclusion is incorrect. The term “illegal substance” that Minn. R. 5221.6040, subp. 7a defines exists nowhere in the Minnesota Workers’ Compensation Act (WCA).2 It exists in only three places in the workers’ compensation treatment parameters, all of which appear in one rule—Minn. R. 5221.6110—that governs long-term use of opioids. The gist of “illegal substance” as defined in that context means that use of medical marijuana consistent with Minnesota law will not disqualify someone from receiving workers’ compensation benefits for opioids—an exception to the general disqualifying effect of using illegal substances while taking opioids.
Even if MDOLI had intended by that rule to authorize reimbursement for medical marijuana under workers’ compensation—it did not—such a rule would nonetheless be invalid. It would be beyond MDOLI’s rulemaking authority, given that possession of medical marijuana generally remains a federal crime under the Controlled Substances Act (CSA),3 and because the Minnesota Legislature—which gave MDOLI its rulemaking authority—cannot require others to aid, abet, or conspire in criminal violations of the CSA.
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