Gary L. Woessner, Deceased, Appellee,
Labor Max Staffing and XL Specialty Insurance Company, Appellants.
BY THE COURT
workers'-compensation hearings, the Kansas Rules of
Evidence do not apply, and hearsay evidence may be admitted
if it is reliable enough to consider as part of the decision
at hand. The administrative law judge-and on review, the
Workers Compensation Appeals Board-have the discretion to
determine the sufficiency of the foundation provided for the
admission of evidence.
appellate court reviews the Workers Compensation Appeals
Board's decision about the sufficiency of the foundation
for the admission of evidence for abuse of discretion. The
appellate court reverses the discretionary decision if it was
based on a factual or legal error or if no reasonable person
would agree with it.
this case, the Workers Compensation Appeals Board abused its
discretion when it denied admission into evidence of a
lab-test result from a federally certified drug-testing lab
that was supported by foundation evidence that included: (1)
an affidavit from the out-of-state lab supervisor and the
lab's test documentation; (2) the testimony of an expert
witness who reviewed the lab's test documentation; and
(3) an affidavit and testimony from the hospital lab
supervisor where the sample tested was obtained.
from Workers Compensation Board.
Scott Gordon and Daniel C. Estes, of McCormick, Gordon,
Bloskey & Poirier, of Overland Park, for appellants.
D. Taff, of Topeka, for appellee.
Leben, P.J., Green and Malone, JJ.
there's a mismatch between what's at stake in a case
before us and how interesting the legal issue involved is
likely to be to the lay reader. This case is a prime example.
dispute is an important one. Gary Woessner lost his life
after an accident at work. His widow, Carmen, seeks death
benefits under the Kansas Workers Compensation Act.
Kansas Legislature has provided that the employer isn't
liable to pay benefits under that Act if an employee was
impaired by drugs at the time of a work accident and that
impairment contributed to the accident. Here, there's a
drug test showing that Gary had marijuana metabolites in his
system when he fell 15 feet from a jobsite catwalk for no
apparent reason. If he was impaired by marijuana and that
contributed to his fall, the employer has no liability for
whether Gary was impaired is an important issue. And the
employer's liability-or lack of it-mainly hinges on that
where the legal issue before us comes into focus. For every
piece of evidence in either an administrative hearing (which
is where the evidence is presented in
workers'-compensation cases) or in court, the party
offering the evidence must present some foundation for its
admission. By foundation, we mean a showing that the evidence
is reliable enough that we should consider it along with
other evidence in the case. And that's the issue we have
to focus on here: was the foundation the employer presented
for the admission of this drug-test result sufficient?
at least for the lay reader, to answer that question we must
wade through a series of provisions in the Workers
Compensation Act, along with one regulation adopted
administratively to implement the Act and several Kansas
court decisions in workers'-compensation cases going back
many decades. Here's a summary of what we found from
doing that work.
the general rule for administrative proceedings, including
workers'-compensation hearings, is that the rules for the
admission of evidence aren't as strict as those used in
court proceedings. Things are more informal, and the parties
can present their cases without dotting every i and crossing
every t-things that are expensive to do. Under these rules,
hearsay evidence (evidence about what someone who isn't
testifying as a witness said or reported) can be admitted as
long as we're reasonably confident it's reliable.
under that general rule, Gary's drug-test result should
be admissible if a reasonable foundation is shown that
they're reliable, even if testimony isn't offered
from every person involved in the testing and chain of
custody. Gary's employer presented ample evidence about
the reliability of the drug test. So the test result should
be admissible unless there's some specific provision in
the Workers Compensation Act that might preclude it.
we find no statutory provision in the Act (and no regulation
adopted to implement the Act) that would make it harder to
get the drug-test result in Gary's case admitted. In that
conclusion, we disagree with the Workers Compensation Appeals
Board, which concluded that the drug-test result was
inadmissible under a provision of the Act and an
concluded that the Board incorrectly excluded the drug-test
result, we must explain that there are two steps to
determining whether the employer's liability is
eliminated. Step one is the drug-test result. When, as here,
it shows that the employee had marijuana in his system at a
sufficient level, there's a conclusive presumption under
the Act that the employee was impaired. Step two, though, is
determining whether that impairment caused or contributed to
the accidental injury. In that step, the employee has the
burden to show by clear and convincing evidence that the
impairment didn't contribute to the injury.
the Board first concluded-in error-that the drug-test result
should not be considered at all, the Board separately
concluded as an alternative basis for its decision that
Carmen had shown that Gary's impairment didn't
contribute to the accident. But the Board's alternative
finding was made in a single paragraph of only four
sentences; the Board did not explain how it found the
testimony of one lay witness so persuasive on this point.
