Workers’ Compensation Court of Appeals Anderson, J. Concurring in part, dissenting in part, Daniel Bierbach, Chutich, J.

1
STATE OF MINNESOTA

IN SUPREME COURT

A20-1525

Workers’ Compensation Court of Appeals Anderson, J.
Concurring in part, dissenting in part,
Daniel Bierbach, Chutich, J.

Respondent,
Filed: October 13, 2021
vs. Office of Appellate Courts

Digger’s Polaris,

and

State Auto/United Fire & Casualty Group,

Relators.

________________________

Michael G. Schultz, Sommerer & Schulz, PLLC, Minneapolis, Minnesota, for respondent.

Susan K.H. Conley, Jeffrey M. Markowitz, Arthur, Chapman, Kettering, Smetak & Pikala,
P.A., Minneapolis, Minnesota, for relators.

Charles A. Bird, Grant M. Borgen, Danielle T. Bird, Bird, Stevens & Borgen, 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 Association.
________________________

S Y L L A B U S
1. Because resolving a claim asserting that a conflict exists between federal law
that prohibits cannabis possession and state law that requires an employer to pay for an

2
injured employee’s reasonable and necessary medical treatment would require the Workers
Compensation Court of Appeals to interpret and apply federal law, that court lacks subject
matter jurisdiction to decide the preemption issue presented by that claim.
2. The prohibition in the Controlled Substances Act, 21 U.S.C. §§ 801–971, on
the possess ion of cannabis preempts an order made under Minnesota’s workers’
compensation law, Minn. Stat. § 176.135, subd. 1 (2020), that requires an employer to
reimburse an injured employee for the cost of medical cannabis used to treat a work-related
injury.
Reversed.
O P I N I O N
ANDERSON, Justice.
In 2004, respondent Daniel Bierbach suffered a work -related ankle injury while
working for his employer, relator Digger’s Polaris. Eventually, Bierbach was diagnosed
with intractable pain and enrolled in Minnesota’s medical cannabis research program. See
Minn. Stat. §§ 152.21–.37 (2020). He then filed a claim petition, seeking reimbursement
from his former employer for the cost of the medical cannabis. The compensation judge
granted the petition. The Workers’ Comp ensation Court of Appeals (WCCA) affirmed.
Bierbach v. Digger’s Polaris, No. WC19-6314, slip op. at 2 (Minn. WCCA Nov. 10, 2020).
On appeal to our court, relators Digger’s Polaris and State Auto/United Fire &
Casualty Group raise four issues. First, did the WCCA correctly conclude that it lacks
subject matter jurisdiction to decide arguments that require interpreting federal law,
including a question of preemption? Second, does the federal Controlled Substances Act

3
(CSA), 21 U.S.C. §§ 801–971, preempt the requirement in Minnesota law for an employer
to reimburse an injured employee for the cost of medical treatment, Minn. Stat. § 176.135,
subd. 1(a) (2020), when the treatment for which payment is sought is medical cannabis?
Third, does the expert opini on relied on by the workers’ compensation judge lack
foundation? Fourth, is medical cannabis reasonable and necessary to treat Bierbach’s pain?
We addressed the same questions of jurisdiction and preemption in a companion
case, Musta v. Mendota Heights Dental Center, A20-1551 (Minn. Oct. 13, 2021). For the
reasons stated in that opinion, we hold that the WCCA lacks jurisdiction to decide whether
federal law preempts Minnesota law that requires an employer to furnish medical treatment
when the treatment for which reimbursement is sought is medical cannabis. We also hold
that the CSA preempts the compensation court’s order mandating relators to pay for
Bierbach’s medical cannabis. Because these holdings resolve this dispute, we do not reach
the remaining issues.
For the foregoing reasons, we reverse the decision of the Workers’ Compensation
Court of Appeals.
Reversed.

C/D-1
C O N C U R R E N C E & D I S S E N T
CHUTICH, Justice (concurring in part, dissenting in part).
For the reasons set forth in my concurrence and dissent in Musta v. Mendota Heights
Dental Center , No. A20 -1551, slip. op. at C/D -1 (Minn. Oct. 13, 2021 ) (Chutich, J.,
concurring in part, dissenting in part), I join in the court’s dec ision that the Workers’
Compensation Court of Appeals (WCCA) lacks subject matter jurisdiction to decide
whether federal law preempts state workers’ compensation law, Minn. Stat. § 176.135,
subd. 1(a) (2020), to the extent that the state law requires an em ployer to reimburse an
employee for the purchase of medical cannabis. But I respectfully dissent from the court’s
holding that the federal Controlled Substances Act, 21 U.S.C. §§ 801–971, preempts
section 176.135 to the extent that this Minnesota law requires an employer to reimburse an
employee for the purchase of medical cannabis.
Because I would hold that section 176.135 is not preempted by federal law, I would
reach the remaining issues, which were not present in Musta.1 I conclude that the opinion
of respondent Daniel Bierbach’s treating physician, Dr. Coetzee, has adequate foundation,
and that substantial evidence supports the findings of the compensation judge —both that
medical cannabis can be a reasonable and necessary treatment for intractable pain and that
it was reasonable and necessary in Bierbach’s case . Because the court’s decision
overextends the preemptive scope of the Controlled Substances Act and denies Bierbach

1 In Musta, the parties stipulated that medical cannabis was reasonable and necessary
to treat the employee’s pain. Musta, slip op. at 4. Consequently, only the preliminary
question of WCCA jurisdiction and the issue of preemption were before us in that case.

