Lab test showing employee pot use admissible

An appellate court in Kansas on Friday deemed admissible a drug test that allegedly found marijuana in the urine of a worker who fell 15 feet off a jobsite catwalk.

The widow of Gary Woessner filed for death benefits following her husband’s fall, which led to a posthumous drug test that found marijuana metabolites in his system when he fell “for no apparent reason,” according to documents in Gary L. Woessner, deceased v. Labor Max Staffing and XL Specialty Insurance Co., filed in the Court of Appeals of Kansas in Topeka, Kansas.

Kansas workers compensation law states that employers are not liable for industrial accidents “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,” records state.

At issue was whether the drug test submitted is admissible without testimony from those who handled the urine from the time it was extracted to the time of testing, according to records. “The employer's liability — or lack of it — mainly hinges on that drug-test result,” records states.

The Workers Compensation Appeals Board concluded that the drug-test result was inadmissible under a provision of state law governing evidence and an administrative regulation.

The appeals court, with one judge dissenting, disagreed, ruling that “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.”

“Because the Board improperly excluded the LabCorp test result, we reverse the Board's decision and remand the case to the Board for further proceedings,” the ruling states.

The dissenting judge wrote that the proof is “inadequate,” finding “they were created by some person other than a physician or surgeon. Indeed, respondent presented no testimony of the technician responsible for performing the (marijuana) test on Gary's urine. … Again, no witnesses were called by respondent to testify as to the procedures used in testing Gary's urine sample for marijuana.”

Officials and attorneys at Labor Max Staffing and its insurer XL Specialty Insurance could not be immediately reached for comment. Frank Taff, the Topeka, Kansas-based attorney for Ms. Woessner, said Feb. 20 that he plans to file an appeal. 

Story was updated Feb. 20 to include attorney comment.