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Woessner v. Labor Max Staffing

Court of Appeals of Kansas

February 15, 2019

Gary L. Woessner, Deceased, Appellee,
Labor Max Staffing and XL Specialty Insurance Company, Appellants.


         1. In 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.

         2. An 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.

         3. In 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.

          Appeal from Workers Compensation Board.

          J. Scott Gordon and Daniel C. Estes, of McCormick, Gordon, Bloskey & Poirier, of Overland Park, for appellants.

          Frank D. Taff, of Topeka, for appellee.

          Before Leben, P.J., Green and Malone, JJ.

          LEBEN, J.

         Sometimes 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.

         The 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.

         But the 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 his death.

         So whether Gary was impaired is an important issue. And the employer's liability-or lack of it-mainly hinges on that drug-test result.

         That's 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?

         Unfortunately, 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.

         First, 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.

         Second, 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.

         Third, 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 administrative regulation.

         Having 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.

         Although 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 evidence.

         With 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.

         Factual and Procedural Background

         Before 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.

         But 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.

         Another 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.

         With 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.

         The Regular Hearing

         The 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.

         Carmen's 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.

         Carmen's 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 other evidence.

         D'Attilio's 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.

         Two 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."

         In his 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.

         Several 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 milliliter.
• 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.

         Deposition of Dr. Nason Lui

         Dr. 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 patient's status.

         Even 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.

         The 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 cutoff level.

         Deposition of Shelley D'Attilio

         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 LabCorp.

         She 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 ...

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