C/D-2
treatment that is reasonable, necessary, and crucial to keeping him meaningfully employed,
I respectfully dissent.
I.
I begin with an overview of the state’s medical can nabis program and then explain
the facts giving rise to this dispute.
A.
The Legislature has established a research program to study the benefits of medical
cannabis for people with certain painful conditions. Minn. Stat. § 152.21, subd. 1 (2020)
(“The intent of this section is to establish an extensive research program to investigate and
report on the therapeutic effects of THC under strictly controlled circumstances . . . .”).
The statutes governing the program, Minn. Stat. §§ 152.21-.37 (2020), are called the THC
Therapeutic Research Act (THC Act). Minn. Stat. § 152.21, subd. 7.
Patients who are enrolled in the state’s program are permitted to obtain and use
medical cannabis without criminal liability under state law. Minn. Stat. § 152.32. But
medical cannabis possession and use remains prohibited under federal law. 21 U.S.C.
§ 812.
To enroll in the state’s medical cannabis program, a patient must submit an
application, signed disclosure, and application fee. Minn. Stat. § 152.27, subd. 6(a). The
application must include a certification from the patient’s health care provider that the
patient is diagnosed with a qualifying medical condition. Id., subd. 3(a)(4). Effective in
2016, the Commissioner of Health approved “intractable pain” as a qualifyi ng condition.

C/D-3
45 Minn. Reg. 1299 (June 14, 2021); see also Minn. Stat. § 152.22, subd. 14(10)
(permitting the commissioner to approve new qualifying conditions).
To remain enrolled in the program, a patient must submit a doctor’s certification
annually, Minn. Stat. § 152.27, subd. 3(b), and pay the annual fee. The patient may only
obtain medical cannabis from one of two registered manufacturers, see Minn. Stat.
§ 152.25, subd. 1(a) (requiring the commissioner to register two in-state manufacturers).
B.
With that overview, I turn to the facts of the case. On April 7, 2004, respondent
Daniel Bierbach suffered a work-related ankle injury when the ATV he was driving rolled
over. At the time of the accident, he was 25 years old and employed by Digger’s Polaris.2
Bierbach underwent surgery on his left ankle, performed by Dr. J. Chris Coetzee.
After the surgery, he engaged in physical therapy. He also took opioids for a short time
but weaned himself off them. Over the next 15 years, under the guidance of Dr. Coetzee
and other health care professionals, Bierbach used various techniques to manage the pain
as his ankle slowly deteriorated. Those treatments included an ankle brace, compression
icing, cortisone ankle injections, an ankle boot, and over -the-counter anti-inflammatory
medications. Dr. Coetzee has also stated that Bierbach would likely need an ankle
replacement in the future, but that he is currently too young for such a procedure.

2 The insurer for Digger’s Polaris is United Auto/United Fire & Casualty Group ,
which is also a party to this appeal. Collectively, I refer to Digger’s Polaris and United
Auto as “Digger’s Polaris.”

C/D-4
In April 2018, Dr. Coetzee certified Bierbach as having intractable p ain.3 He was
approved to participate in the state’s medical cannabis program, and he began purchasing
medical cannabis from one of the registered cannabis manufacturers. The manufacturer’s
records show that, between April 2018 and February 2019, Bierbac h’s dosage more than
doubled. The dosage was increased to “reflect [his] current use,” and to help him manage
the pain from increased activity, including Bierbach’s return to full-time work. According
to those records, he was not able to afford as much m edical cannabis as he needed and on
at least one occasion, he had to wait several weeks after running out before purchasing a
refill. Bierbach reported getting good daytime relief, completing more yardwork at home,
and sleeping better. The total cost of his current dosage plan is about $1,860 per month.
The opinions of two experts were admitted as evidence. In his June 2018 letter,
Dr. Coetzee stated that Bierbach continued to develop progressive degenerative changes in
his ankle following his work injury; he was doing reasonably well, but not great, with the
ankle injections. Dr. Coetzee observed that Bierbach’s ankle continued to be very sore and
swollen with or without activity, that he walked with a limp, and that he was limited in his
daily activity and continued to gain weight because he could not exercise without pain.
Consequently, Dr. Coetzee opined that Bierbach would be a great candidate for medical
cannabis “to help with his intractable pain and wean off of narcotic pain medication.”

3 Under the workers’ compensation rules, “intractable pain ” means “a pain state in
which the cause of the pain cannot be removed or otherwise treated with the consent of the
patient and in which, in the generally accepted course of medical practice, no relief or cure
of the cause of the pain is possible, or none has been found after reasonable efforts.” Minn.
Stat. § 152.125, subd. 1; see Minn. R. 5221.6040, subp. 8a (2019) (incorporating the
definition from section 152.125, subdivision 1).

C/D-5
In February 2019, Dr. Christopher Meyer issued an independent medical
examination report. Dr. Meyer documented substantial swelling of Bierbach’s left ankle
and agreed that he had chronic left ankle pain related to his degenerative joint disease
resulting fr om his work -related injury. In assessing whether medical cannabis was an
appropriate treatment for Bierbach’s pain, Dr. Meyer stated that the treatment of chronic
pain is “under significant debate.” He explained that classic treatments include “bracing,
ice, as well as medications such as anti -inflammatories and has involved the use of
narcotics.” But he noted that the use of narcotics has come under “significant scrutiny.”
While acknowledging that medical cannabis is recognized as a safer alternative t o opioid
use, Dr. Meyer opined that the “medical objective data supporting” its use for chronic pain
“continues to be controversial.” Consequently, he stated that he was “not a believer in the
use of medical cannabis for chronic pain,” and Dr. Meyer recom mended that Bierbach be
evaluated for a chronic pain program.
In March 2019, Dr. Coetzee responded to Dr. Meyer’s report. He stated that
Bierbach suffered increased ongoing pain that was aggravated by physical activity, and he
noted that Bierbach had alre ady tried various treatments, including cortisone injections, a
brace, and opioids. He acknowledged that Bierbach had already weaned himself off
opioids, but Dr. Coetzee opined that Bierbach would need something more than anti -
inflammatory medications to alleviate his intractable pain and concluded that Dr. Meyer’s
advice would result in ongoing opioid use. Dr. Coetzee opined that medical cannabis is
significantly better for chronic pain than opioids, and he noted that Bierbach had tried, and

