Kansas Widow Rebuts Presumption of Marijuana Intoxication
Affirming a decision of a split panel of the state’s Court of Appeals, the Supreme Court of Kansas sustained an award of death benefits to the widow of a worker who suffered an unexplained fall during the course of his employment, and subsequently died, in spite of two drug tests that showed the presence of marijuana in the worker’s system [Woessner v. Labor Max Staffing, 2020 Kan. LEXIS 88 (Aug. 28, 2020)]. Acknowledging that, based on the tests, the employer was entitled to a presumption that the marijuana contributed to the worker’s fall and resulting death, which would have defeated the widow’s claim, the high court nevertheless agreed that the worker’s widow had successfully rebutted the statutory presumption and should be awarded death benefits.
Background
Woessner fell from a job site catwalk for no apparent reason, suffering a severe traumatic head injury. No one saw him fall, and the cause remained unexplained. He died about six months later. His widow was awarded death benefits under the Kansas Workers Compensation Act. The employer appealed, contending that under K.S.A. 2019 Supp. 44-501(b)(1)(A), it was not liable since Woessner’s injury was contributed to by his marijuana consumption. A toxicology screen performed in the hospital shortly after the incident indicated a positive result for THC, marijuana’s psychoactive ingredient, at a level of at least 50 ng/ml of urine.
An additional drug test by LabCorp showed marijuana metabolites at a level of 189 ng/ml confirmed by GC/MS analysis. In addition, a board-certified forensic toxicologist, testifying in an evidentiary deposition on behalf of the employer, testified that, depending upon the amount of marijuana consumed, marijuana could show up in urine samples as much as one week later. The expert indicated he did not know if Woessner’s death was contributed to by the marijuana; he could only state that it was present in Woessner’s blood.
Woessner’s widow presented testimony by a co-worker who had been working nearby some 15 minutes before the accident. The co-worker indicated Woessner was not restless, drowsy, or agitated; he appeared to be normal. The employer objected to the introduction of the LabCorp test, but the ALJ allowed it.
ALJ’s Findings
The ALJ held, based on the test results, that Woessner was conclusively presumed to have been impaired due to marijuana. The ALJ also concluded Woessner’s widow failed to demonstrate by clear and convincing evidence that Woessner’s impairment did not contribute to his accident, injury, and death. Therefore, the ALJ ruled Woessner’s injuries were not compensable.
Board Reverses
The Board reversed the ALJ. It ruled the LabCorp test results were inadmissible for lack of evidentiary foundation. In addition, it found that even if Woessner was impaired, the impairment did not contribute to his accident. The Board concluded Woessner’s injuries were compensable and awarded the authorized benefits.
Court of Appeals Reverses Board’s Decision
A split panel of the Court of Appeals vacated the award and remanded the claim to the Board (for my 2019 discussion of that Court’s decision, click here). The panel majority held the Board erred as a matter of law when it excluded the exhibits, reasoning that neither the statute nor the regulation excluded them, and they were sufficiently reliable to be admissible. The widow petitioned the Kansas Supreme Court for review and the high court granted her petition.
Supreme Court’s Decision
The Court, agreeing with the majority of the Court of Appeals panel, held the Board had indeed erred in excluding the LabCorp test results. It noted that the chain of custody had been shown to a reasonable certainty. Citing Kan. Stat. Ann. § 44-523(a) (Supp. 2019) and Kan. Admin. Regs. 51-3-8(c), the Court indicated that, within this context, hearsay was generally admissable.
The Court concluded, however, that although the test results triggered a presumption of impairment under § 44-501(b)(1)(C), the record as a whole supported the Board’s finding of compensability. Sufficient evidence supported the Board’s finding under § 44-501(b)(1)(D) that it was highly probable the impairment did not contribute to the accident.