Since the Board's decision focused mostly on the
admissibility of the drug-test result and its explanation of
this alternative conclusion was so cursory, we are not
satisfied that the Board carefully weighed the evidence on
this point. We therefore return the case to the Board for
further consideration of this step in the analysis; the Board
should consider the drug-test result and all the other
that overview, we will proceed with an opinion that more
fully explores these issues. Since the foundation for the
drug-test results is the key to this appeal, we must first
set out in detail the evidence presented for that purpose.
Once we have set out that evidence, we will explain why we
have concluded that the employer presented a sufficient
foundation to have the drug-test result admitted and
considered along with other evidence in the case.
and Procedural Background
we go through the evidence related to the drug test, we must
explain how disputes in a workers'-compensation claim are
resolved. Although there can be preliminary hearings if there
are disputes about temporary payments or medical treatment,
most issues get decided at what's called the
"regular hearing." That's the equivalent of a
court trial, though the rules are a bit different, as
we'll explain more fully later in the opinion.
there's one difference we should note up front. Unlike a
court trial, in which all the evidence is presented in front
of a judge-who can then rule on objections as they are
made-most of the evidence in a workers'-compensation case
comes through depositions. At those depositions, a witness is
present, along with attorneys for the parties and a court
reporter, and the witness gives sworn testimony, just as if
in court. But the administrative law judge isn't present
for the depositions, so the attorneys make objections that
must be ruled on later. That leaves both parties guessing a
bit about how to proceed.
aspect of the way workers'-compensation cases are handled
makes this complicated for the attorneys and the parties-the
administrative law judge doesn't have the final say on
what evidence is admitted. That's because either party
may appeal to the Workers Compensation Appeals Board, and the
Board makes its own independent judgment. So even when the
administrative law judge rules that something is admissible
at the regular hearing, there's still the possibility
that the Board might take a different view.
that overview, let's review the evidence presented about
Gary's drug testing. Through several exhibits and the
testimony of witnesses, we'll learn that 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. We'll also learn
that a part of the sample taken when Gary was treated at
Stormont Vail was later sent to LabCorp, an independent
testing laboratory; LabCorp reported the presence of
metabolites of marijuana. (These marijuana metabolites are
the inactive compounds that remain after the body has
metabolized THC.) Of course, we must focus not only on these
reported results but also on the foundation provided to show
that the results are reliable enough to consider in a case
about workers'-compensation benefits.
parties agreed at the start of the regular hearing that the
only contested issue was whether marijuana intoxication
relieved the employer from liability to pay
workers'-compensation benefits. Over objections from
Carmen's attorney, the administrative law judge admitted
two exhibits about the drug tests: Exhibit B, an affidavit
and business records from Shelley D'Attilio, the lab
director at Stormont Vail; and Exhibit C, an affidavit and
business records from David St. John, the lab supervisor for
the LabCorp facility in Mississippi where Gary's urine
sample was tested.
attorney objected to the D'Attilio affidavit on two
grounds: hearsay and foundation. The administrative law judge
overruled the objections, noting that "hearsay is
technically admissible at administrative proceedings"
and that the admission of Exhibit B would not prevent Carmen
from challenging the statements made in the affidavit.
attorney made the same hearsay and foundation objections to
the St. John affidavit. The judge said that the LabCorp
material "goes to testing, . . . not medical
treatment" and that no statute precluded the admission
of hearsay evidence that wasn't related to medical
treatment. The judge again noted that Carmen could still
challenge the accuracy of the information with argument and
affidavit, labelled a chain-of-custody affidavit, told what
had happened to Gary's urine specimen. She said that she
knew about these facts based on her review of records kept by
Stormont Vail in the ordinary course of business and her
knowledge of the procedures of the lab she directs.
D'Attilio identified each step in handling the specimen:
• Hospital employee Sarah Persons took the sample for
medical testing at about 5:41 p.m. on December 19, 2014.
• About 10 minutes later, laboratory employee Kerry
Coulter received the specimen.
• Another lab employee, Larry Reid, then put a portion
of the specimen on an analyzer for testing; the machine
showed a positive result for THC.