C/D-6
responded well to, medical cannabis. Accordingly, Dr. Coetzee reiterated his opinion that
“medical marijuana is an appropriate medication for Mr. Bierbach’s condition.”
At a hearing held by the compensation judge, Bierbach testified that he works as a
sales associate at a large outfitter store over 60 hours a week and is on his feet for 90 percent
of the day. He stated that he gets enormous swelling and discoloration when he is on his
feet for extended periods of time. And despite trying various treatments, such as icing,
medications, and ankle injections, his pain has slowly increased over the past 15 years since
his work injury. He further explained that medical cannabis has provided him substantial
relief by taking away the pain during the day and helping him sleep at night. Bierbach also
testified that medical cannabis has helped him maintain employment and has improved his
relationships with his family. He noted, however, that he sometimes runs out of his supply
and cannot afford to refill it immediately and t hat he would use medical cannabis “a lot
more” if he could afford it.
Bierbach admitted that he has misused drugs and alcohol in the past. He
acknowledged to using recreational cannabis “[t]hroughout [his] life” but denied using it
in recent years. Bierb ach also admitted receiving two DWI’s, including one in 2017 that
was followed by chemical dependency treatment. He stated that he never informed
Dr. Coetzee or the cannabis manufacturer of his DWI convictions because he was never
asked. Bierbach also acknowledged that Dr. Coetzee has no control over the frequency or
amount of medical cannabis that he receives under the program and that no one monitors
his use.

C/D-7
In his Findings and Order, the compensation judge determined that the Workers’
Compensation Act , Minn. Stat. §§ 176.001–.862 (2020), requires reimbursement for
medical cannabis use, but he determined that he lacked jurisdiction to decide questions
involving the federal Controlled Substances Act, 21 U.S.C. §§ 801–971. Under state law,
the compensation judge found that medical cannabis was reasonable and necessary because
Bierbach faced chronic pain without an effective alternative treatment. The judge found
that the opinion of Dr. Coetzee was more persuasive than the opinion of Dr. Meyer, and
the judge credited Bierbach’s testimony about his pain, the decreasing efficacy of cortisone
injections, and the benefits of using medical cannabis. The compensation judge also
determined that Bierbach’s use of medical cannabis was sufficiently regulated under a
general treatment parameter, Minn. R. 5221.6050, subp. 1 (201 9), and under the
Department of Health’s regulation of the medical cannabis program. Accordingly, the
compensation judge ordered Digger’s Polaris to pay for Bierbach’s prior medical cannabis
costs.4
The Workers’ Compensation Court of Appeals (WCCA) affirmed, holding that the
compensation judge did not abuse his discretion by crediting the opinion of Dr. Coetzee
over the opinion of Dr. Meyer. Bierbach v. Digger’s Polaris, No. WC19-6314, slip op. at
5 (Minn. WCCA Nov. 10, 2020). The WCCA also upheld the compensation judge’s
finding that medical cannabis is compensable under state law and that medical cannabis is
reasonable and necessary to treat Bierbach’s pain. Id. at 6–7. Finally, the WCCA held that

4 Bierbach’s counsel acknowledged at oral argument that the compensation judge’s
order for reimbursement applied only to the specific past expenses submitted to the court.

C/D-8
it did not have jurisdiction to decide whether the federal Controlled Substances Act
preempts state law. Id. at 7.
Digger’s Polaris sought review by certiorari on four issues: 1) whether the WCCA
correctly determined that it did not have subject matter jurisdiction to decide questions that
involve federal law, including a question of preemption , 2) whether the Controlled
Substances Act, 21 U.S.C. §§ 801–971, preempts state law to the extent that Minnesota
Statutes section 176.135, subdivision 1(a), requires an employer to reimburse an employee
for reasonably necessary medical treatment, which in this case includes the purchase of
medical cannabis, 3) whether the compensation judge abused his discretion by relying on
the medical opinion of Dr. Coetzee instead of the opinion of Dr. Meyer , and 4) whether
substantial evidence support s the compensation judge’s finding that medical cannabis is
reasonable and necessary to treat Bierbach’s intractable pain.
I agree with the court that WCCA lacks subject matter jurisdiction to decide the
preemption question, but I disagree with the court that federal law preempts the
reimbursement order made under section 176.135. Because my reasoning on these two
issues is set forth in my concurrence and dissent in Musta, slip. op. at C/D-1, I focus here
on the issues that are unique to this case. These issues are whether Dr. Coetzee’s opinion
has adequate foundation and whether substantial evidence supports the finding that medical
cannabis is reasonable and necessary to treat Bierbach’s intractable pain.
II.
Digger’s Polaris challenges Dr. Coetzee’s expertise and the factual basis for his
opinion. It contends that Dr. Coetzee lacked the relevant expertise to opine that medical

C/D-9
cannabis is reasonable and nece ssary because he is not a pain specialist, has never
prescribed medical cannabis, and generally lacks education and experience in treating pain
with medical cannabis. Bierbach counters that these objections go only to the weight, and
not to the admissibil ity, of Dr. Coetzee’s opinion, and therefore we should defer to the
credibility determination by the compensation judge.
We apply “a very deferential standard . . . when reviewing a determination as to
expert qualification, reversing only if there has been a clear abuse of discretion.” Teffeteller
v. Univ. of Minnesota , 645 N.W.2d 420, 427 (Minn. 2002) (citation omitted) (internal
quotation marks omitted). “The qualifications of an expert do not usually go to the
admissibility of the expert’s opinion but merely to its weight.” Ruether v. State ,
455 N.W.2d 475, 477 (Minn. 1990); see also Burke v. Precision Eng’g, 1997 WL 581202
at *5 (Minn. WCCA Aug. 21, 1997) (“Once [an] expert medical opinion has been admitted
into evidence without objection, that evide nce may no longer be entirely disregarded by
the compensation judge, and the evidentiary issue becomes one of weight rather than of
competence.”).
Because Digger’s Polaris did not object to the admission of Dr. Coetzee’s written
opinions into evidence—in fact, Digger’s Polaris offered the letters into evidence —their
challenge to his expertise goes to evidentiary weight, not admissibility. Burke, 1997 WL
581202 at *5.5

