                                        No. 119,087

             IN THE COURT OF APPEALS OF THE STATE OF KANSAS

                              GARY L. WOESSNER, Deceased,
                                       Appellee,

                                             v.

                              LABOR MAX STAFFING and
                          XL SPECIALTY INSURANCE COMPANY,
                                     Appellants.


                              SYLLABUS BY THE COURT

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. Opinion filed February 15, 2019. Reversed and
remanded with directions.


        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.

                                                  2
       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.

                                              3
       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

                                              4
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


                                               5
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.


                                               6
       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.




                                              7
    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.


                                              8
           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,

                                             9
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
did D'Attilio report specifically who placed the sample into the locked toxicology
refrigerator; she merely reported that this was the normal practice in the lab.


       D'Attilio said that all the records she reviewed had been maintained by Stormont
Vail Hospital in the ordinary course of business; as lab director, she was responsible for
maintaining these records. She based the statements in her affidavit on her review of
these lab records. Her review of the lab records about Gary's drug test showed nothing
suggesting any irregularity or error. As for the test result from her hospital's lab (a
positive indicator for THC), she said that "[n]othing in my investigation would indicate to
me that there was a possibility that this result was incorrect." From her review of the
records, lab employee Larry Reid put the sample into a machine to be tested, the machine
produced a resulting value, and lab employee Deb Redler reviewed and "verified" that
result. When she did so, the test result would have been transferred to Gary's hospital
record so that treating physicians would have had it available to them.


       D'Attilio also said that proper procedures were followed to prevent contamination
of Gary's sample while it was kept at Stormont Vail. She said that LabCorp regularly
does follow-up testing for Stormont Vail; the hospital sends samples to LabCorp's Kansas
City facility through a daily courier.

                                              10
Deposition of Dr. Christopher Long


       Dr. Christopher Long has a Ph.D. in toxicology and is a board-certified forensic
toxicologist. He was hired as an expert witness by Labor Max and its insurance carrier.
Dr. Long directs the forensic toxicology laboratory at the St. Louis University School of
Medicine, has directed federally certified labs that do drug testing, and has done national
inspections of federally certified labs for federal authorities.


       He reviewed the lab tests and documentation from both Stormont Vail and
LabCorp. That included Exhibit C, the affidavit from LabCorp lab supervisor St. John
and the LabCorp testing records. Part of Exhibit C was called the LabCorp litigation
package; Dr. Long said that he could determine whether appropriate chain-of-custody
procedures were followed from the litigation package. Dr. Long said that he had
inspected "most, if not all," of the LabCorp labs around the country, apparently during
the time he was doing inspections of federally certified labs.


       Dr. Long explained the differences between the test done at Stormont Vail, called
an immunoassay test, and the one done at LabCorp using gas chromatography/mass
spectroscopy, also called GC/MS. An immunoassay test measures an allergic reaction in
the test tube, but it can have false-positive results and must be confirmed. A GC/MS test
is "the gold standard in the field" and identifies the molecular structure of the material
being tested.


       Dr. Long said that the initial test at Stormont Vail had a cutoff level of 50
nanograms per milliliter; if the result doesn't exceed 50 in that test, it's reported as
negative. He said that the Stormont Vail test result showed a level above 50 nanograms
per millileter. Dr. Long testified that the LabCorp GC/MS testing showed a marijuana-


                                               11
metabolite level of 189 nanograms per milliliter, which confirmed the earlier test result.
Dr. Long said that he could rule out the possibility that Gary's test was a false positive.


       The LabCorp report had a comment: "Temperature out of acceptable range."
Dr. Long explained that labs must check the temperature of urine samples as a guard
against cheating the test—a person who comes to get drug tested but has a container of
drug-free urine with them. In that case, the urine sample would be closer to room
temperature than body temperature, revealing an attempt to cheat. Here, though, the
sample had been taken by catheter months before and then frozen, so the temperature
wouldn't be expected to be in the acceptable range under normal urine-testing protocols.
Dr. Long said that the temperature of the sample would have had no impact on the test
result here.


        Based on the level of metabolites in the LabCorp test, Dr. Long said that Gary had
ingested marijuana "within 6 to 12 hours, maybe 24 hours on the outside." He said that
"the concentration in the urine reflects the acuteness of the dose." Because the LabCorp
testing looked for marijuana metabolites (not the active and hallucinogenic ingredient,
THC, itself), Dr. Long said that he could not give an opinion about Gary's level of
impairment at the time of his accident.