• Yet another lab employee, Deb Redler, verified the
positive result at 6:19 p.m.
• Under standard procedures, the specimen then would
have been transferred to a locked toxicology refrigerator for
the night; the next morning, it would have been moved to a
freezer for long-term storage. Only Stormont Vail lab staff
doing toxicology work had access to that freezer.
• After getting a request for further testing, lab
employee Paul Brackey retrieved the sample from the freezer,
thawed it, and sent a portion to LabCorp in a sealed
container. That container, accompanied by a chain-of-custody
form, was given to a dedicated courier who took samples daily
to LabCorp. The remaining sample was then returned to
long-term storage in the Stormont Vail toxicology freezer.
documents were attached to the D'Attilio affidavit. One
was the chain-of-custody form that was apparently sent to
LabCorp. At the top, it referred to the specimen by
number-0089146682. That form was signed by Paul Brackey and
said that the specimen had been released to the "LabCorp
Courier." The other document was the report of the
drug-test result done at Stormont Vail. It showed a positive
result for THC with a cutoff value of 50 nanograms per
milliliter. The report also said: "Results not
confirmed. May not meet forensic requirements. Confirmation
by GC/MS available upon request."
affidavit, St. John, the lab supervisor for LabCorp's
facility in Southaven, Mississippi, said he had reviewed the
business records from the lab related to Gary's testing
and that these records had been made at or near the time of
each event noted. He said LabCorp received sample No.
0089146682 "with seals intact and with no evidence of
tampering" and that lab personnel then handled the
specimen under proper procedures, including keeping
chain-of-custody documentation. He said that lab staff used
the gas chromatography/mass spectrometry (GC/MS) method,
"which provides accurate identification and quantitation
of a drug or drug metabolite." He said that the testing
found a positive result for marijuana metabolites, a result
confirmed and reported by a certifying scientist. St. John
also said that LabCorp's Southaven lab is federally
certified for drug testing.
documents were attached to St. John's affidavit:
• His letter report stating that the test result showed
marijuana metabolites at a level of 189 nanograms per
• A subpoena for the "Litigation Claim Packet"
related to Woessner's test.
• A "Laboratory Data Package" that contained
the lab's documents related to testing, confirmation, and
chain-of-custody for Woessner's sample. The package also
had a curriculum vitae for Lance Presley, the lab director;
St. John, the lab supervisor; and Kathryn Atkins, the
scientist who confirmed the GC/MS result for Woessner.
of Dr. Nason Lui
Nason Lui was the surgeon on duty in the Stormont Vail
emergency room when Gary was transferred there from a smaller
hospital after his accident. Dr. Lui said Gary was
"basically unconscious" when he arrived, and his
status triggered staff in the emergency room to perform a set
of tests, including a drug screen. Dr. Lui's name was
listed as the ordering physician on Stormont Vail's
records, but he said that because things must move quickly in
the emergency room, tests like Gary's drug screen are
automatically ordered based on hospital protocols and the
though the test was ordered automatically, Dr. Lui said that
it was ordered to give Gary good medical treatment;
especially for an unconscious patient, treating doctors need
lab tests to check for possible issues. Dr. Lui noted the
positive THC test in his hospital chart note.
hospital's toxicology report showing the positive THC
test was an exhibit at the deposition. Dr. Lui said that this
document was a hospital record that had been kept in the
ordinary course of treating Gary. The report noted that
Gary's urine had been obtained by a catheter and showed a
positive result for THC with the 50 nanogram-per-milliliter
of Shelley D'Attilio
is the lab director at Stormont Vail Hospital. She said she
was asked by a hospital attorney to look into the procedures
involved with Gary's urine sample and its testing. She
mostly reviewed the lab's records, though she also talked
with Paul Brackey, the lab scientist in the hospital's
toxicology group who forwarded a portion of the sample to
also explained a difference in the chain-of-custody
procedures used when the testing is being done for medical
purposes rather than to meet some legal requirement (like the
confirmatory test obtained here from LabCorp). When the
testing is for medical purposes, she said that strict
chain-of-custody documentation rules don't apply. For
that reason, while the records show that the urine sample was
obtained by Sarah Persons and was received in the lab by
Kerry Coulter, she said that someone would send it through
the hospital's pneumatic tube system to the lab. We
don't necessarily know who did that. Nor ...