5 Even if the question of admissibility were properly preserved, I would conclude that
Dr. Coetzee is adequately qualified because he has extensive trainin g and experience in
treating ankle injuries. See Marquardt v. Schaffhausen, 941 N.W.2d 715, 719 (Minn. 2020)

C/D-10
Digger’s Polaris also claims that Dr. Coetzee lacked a sufficient factual foundation
to opine because he relied on two pieces of medical literature that are not in the record, his
first opinion incorrectly assumed that Bierbach was still using opioids, and he may have
been unaware of Bierbach’s prior alcohol and drug misuse. Accordingly, Digger’s Polaris
asserts that the compensation judge erred by relying on the opinion of Dr. Coetzee rather
than the opinion of Dr. Meyer. Bierbach responds that, as his treating provider, Dr. Coetzee
had an adequate factual foundation for the opinions provid ed and that the compensation
judge permissibly weighed the conflicting expert opinions and found the opinion of
Dr. Coetzee to be more persuasive than that of Dr. Meyer.
“It is well established that a compensation judge’s choice among conflicting expert
opinions must be upheld unless the opinion lacked adequate factual foundation.” Mattick
v. Hy-Vee Foods Stores , 898 N.W.2d 616, 621 (Minn. 2017). An expert opinion lacks
adequate foundation when it “does not include the facts and/or data upon which the expert
relied in forming [the] opinion,” Steffen v. Target Stores , 517 N.W.2d 579, 581 (Minn.
1994), does not “ explain the basis for [the] opinion,” Welton v. Fireside Foster Inn,
426 N.W.2d 883, 887 (Minn. 1988), or when the expert assumes facts that “are not
supported by the evidence,” Schuette v. City of Hutchinson, 843 N.W.2d 233, 237 (Minn.

(requiring an expert to have “the necessary schooling and training” plus “practical or
occupational experience” with the subject matter to testify ). Dr. Coetzee is an orthopedic
surgeon sub-specializing in foot and ankle surgery who performed Bierbach’s surgery and
has directed his course of pain management treatment for over 15 years. Although the full
extent of Dr. Coetzee’s training or experien ce with medical cannabis is unclear,
Dr. Coetzee has observed Bierbach’s response to the use of medical cannabis and has
knowledge of medical literature relating to medical cannabis use. Consequently, the
compensation judge did not abuse his discretion in admitting Dr. Coetzee’s letters.

C/D-11
2014). See Hudson v. Trillium Staffing, 896 N.W.2d 536, 540 (Minn. 2017 ) (concluding
that an expert opinion lacked foundation on each of these grounds). “An expert need not
be provided with every possible fact, but must have enough facts to form a reasonable
opinion that is not based on speculation or conjecture.” Gianotti v. Indep. Sch. Dist. 152 ,
889 N.W.2d 796, 802 (Minn. 2017). Whether an expert’s opinion has adequate foundation
is a determination for the compensation judge, subject to review for an abuse of discretion.
Mattick, 898 N.W.2d at 621.
Based on my review of the record, I conclude that Dr. Coetzee had an adequate
factual basis for opining that medical cannabis is reasonable and necessary to treat
Bierbach’s pain. The record amply supports Dr. Coetzee’s opin ion that traditional pain
management treatments are not adequate for Bierbach’s pain. The record establishes that
Bierbach tried physical therapy, an ankle brace, an ankle boot, compression icing, cortisone
injections, and anti-inflammatory drugs with decreasing effectiveness over 15 years. And
because of Bierbach’s relatively young age, ankle -replacement surgery is not advisable at
this time.
Dr. Coetzee’s opinion that medical cannabis is substantially better for chronic pain
than opioids is also amply supported. Dr. Coetzee cited two articles indicating that medical
cannabis is currently being used to replace opioids for pain management, 6 and even

6 Although the medical articles cited by Dr. Coetzee are not in the record, workers’
compensation proceedings are not bound by the usual rules of evidence, pleading, or
procedure. Minn. Stat. § 176.411, subd. 1 (2020). Even if they were, Minnesota Rule of
Evidence 703(a) permits an expert to rely on inadmissible facts or data if commonly relied
on by experts in the field.

C/D-12
Dr. Meyer agreed that medical cannabis is safer than opioids. Moreover, Dr. Coetzee
observed Bierbach’s positive response to the use of medical cannabis between April 2018
and February 2019. See Minn. Stat. § 152.28, subd. 1(a)(5) (requiring a certifying provider
to “agree to continue treatment of the patient’s qualifying medical condition and report
medical findings to the commissioner [of health]”).
The attempts by Digger’s Polaris to undermine Dr. Coetzee’s opinion are not
persuasive. Digger’s Polaris is correct that Dr. Coetzee mistakenly reasoned that medical
cannabis would help Bierbach wean off opioid s, when in fact he had not used opioids for
years. But Dr. Coetzee gave additional reasons why medical cannabis is reasonable and
necessary, which are independently sufficient to sustain his opinion. Specifically, he
explained that Bierbach needs more th an anti-inflammatory medications and that, while
helpful, cortisone injections do not provide adequate relief. He further explained that apart
from medical cannabis, Bierbach would have to resort to long -term use of opioids, which
Dr. Meyer agreed is more dangerous than use of medical cannabis. Consequently,
Dr. Coetzee’s opinion is adequately supported.
In addition, although the evidence does not show that Dr. Coetzee knew of
Bierbach’s history of chemical substance use, an expert “need not be provided w ith every
possible fact,” but need only “have enough facts to form a reasonable opinion that is not
based on speculation or conjecture.” Gianotti, 889 N.W.2d at 802. I conclude that this
standard is met here, particularly given that the record does not show any current or recent
chemical substance misuse.

