Kanna Knowledge 

Your Source For News and Commentary on Cannabis
for the Insurance Industry

Subscribe to our Newsletter Updates

Bierbach v. Digger’s Polaris and Musta v. Mendota Heights Dental Center

This February, the U.S. Supreme Court made a request that the Solicitor General submit an amicus brief to the Court in connection with two workers’ compensation cases: Bierbach v. Digger’s Polaris and Musta v. Mendota Heights Dental Center.

These cases sought review of two decisions from the Minnesota Supreme Court that found that the Minnesota Workers’ Compensation Law requiring employers to cover the cost of medical cannabis prescribed for work-related injuries was preempted by the federal Controlled Substance Act (CSA). Other states have had similar challenges to their workers’ compensation laws, and the decisions have varied. Both the New Jersey Supreme Court and the New Hampshire Supreme Court have ruled that reimbursements to medical cannabis patients are allowed, while the Maine Supreme Court held that CSA preempted payments.

The industry will be watching whether the Solicitor General, who will represent the Department of Justice position, sides with medical cannabis. Attorney General Merrick Garland has publicly stated his interest in reinstating the Cole Memorandum that was previously rescinded by Attorney General Jeff Sessions, and the hope is that the DOJ will be changing its position to back the trend to make reimbursements to medical marijuana patients permissible despite continued federal prohibition.

Empyreal Enterprises LLC v. United States

Based in Pennsylvania, Empyreal provides cash collection and transport services to state-licensed medical cannabis businesses in several states. In its January 2022 complaint, Empyreal alleges that Kansas law enforcement officers in Kansas, working in conjunction with a DEA task force, wrongfully seized $165,620 in cash proceeds from an Empyreal vehicle.

The complaint states that the proceeds were entirely from state-licensed medical cannabis dispensaries operating lawfully in Missouri and were being transported by Empyreal for deposit in another state. Empyreal is charging ultra vires (actions by a government agency beyond its legal authority, violations of the Fourth Amendment, and violations of due process, and is seeking to block defendants from unreasonably stopping, searching or seizing their vehicles or their contents.

While Empyreal also sought an emergency order that would enjoin the defendants from carrying out these stops and seizures, U.S. District Court John W. Holcomb denied that request without prejudice. However, he allowed Empyreal to seek appropriate injunctive relief through a regularly noticed motion.

This case is a prime example of the risks endured when legal cannabis industry participants must cross state lines, with the danger of having to carry cash due to not having access to traditional banking.


A 50-year-old lawyer who had been practicing since he was 25 passed away and arrived at the Pearly Gates for judgment. The lawyer said to St. Peter, “There must be some mistake! I’m only 50 years old, that’s far too young to die.” St. Peter frowned and consulted his book. “That’s funny, when we add up your billing records, you should be at least 83 by now!”