Divided Kansas Court Says Lab Test Results Showing Marijuana Were Admissible

Rules of Evidence Do Not Strictly Apply to Comp Hearings

Stressing that in workers’ compensation hearings, the Kansas Rules of Evidence do not apply and that even hearsay evidence may be admitted if it is sufficiently reliable, a divided Kansas appellate court held that the state’s Workers Compensation Appeals Board abused its discretion when it refused to admit into evidence the results of a lab test from a federally certified drug-testing lab since an adequate foundation for the evidence had been offered by the employer [Woessner v. Labor Max Staffing, 56 Kan. App. 2d 780, 437 P.3d 992 (2019)].

Background

The employee, Woessner, sustained fatal injuries when he fell 15 feet from a job site catwalk for no apparent reason. He received emergency treatment at a Topeka hospital, where a urine drug screen tested positive for THC, marijuana’s psychoactive ingredient. —his widow sought death benefits under the Kansas Workers Compensation Act. Following a urine drug screen run at Stormont Vail Hospital in Topeka when Gary was being treated on an emergency basis tested positive for THC, marijuana’s psychoactive ingredient. Part of the urine sample taken when was later sent to LabCorp, an independent testing laboratory. LabCorp reported the presence of metabolites of marijuana. Woessner’s widow sought workers’ compensation death benefits.

ALJ’s Decision

The ALJ determined that the results from both drug-tests—an immunoassay test at the hospital and LabCorp’s GC/MS test—were admissible. That triggered a statutory presumption that the employee was impaired at the time of his accident, and the judge found that the widow had not presented sufficient evidence to rebut that presumption. Based on these conclusions, the judge ruled in favor of the employer and its insurance carrier and did not order any further payments to Carmen.

Board’s Decision

On appeal, the Board concluded that the LabCorp GC/MS test result was not admissible, relying upon K.S.A. 2014 Supp. 44-501(b)(3), and a regulation, K.A.R. 51-3-5a. The statute provides several requirements for the admission of drug-test results from “a sample collected by an employer,” including that “the foundation evidence … establish, beyond a reasonable doubt, that the test results were from the sample taken from the employee.” (Emphasis added.) K.S.A. 2017 Supp. 44-501(b)(3). Although this sample was collected by hospital personnel, not the employer, the appellate court said the Board apparently applied this statutory provision because the employer had requested the additional LabCorp test.

The Board noted that no one who directly handled Gary’s sample had testified and concluded that without a demonstrable and reliable chain of custody, it would be impossible to conclude, beyond a reasonable doubt, that a given sample was from the employee and that the same sample was used for the drug test.

Without that test result, there could be no statutory presumption that the employee was impaired at the time of his accident. The Board said the other evidence of impairment was not sufficient to show that any impairment from marijuana usage contributed to the accident, so the employee’s widow was entitled to the remaining benefits due under the Workers Compensation Act.

Court of Appeals Reasoning

The appellate court observed that the key question was whether the LabCorp test result should have been admitted into evidence and considered by the Board. Stressing that the state’s Rules of Evidence did not apply to the administrative hearing, the court observed that hearsay evidence could be admitted in administrative proceedings. The Court added, “and for good reason,” since it was often expensive to bring everyone involved in every aspect of a dispute either to the hearing or to a deposition. The court cautioned, of course, that all hearsay evidence should not be admitted.

Who Administered the Test?

The court continued that the Board erred in considering K.S.A. 2017 Supp. 44-501(b)(3), since it applied only to “the results of a chemical test performed on a sample collected by an employer.” The urine sample here was taken by hospital personnel.

Evidentiary Chain

Reviewing the Board’s decision under the general evidentiary rules for workers’ compensation hearings, the court noted that there had been detailed testimony from the hospital’s lab director as to the taking and handling of the urine sample at the hospital. The court added that the employer presented an affidavit from LabCorp officials as to the handling of the sample while in its custody. The court found significant the fact that LabCorp was a federally certified lab and had no interest in this case.

Presumption Should Have Applied

Continuing its discussion of the issue, the court indicated that with the admission of the LabCorp test result, the conclusive presumption of impairment applied. Moreover, there was also a rebuttable presumption that this impairment contributed to the employee’s death. Given that presumption, the widow could recover only if she showed by clear and convincing evidence that the impairment did not contribute to the death [see K.S.A. 2017 Supp. 44-501(b)(1)(D)]. As a practcial matter, that meant that she must show that it was highly probable that the impairment did not contribute to her husband’s death. The matter was remanded for further proceedings.

Spirited Dissent

In a lengthy and carefully crafted dissent, Justice Green argued that both the employer and the majority had ignored the plain language of K.A.R. 51-3-5a(a). Unlike the majority, Justice Green felt the Board had not applied the regulation in an overly broad manner. The proof offered to support the accuracy of LabCorp’s test results was inadequate.