C/D-13
Because Dr. Coetzee’s opinion was admitted without objection and had an adequate
factual basis, the compensation judge acted within his discretion when he weighed the
conflicting opinions of Dr. Coetzee and Dr. Meyer and found that Dr. Coetzee’s opinion
was “more persuasive and in line” with the medical evidence in the case. See Ruether,
455 N.W.2d at 478 (“[I]t is axiomatic that a conflict in the opinions of expert medical
witnesses is to be resolved by the trier of fact.”). I therefore conclude that the compensation
judge did not abuse his discretion in relying on the opinion of Dr. Coetzee instead of the
opinion of Dr. Meyer.
III.
Having addressed the dispute over Dr. Coetzee’s opinion, I now consider whether
substantial evidence supports the compensation judge’s finding that medical cannabis is
reasonable and necessary to treat Bierbach’s intractab le pain. Although the primary
question is an evidentiary one, the parties also raise questions about the interpretation of
various statutes and administrative rules.
Digger’s Polaris makes many arguments why medical cannabis cannot be
reasonable and necessary to treat Bierbach’s pain. Because possession of medical cannabis
is illegal under federal law, Digger’s Polaris contends that medical cannabis is per se
unreasonable and unnecessary under the workers’ compensation laws. Even if it is not per
se unr easonable and unnecessary, Digger’s Polaris maintains, medical cannabis is not
“medically necessary treatment” under the administrative rules because there is no
prescribing “provider” and because medical cannabis is not “consistent with the current
accepted standards of practice.” See Minn. R. 5221.6040, subp. 10 (2019), Minn. R .

C/D-14
5221.6050, subp. 1(A) (2019). It further argues that the compensation judge and WCCA
relied on a mistaken understanding of the definition of “illegal substance” in the workers’
compensation administrative rules. See Minn. R. 5221.6040, subp. 7a (2019). Finally,
Digger’s Polaris asserts that the record does not support a finding that medical cannabis is
reasonable and necessary for Bierbach’s pain.
Bierbach responds that substan tial evidence supports the compensation judge’s
finding. He points to his treatment history, his own testimony, and the opinion of
Dr. Coetzee. Bierbach further argues that the accepted standards of practice for using
medical cannabis are the requirement s established by the Legislature for a patient to
participate in the state’s medical cannabis research program. I address each of the parties’
arguments in turn.
Construing a statute or administrative rule is a question of law subject to de novo
review. Ross v. N. States Power Co., 442 N.W.2d 296, 297 (Minn. 1989) (statute); Johnson
v. Darchuks Fabrication, Inc. , 926 N.W.2d 414, 419 (Minn. 2019) (administrative ru le).
We first determine whether the language of the statute or rule is ambiguous. Johnson,
926 N.W.2d at 419. If the language is subject to more than one reasonable interpretation,
the statute or rule is ambiguous. Id. But if the language is unambiguous, we construe it
according to its plain meaning in light of the statute or rule as a whole. Id.
We “ will not disturb findings affirmed by the WCCA unless the findings are
manifestly contrary to the evidence or unless the evidence clearly requires reaso nable
minds to adopt a contrary conclusion.” Pelowski v. K -Mart Corp., 627 N.W.2d 89, 92
(Minn. 2001). Rather, when a compensation judge’s findings are supported by substantial

C/D-15
evidence, we affirm a decision of the WCCA upholding those findings. See Oseland by
Oseland v. Crow Wing Cnty., 928 N.W.2d 744, 756 (Minn. 2019).
A.
I turn first to the argument by Digger’s Polaris that medical cannabis is per se
unreasonable and unnecessary. 7 The Workers’ Compensation Act requires employers to
furnish “any medi cal . . . treatment . . . as may reasonably be required . . . to . . . relieve
from the effects of the injury.” Minn. Stat. § 176.135, subd. 1(a) (emphasis added). Under
federal law, cannabis is classified as a Schedule I controlled substance, 21 U.S.C. § 812(c),
and therefore its possession is illegal, 21 U.S.C. § 844(a). Accordingly, the question is
whether medical cannabis can be a reasonable and necessary treatment within the scope of
section 176.135, subdivision 1, when its possession is illegal und er federal law. This
question of statutory interpretation is reviewed de novo. Ross, 442 N.W.2d at 297.

7 As a preliminary matter, Bierbach argues that the compensation judge and the
WCCA did not have ju risdiction to determine whether medical cannabis is per se
unreasonable based on its status as a Schedule I drug, because determining whether
cannabis is illegal under federal law requires interpreting federal law. The compensation
judge held that he did not have jurisdiction, but the WCCA disagreed. The court does not
reach this question because it resolved the case on other grounds.
The WCCA is correct. The determination of the compensability of a particular
medical treatment for a work -related injury is squarely within the jurisdiction of the
WCCA. See Minn. Stat. § 175A.01, subd. 5 (2020) (conferring jurisdiction over “all
questions of law and fact arising under the workers’ compensation laws of the state”).
Although the WCCA may not interpret and apply foreign law, see, e.g., Martin v. Morrison
Trucking, Inc., 803 N.W.2d 365, 369 (Minn. 2011), it may determine certain questions
ancillary to a compensation claim, see, e.g., Seehus v. Bor-Son Constr., Inc., 783 N.W.2d
144, 152 (Minn. 2010), or look to foreign law for instruction in limited circumstances, see,
e.g., Sundby v. City of St. Peter , 693 N.W.2d 206, 215–16 (Minn. 2005). I conclude that
the compensation judge and the WCCA were permitted to look to federal law to determine
the narrow question of the legality of possessing medical cannabis to resolve a claim of
compensability raised by Bierbach.

