Last month, the Kansas Supreme Court issued a plurality opinion that makes it easier for employees to obtain workers compensation benefits despite having positive drug test results at the time of the work accident. In Woessner v. Labor Max Staffing and XL Speciality Insurance Company, No. 119,087 (Kan. 2020), the workers compensation claimant fell off a catwalk at work for no apparent reason, suffering a severe traumatic head injury. Claimant later died and his widow claimed workers compensation death benefits.
A drug test completed at the hospital just after the accident indicated a positive result for THC, marijuana's psychoactive ingredient, at a level of at least 50 ng/ml of urine. A later test confirmed a positive result with a level of 189 ng/ml of marijuana metabolite. The Kansas Workers Compensation Act triggers a rebuttable presumption that the impairment contributed to the accident when the level of marijuana metabolite exceeds 15 ng/ml. The presumption can be overcome if the employee shows by clear and convincing evidence that the impairment did not contribute to the work injury. See K.S.A. 44-501(b)(1)(C). Labor Max denied workers compensation benefits on this basis.
In its 33-page plurality opinion, the Kansas Supreme Court held that it was "highly probable" that the claimant's impairment did not contribute to his accident. It made this holding based on testimony from one of the claimant's co-workers who saw him shortly before the accident and who stated that he saw no signs of claimant being impaired, such as stumbling, unable to concentrate, anxious, drowsy, sleepy, or speaking slowly. The Court also made its decision despite the employer's expert testimony that "unlike alcohol, which has physiological effects known to the general population, marijuana causes alterations in sensory input that may not be apparent to a layperson." The Court noted that the employer's expert "could not give an opinion on 'the level of impairment. . . .'" See Woessner, at 23.
All the Supreme Court Justices agreed on the narrow holding that the drug test results were admissible without supporting foundational testimony, but for different reasons. Several of the Justices issued separate concurrences, all based on disagreement on how to translate a regulation (K.A.R. 51-3-5a(a)) that provides certain requirements for admission of reports, records, or statements.
Employers and their legal counsel need only know that drug test results are admissible at a final hearing with or without foundational testimony. In addition, the chain-of-custody of such drug test need not be proven beyond a reasonable doubt, as in criminal cases. Rather, "[t]he test for chain of custody is a reasonable certainty that the object has not been materially altered. Any deficiency in the chain of custody goes to the weight of the evidence rather than its admissibility." See Woessner, at 20 (quoting State v. Horton, 283 Kan. 44, 62, 151 P.3d 9 (2007)).
Article written by Whitney L. Casement, GSEP Senior Associate Attorney.
This article is for informational purposes, is not intended to and does not constitute legal advice, and this post does not in any way create an attorney-client relationship. For legal advice or representation requests, contact GSEP's employment law team. https://www.gseplaw.com/employment-law-litigation.
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