Woessner v. Labor Max Staffing

• Decision Date: 28 August 2020
• Docket Number: No. 119,087,119,087
• Citation: 471 P.3d 1
• Parties: Gary L. WOESSNER, Deceased, Appellee, v. LABOR MAX STAFFING and XL Specialty Insurance Company, Appellants.
• Court: Kansas Supreme Court

471 P.3d 1

Gary L. WOESSNER, Deceased, Appellee,

v.LABOR MAX STAFFING and XL Specialty Insurance Company, Appellants.

No. 119,087

Supreme Court of Kansas.

Opinion filed August 28, 2020.

J. Scott Gordon and Daniel C. Estes, of McCormick, Gordon, Bloskey & Poirier, PA, of Overland Park, were on the briefs for appellant.

Frank D. Taff, of Topeka, was on the briefs for appellee.

The opinion of the court was delivered by Biles, J.:

Gary L. Woessner died after falling 15 feet from a jobsite catwalk for no apparent reason. His widow was awarded death benefits under the Kansas Workers Compensation Act. The employer appealed. In the claim proceedings leading up to this court's review, sharp disagreements focus on two points: (1) a drug test's admissibility showing Woessner had a large quantity of marijuana metabolites in his system; and (2) whether 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 not liable when an employee's work-related injury was contributed to by that employee's marijuana consumption. K.S.A. 2019 Supp. 44-501(b)(1)(A). And the law conclusively presumes an employee was impaired if testing shows a concentration of marijuana metabolites at the time of injury at or above a statutorily set level. K.S.A. 2019 Supp. 44-501(b)(1)(C). The law also creates a rebuttable presumption that the accident was contributed to by that impairment, which the employee can overcome by clear and convincing evidence. K.S.A. 2019 Supp. 44-501(b)(1)(D). Woessner's test results were well above the statutory level needed to trigger these presumptions.

We hold the drug test results were admissible but agree with the Workers Compensation Board that clear and convincing evidence shows the conclusively presumed impairment did not contribute to Woessner's accident. We affirm the Board's award.

FACTUAL AND PROCEDURAL BACKGROUND

While working for Labor Max Staffing at a feed mill, Woessner fell from a catwalk and suffered a severe traumatic head injury

. No one saw him fall, and the cause remains unexplained. He died about six months later.

Woessner was taken by ambulance to Stormont-Vail Hospital in Topeka. Dr. Nason Lui, the emergency room on-call trauma surgeon, followed hospital protocols for an unconscious patient and ordered blood and toxicology screens

. The toxicology screen was performed on a urine sample from a catheter. It indicated a positive result for THC, marijuana's psychoactive ingredient, at a level of at least 50 ng/ml of urine.

During Woessner's months of treatment at various facilities, Labor Max paid workers compensation benefits for his temporary total disability and for his treatment and care. Labor Max requested additional testing of the urine sample stored at Stormont-Vail. LabCorp performed GC/MS (gas chromatography

/mass spectrometry ) confirmatory testing and obtained a positive result with a confirmed level of 189 ng/ml of marijuana metabolite. State law triggers the conclusive impairment presumption at or above 15 ng/ml of marijuana metabolite. See K.S.A. 2019 Supp. 44-501(b)(1)(C).

Labor Max stopped paying on the workers compensation claim. See K.S.A. 2019 Supp. 44-501(b)(1)(A) (disallowing compensation when the employee's injury, disability, or death was contributed to by the use or consumption of alcohol or drugs). This set the stage for further workers compensation proceedings on behalf of Woessner's widow, Carmen Woessner.

At a regular hearing before an administrative law judge, the parties agreed the only contested issue was whether marijuana intoxication relieved Labor Max's liability to pay workers compensation benefits. After reviewing the evidentiary record, then consisting of several witnesses' depositions, the administrative law judge turned to the exhibits the parties marked to be offered at the hearing. Two Labor Max exhibits are relevant to this appeal. The first (Exhibit B) is a "chain of custody" affidavit from Shelley D'Attilio, Stormont-Vail's laboratory services director. The second (Exhibit C) is a "chain of custody" affidavit from David St. John, the lab supervisor for the LabCorp facility that tested the stored urine sample.

D'Attilio's affidavit contained her sworn statements that she knew the facts based upon her review of the records kept by Stormont-Vail in the ordinary course of business and her knowledge of the lab's procedures.