C/D-16
Digger’s Polaris asserts that medical cannabis is per se unreasonable because
Bierbach cannot knowingly possess cannabis without committing a federal crime and
because it cannot reimburse him for his purchase without aiding, abetting, and conspiring
to further that crime. This argument is incorrect. For the reasons explai ned in my
concurring and dissenting opinion in Musta, No. A20-1551, slip op. at C/D -1, Digger’s
Polaris cannot be liable for aiding and abetting. Moreover, it cannot be liable for conspiring
to further a possession offense because it shared no goal of hel ping Bierbach possess
cannabis. See Hager v. M&K Constr. , 247 A.3d 864, 889 (N.J. 2021) (holding that an
employer would not be liable for conspiracy by reimbursing an employee for the purchase
of medical cannabis under court order because there would be no “unity of purpose”).
Next, Digger’s Polaris contends that medical cannabis is per se unnecessary because
Congress has found that Schedule I drugs—and therefore cannabis—have “a high potential
for abuse,” have “no currently accepted medical use in treatment in the United States,” and
lack “accepted safety for use of the drug or other substance under medical supervision.”
21 U.S.C. § 812(b)(1).
This argument is flawed because Minnesota workers’ compensation law does not
entrust the finding of medical necessity to Congress. To the contrary, state law entrusts a
state official, the Commissioner of Labor and Industry, with establishing guidelines for
determining whether a treatment is reasonable and necessary. See Minn. Stat. § 176.83,
subd. 5(a) (2020) (requiring the commissioner to adopt rules for determining when
treatment is “excessive, unnecessary, or inappropriate under section 176.135, subdivision
1”). Those determinations, in turn, must be “based upon accepted medical standards.” Id.

C/D-17
Generally, whether a treatment is medically necessary depends on its consistency
with an applicable treatment parameter. See Minn. R. 5221.6040, subp . 10 (defining
“[m]edically necessary treatment” as those health services that are “consistent with any
applicable treatment parameter”). The treatment parameters are rules that establish criteria
for determining when a treatment is advisable for a particular condition, consistent with
accepted medical standards. See Johnson , 926 N.W.2d at 418 (explaining that the
treatment parameters are standards that set out reasonable medical treatment based on
certain accepted medical and rehabilitation standards that are intended to control the costs
for compensable medical treatment). For example, parameters govern the use of
medications, see Minn. R. 5221.6105 (2019), long-term opioid use, Minn. R. 5221.6110
(2019), and chronic pain management, Minn. R. 5221.6600 (2019). The parameters also
establish various limitations, such as how long a treatment may continue, see, e.g., Minn.
R. 5221.6600, subp. 2(B)(3) (permitting use of a health club for 13 weeks), or in what order
treatment must progress, see, e.g., Minn. R. 5221.6105, subp. 2 (B) (requiring a generic
ibuprofen or naproxen to be used before other drugs of the same type). When a specific
treatment parameter does not apply, as is the case here, a treatment may be medically
necessary if it is “consistent with the current accepted standards of practice within the scope
of the provider’s licensure or certification.” Minn. R. 5221.6040, subp. 10.
Certainly, the congressional finding that there is “no currently accepted medical use
in treatment in the United States” is relevant evidence of the absence of an accepted medical
standard. But it need not be determinative of the “current standards of practice” if other
evidence suggests otherwise. Accordingly, I conclude that medical cannabis is not per se

C/D-18
unreasonable or unnecessary medical treatment, and instead requires a case -by-case
determination.8
B.
Next, I turn to the argument by Digger’s Polaris that medical cannabis is not
medically necessary treatment under the workers’ compensation administrative rules
because there is no prescribing “provider” and because the use of medical cannabis to treat
a work-related injury is not consistent with accepted standards of practice.
1.
Because no specific treatment parameter governs the use of medical cannabis, see
Minn. R. 5221.6050–.6600 (2019), medical cannabis is medically necessary, and therefore

8 Because I resolve this question under a plain -language analysis, I need not address
additional arguments by Digger’s Polaris that are based on the absurdity and constitutional-
avoidance canons. As it admits, those canons generally apply only to ambiguous statutes.
See Schatz v. Interfaith Care Ctr. , 811 N.W.2d 643, 651 (Minn. 2012) (absurdity canon);
State v. Altepeter, 946 N.W.2d 871, 877 (Minn. 2020) (constitutional-avoidance canon).
Similarly, I need not address an argument of Digger’s Polaris based on amendments
to the THC Act because the argument is premised on the canon of in pari materia, which
applies only to ambiguous statutes. State v. Thonesavanh , 904 N.W.2d 432, 437 (Minn.
2017) (explaining that, under the canon of in pari materia , two statutes with common
purposes and subject matter may be construed together to resolve an ambiguity).
I agree with Digger’s Polaris that the compe nsation judge and the WCCA
improperly relied on the definition of “illegal substance” in the administrative rules to
determine that medical cannabis is compensable. See Minn. R. 5221.6040, subp. 7a
(defining “illegal substance” by excluding the use of med ical cannabis by patients in the
medical cannabis research program). As acknowledged by the Department of Labor &
Industry, which promulgated the administrative rules that govern medical services for
workers’ compensation claimants, the definition of ille gal substance and the related rules
“do not address whether treatment with medical cannabis is compensable under workers’
compensation law.” Compact, Minn. Dep’t Lab. & Ind., Aug. 2015, at 2. Nevertheless, I
reject the arguments by Digger’s Polaris that medical cannabis is per se unreasonable and
unnecessary for the reasons already explained.

