Woessner v. Labor Max Staffing
| Decision Date | 15 February 2019 |
| Docket Number | No. 119,087,119,087 |
| Parties | Gary L. WOESSNER, Deceased, Appellee, v. LABOR MAX STAFFING and XL Specialty Insurance Company, Appellants. |
| Court | Kansas Court of Appeals |
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.
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.
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 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:
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Woessner v. Labor Max Staffing
...clear and convincing evidence demonstrated drug impairment did not contribute to the accident. See Woessner v. Labor Max Staffing , 56 Kan. App. 2d 780, 781, 437 P.3d 992 (2019). How these disputes are resolved determines whether benefits were properly awarded.Under the Act, an employer is ......
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State v. Kellum
...so there's no one-size-fits-all rule beyond the idea that the evidence be reliable enough to consider." Woessner v. Labor Max Staffing , 56 Kan. App. 2d 780, 793, 437 P.3d 992 (2019), rev. granted 310 Kan. –––– (September 19, 2019). The district court thus has considerable discretion when d......