She identified each recorded step in handling the sample beginning with its collection. She detailed the records of the sample's screening and long-term storage. And she swore access to the storage location was limited to Stormont-Vail laboratory toxicology staff. She outlined Stormont-Vail's record of the processing of LabCorp's request for a portion of the sample and its retrieval and transfer to a LabCorp courier by a Stormont-Vail employee.

Two documents were attached to D'Attilio's affidavit. One was a chain-of-custody form sent to LabCorp with the urine sample. It referred to the specimen number and was signed by the Stormont-Vail lab employee who retrieved the sample from long-term storage and delivered it to the "LabCorp Courier." The other document was the Stormont-Vail drug screening-test result report. It showed a positive result for THC with a cutoff value of 50 ng/ml. It also stated: "Results not confirmed. May not meet forensic requirements. Confirmation by GC/MS available upon request."

St. John's affidavit similarly laid out his LabCorp facility's records of the sample's handling. It indicated St. John reviewed the business records from the lab related to the sample's testing. He believed they detailed each event at or near the time something happened. St. John swore that: LabCorp received the sample with no evidence of tampering; lab personnel then handled it under proper procedures, including keeping chain-of-custody documentation; LabCorp staff used the GC/MS method, which found a positive result for marijuana metabolites; this result was confirmed and reported by a certifying scientist; and the lab was federally certified for drug testing.

The documents attached to St. John's affidavit included the LabCorp drug test results. Those results were reflected in both St. John's letter report showing marijuana metabolites at a level of 189 ng/ml confirmed by GC/MS analysis, and a "Laboratory Data Package" containing the lab documents relating to testing, confirmation, and chainof-custody for the urine sample.

The ALJ admitted both exhibits over Carmen's hearsay and foundation objections.

After the hearing, Dr. Christopher Long, a board-certified forensic toxicologist, testified in an evidentiary deposition as an expert witness for Labor Max. When discussing Exhibit C, Dr. Long noted the LabCorp sample identified marijuana metabolites in the amount of 189 ng/ml. He said, if an individual smoked a "single joint, you'd be lucky to test positive for 24 hours" or, "[a]t most, if it was a big joint, three days." He admitted "if you're taking a heavier dose, then, yes, it could go up to a week." But Dr. Long disagreed with LabCorp that prolonged marijuana use could show up in urine samples one to two months later.

Dr. Long admitted that "I don't know if [Woessner's] death was contributed to by the marijuana. Other than the fact that it's present, that's all I can state." And he could not say "the active ingredient was present because they didn't test for it. So I don't know the level of impairment." He explained the subjective, hallucinogenic nature of marijuana meant that "[g]enerally," a layperson could not determine when someone else had consumed it. But he admitted it was possible that an individual who had consumed marijuana would smell of it, would have reddened eyes or a cough

, or would appear restless, or unable to concentrate—although he judged some of these possible symptoms "not probable."

In support of the compensation claim, Carmen testified she did not see Woessner the morning of his accident. He had spent the night with their daughter and grandchildren. Carmen was aware of only one instance in which Woessner consumed marijuana. This was when he smoked it over lunch about a month before the accident. She said that because she "was with him most of the time" and had never seen him use marijuana, she "figured that was just an isolated thing." She also represented their daughter reported Woessner had not consumed marijuana around her the night before the accident.

Carmen also presented testimony from mill assistant Thomas McGraw, who worked with Woessner every day at the mill, although Woessner worked in sanitation. They were not social acquaintances. McGraw testified Woessner was cleaning a catwalk in the mill the day of the accident. Shortly before Woessner's fall, McGraw spent between 10 and 15 minutes near him while loading a truck on the mill's catwalk. McGraw estimated he saw Woessner "no more than five minutes" before the fall. He appeared "normal" to McGraw that day: he did not seem restless, drowsy, sleepy, agitated, anxious, restless, hostile, withdrawn, unresponsive, or paranoid.

McGraw did not notice anything wrong with Woessner before he fell. He did not notice whether Woessner's eyes were reddened and did not notice any unusual odors about Woessner's person. He did not stumble, did not appear to have tremors in his hands, and did not have a cough

. McGraw characterized Woessner as "a good worker" whom he had observed many times before. And on the day he fell, Woessner was "always pretty much the same" as he had been previously. But McGraw conceded he had no expertise in identifying drug impairment symptoms.

The ALJ, Board, and Court of Appeals each took different stances on the admissibility of the LabCorp drug test results and whether Carmen's evidence overcame the statutory causation presumption....