C/D-19
compensable, if it is “for the diagnosis or cure and significant relief of a condition
consistent with the current accepted standards of practice within the scope of the
provider’s license or certification.” Minn. R. 5221.6040, subp. 10 (emphasis added).
The ques tion here is what role the “provider” must play in relation to the
“treatment.” According to Digger’s Polaris, the provider must “order” the treatment.
Because Dr. Coetzee did not order or prescribe medical cannabis for Bierbach—he merely
certified that Bierbach has a qualifying condition and opined that Bierbach was a good
candidate for the state’s medical cannabis program —Digger’s Polaris maintains that the
provider requirement is not met.
I disagree. Although it is apparent that a provider must have some role to play in
the employee’s acquiring of the treatment, limiting a provider’s role to “ordering” a
treatment is not reasonable in light of the meanings of “treatment” and “provider.”
“Treatment” is defined in the rules as “any procedure, operatio n, consultation, supply,
product, or other thing performed or provided for the purpose of curing or relieving an
injured worker from the effects of a compensable injury under [section 176.135,
subdivision 1].” Minn. R. 5221.0100 subp. 15 (emphasis added). And “provider” means
“a physician . . . or any other person who furnishes a medical or health service to an
employee under this chapter.” Minn. Stat. § 176.011, subd. 12a (emphasis added); see
Minn. R. 5221.0100, subp. 12 (incorporating the definition o f “provider” from
section 176.011). These definitions show that, at a minimum, a provider may “furnish,”
“perform,” or “provide” a treatment. Moreover, other rules use an even greater variety of
words to describe the relationship between a provider and t reatments. See, e.g., Minn. R.

C/D-20
5221.6050, subp s. 1 (B) (“ordered”), 2 (“provided”), 3 (“offering or performing”), 4
(“prescribed”), 5 (“offer”), 6(B)(3) (“use”), 8(C) (“delivered”), 9 (“provide”).
Given the variety of ways that the rules describe the relationship between a provider
and the treatment at issue, the role of a provider in rule 5221.6040, subpart 10, cannot be
read narrowly. See Johnson , 926 N.W.2d at 420 (adopting an interpretation that made
sense “in light of the other language” in the rule). At the very least, a provider must include
one who “provides” a treatment, which means “to supply or make [that treatment]
available.” Provide, Merriam Webster’s Collegiate Dictionary 940 (10th ed. 1996).
Unquestionably, Dr. Coetzee is a healthcare provider because he is an experienced surgeon.
Although Dr. Coetzee did not prescribe Bierbach’s medical cannabis, he certified that
Bierbach has a qualifying condition, which is a prerequisite to participating in the state’s
medical cannabis program . Acc ordingly, Dr. Coetzee ’s certification made medical
cannabis available to Bierbach. And similar to a prescription that may be valid for only a
fixed period of time, Bierbach is required to seek re -certification from a doctor annually.
Minn. Stat. § 152.27, subd. 3(b). I therefore conclude that the “provider” requirement of
the definition is satisfied.
2.
Digger’s Polaris next argues that medical cannabis is not a medically necessary
treatment because no amount of medical cannabis is “consistent with the c urrent accepted
standards of practice.” It argues that because doctors cannot lawfully prescribe medical
cannabis, no accepted standards of practice could have developed. For the same reason,
Digger’s Polaris insists that any amount of medical cannabis is excessive. See Minn. Stat.

C/D-21
§ 176.136, subd. 2 (permitting an employer or insurer to refuse to pay an “excessive” fee,
including a charge for a service that is “provided at a level, duration, or frequency that is
excessive, based upon accepted medical standards”).
Bierbach responds that the accepted standards of practice are the requirements for
participating in the state’s medical cannabis program. By finding that medical cannabis
was reasonable and necessary for him, the compensation judge impliedly found that using
medical cannabis to manage intractable pain is consistent with accepted standards of
practice. Accordingly, I must determine whether this implied finding is “manifestly
contrary to the evidence.” Pelowski, 627 N.W.2d at 92.
The requirements for participating in the state’s medical cannabis program do not
reveal the accepted standards of medical practice because the Legislature, not medical
professionals, established a research program. Nevertheless, other evidence in the record
adequately supports the compensation judge’s implied finding that treating intractable pain
with medical cannabis is consistent with accepted medical standards.
The compensation judge’s finding is suppo rted by various parts of each expert’s
opinion. Dr. Coetzee and Dr. Meyer agreed that medical professionals are reasonably
certain that medical cannabis is safer than opioids for long-term use to treat chronic pain.
Although Dr. Meyer opined that the objective medical data in support of medical cannabis
is “controversial” and does not himself support the use of medical cannabis for pain
management, he acknowledged the significant anecdotal evidence of the effectiveness of
medical cannabis for that purpose . In addition, Dr. Coetzee opined with “a reasonable
degree of medical certainty” that medical cannabis is an “appropriate medication” for

C/D-22
Bierbach’s intractable pain, relying on two articles that he interprets as showing that
medical cannabis is currentl y replacing opioids as a safer treatment alternative.
Dr. Coetzee’s position is seemingly corroborated by the author of one of those articles,
who, according to Dr. Coetzee, strongly encouraged patients to talk with their doctors about
using medical cannabis instead of opioids for managing long-term pain.
Digger’s Polaris and amici curiae cite to publicly available studies or reports
concerning the use of medical cannabis to treat pain.9 For example, Digger’s Polaris points
to findings by Congress and the Drug Enforcement Agency that use of cannabis to treat
medical conditions lacks acceptance in the United States. See 21 U.S.C. § 812(b)(1)(B);
Denial of Petition to Initiate Proceedings to Reschedule Marijuana, 81 Fed. Reg. 53767
(Aug. 12, 2016). Digger’s Polaris also cites to reports that conclude the clinical evidence
supporting the use of medical cannabis to treat pain is weak. See, e.g., Mary Butler, Ph.D.,
M.B.A., et al. Office of Medical Cannabis, Minn. Dep’t of Health, Medical Cannabis for
Non-Cancer Pain: A Systematic Review 24 ( undated) ( concluding that the medical
literature studying the use of medical cannabis to treat chronic non-cancer pain “is sparse,
patchy, of low qualit y, and leads to generally insufficient evidence for most patient
populations and treatments”). On the other hand, amicus curiae Minnesota Association for

9 We may take judicial notice of government websites and commissioned studies even
though not part of the record below. See State v. Jobe , 486 N.W.2d 407, 420 n.3 (Minn.
1992) (taking judicial notice of a report issued by the Committee on DNA Technology in
Forensic Science of the National Research Council); Missourians for Fiscal Accountability
v. Klahr, 830 F.3d 789, 793 (8th Cir. 2016) (recognizing that a court ma y take judicial
notice of government websites). Because Bierbach did not object to the request of Digger’s
Polaris for judicial notice, I consider the government sources cited by Digger’s Polaris and
amici curiae.

C/D-23
Justice cites to a 2018 study stating that medical cannabis has been an effective alternative
to opioids for pain relief for patients in the state’s medical cannabis research program.
Press Release, Minn. Dep’t of Health, Medical Cannabis Study Shows Significant Number
of Patients Saw Pain Reduction of 30 Percent or More, (Mar. 1, 2018).
Notably, Dr. Co etzee’s opinion and the stud y cited by amicus curiae Minnesota
Association for Justice in support of the use of medical cannabis to treat pain are more
recent than the report cited by Digger’s Polaris to assert that the data is sparse and of low
quality. Although the evidence is mixed, I conclude that substantial evidence supports a
finding that using medical cannabis for intractable pain relief as an alternative to opioids
is consistent with accepted standards of practice. Accordingly, the compensation j udge’s
finding is not manifestly contrary to the evidence and deserves deference. Oseland,
928 N.W.2d at 755.
C.
I turn now to the question of whether medical cannabis is reasonable and necessary
to treat Bierbach’s pain under the facts of this case. Di gger’s Polaris challenges the
evidentiary basis for the compensation judge’s finding that medical cannabis is reasonable
and necessary to treat Bierbach’s intractable pain. Bierbach responds that the record
contains ample evidence to support the compensation judge’s finding, including Bierbach’s
treatment records, his testimony, and Dr. Coetzee’s opinion. Again, I must defer to the
findings of the compensation judge unless they are manifestly contrary to the evidence.
Pelowski, 627 N.W.2d at 92.

C/D-24
The reco rd contains substantial evidence that medical cannabis is appropriate to
treat Bierbach’s pain. Digger’s Polaris does not dispute that he has intractable pain and
that traditional treatments, including icing, ankle injections, and over -the-counter anti -
inflammatories are no longer adequate for managing the pain from his degenerative ankle
condition. Digger’s Polaris also does not deny that an ankle -replacement surgery is
inappropriate for Bierbach at this time because of his age. In addition, Dr. Coetzee opined
with a reasonable degree of certainty that medical cannabis is appropriate to treat
Bierbach’s pain, and Dr. Meyer agreed that cannabis is safer than opioids for long -term
use. Further, not only does the record contain evidence that medical cannabis is necessary,
it also shows that medical cannabis is helping Bierbach live a full life. Dr. Coetzee opined
that he responded well to medical cannabis, and the compensation judge was persuaded by
Bierbach’s testimony that using medical cannabis reduc es his pain and allow s him to
continue in a full-time job that requires him to be on his feet for many hours. This evidence
is adequate to support the finding of the compensation judge.
Digger’s Polaris contends that Bierbach’s use is not reasonable because it is not
limited by any external constraint. It points out that his cannabis dosage more than doubled
in his first year of use and that he testified he would buy even more if he could afford it.
This concern is understandable but overstated. That Bierbach’s use doubled during
the first year sounds extreme, but it likely reflects that he eased into the new treatment and
increased his dosage when he found it effective and could afford more. In addition, the
requirement that a doctor must recertify his participation in the program every year places
constraints on his usage.

C/D-25
In any event, I need not speculate a bout Bierbach’s future use. The compensation
judge’s order does not require Digger’s Polaris to give him a blank check. The order
requires only that it reimburse him for purchases that he had already made. Whether
Digger’s Polaris has a statutory obligation to reimburse Bierbach for purchases made after
the date of the order will depend on the facts and circumstances that exist at the time of
those purchases, which may change as his condition changes and as research develops. See
Minn. Stat. § 152.25, subd. 2 (requiring the commissioner of health to “review and publicly
report the existing medical and scientific literature regarding the range of recommended
dosages for each qualifying condition” and to update the information annually). At any
time, Digg er’s Polaris is free to withhold payment for treatment that becomes
unreasonable, unnecessary, or excessive. See Minn. Stat. § 176.136, subd. 2. For present
purposes, the compensation judge determined that Bierbach’s use was reasonable and
necessary and should be reimbursed, and I see no clear error in the judge’s finding.
III.
In sum, I would hold that the order of the compensation judge for Digger’s Polaris
to reimburse Bierbach for his purchases of medical cannabis is supported by substantial
evidence and is not preempted. Accordingly, I would affirm the decision of the Workers’
Compensation Court of Appeals upholding that order. Because the court’s decision
overextends the preemptive reach of federal law and denies Bierbach reimbursement for
the best means of managing his painful, work -related injury while staying meaningfully
employed, I respectfully dissent.