       Dr. Long said that he had gone through all the lab records "in detail." His
conclusion: "There's no doubt in my mind that the tests accurately reflect Mr. Woessner's
specimen." He added that the opinions he had given in his testimony and written report
were to a reasonable degree of scientific certainty in the field of toxicology.


Decision of the Administrative Law Judge


       The administrative law judge determined that the drug-test results, including
LabCorp's GC/MS test, were admissible. That triggered the statutory presumption that

                                             12
Gary was impaired at the time of his accident, and the judge found that Carmen hadn't
presented sufficient evidence to rebut that presumption. Based on these conclusions, the
judge ruled in favor of Labor Max and its insurance carrier and did not order any further
payments to Carmen. Carmen then appealed to the Workers Compensation Appeals
Board.


Decision of the Workers Compensation Appeals Board


         The Board concluded that the LabCorp GC/MS test result was not admissible. The
Board relied on a statute, K.S.A. 2014 Supp. 44-501(b)(3), and a regulation, K.A.R. 51-3-
5a. The statute provides several requirements for the admission of drug-test results from
"a sample collected by an employer," including that "the foundation evidence . . .
establish, beyond a reasonable doubt, that the test results were from the sample taken
from the employee." (Emphasis added.) K.S.A. 2017 Supp. 44-501(b)(3). Although this
sample was collected by Stormont Vail, not Gary's employer, the Board apparently
applied this statutory provision because Labor Max had requested the additional LabCorp
test. The Board noted that no one who directly handled Gary's sample had testified and
concluded: "Without a demonstrable and reliable chain of custody, it would be
impossible to conclude, beyond a reasonable doubt, that a given sample was from [Gary]
and that the same sample was used for the drug test."


         The regulation cited by the Board, K.A.R. 51-3-5a, requires that some "reports,
records, or statements" not be admitted without the testimony of the person who made
them. We'll discuss that regulation in greater detail later in this opinion, but the Board
applied it to the LabCorp test result. Because no LabCorp personnel testified at the
regular hearing or in a deposition, the Board held that the LabCorp test result couldn't be
admitted.




                                             13
       Without that test result, there would be no statutory presumption that Gary was
impaired at the time of his accident. The Board said the other evidence of impairment
wasn't sufficient to show that any impairment from marijuana usage contributed to the
accident, so Carmen was entitled to the remaining benefits due under the Workers
Compensation Act.


       In the alternative, the Board said that "even if the [LabCorp] . . . test results are
admissible, there was clear and convincing evidence rebutting the presumption that
[Gary] was impaired at the time of his accident." The Board cited the testimony of one of
Gary's coworkers, Thomas McGraw, who said that he hadn't noticed any signs that Gary
was impaired before the accident.


                                          ANALYSIS


       The key question is whether the LabCorp test result should have been admitted
into evidence and considered by the Board. Before we get to that, though, we need to put
the general rules for the fact-finding process in workers'-compensation proceedings in
context.


The Rules of Evidence for Workers'-Compensation Hearings


       The evidence is presented in an administrative proceeding, not a court trial, and
that makes a difference. In court, formal rules of evidence apply—in Kansas, they are set
out in statutes called the Kansas Rules of Evidence, found at K.S.A. 60-401 to 60-485.
But those rules don't generally apply in administrative hearings, and the Legislature has
specifically made them inapplicable to workers'-compensation hearings.


       A provision in the Workers Compensation Act, K.S.A. 2017 Supp. 44-523(a), says
that neither the administrative law judge nor the Board are "bound by technical rules of

                                              14
procedure." And by "'technical rules of procedure,'" the Act refers to the Kansas Rules of
Civil Procedure and "particularly" the Kansas Rules of Evidence. Roberts v. J.C. Penney
Co., 263 Kan. 270, 278, 949 P.2d 613 (1997). That means that the Kansas Rules of
Evidence don't apply, so the admissibility of evidence is "more liberal in compensation
cases" than in court cases. Gasswint v. Superior Industries Int'l-Kansas, Inc., 39 Kan.
App. 2d 553, 560, 185 P.3d 284 (2008).


       One of the main differences is the treatment of hearsay evidence—an out-of-court
statement made by someone who isn't testifying when presented to prove that the out-of-
court statement was true. That's part of what we're dealing with here—the out-of-court
statement from David St. John, the LabCorp lab supervisor, about the test result. Labor
Max wants us to accept that test result as true. And since St. John just sent an affidavit
and wasn't deposed, that makes his statements hearsay when offered to prove that what he
says is true.


       But hearsay evidence can be admitted in administrative proceedings—and for
good reason. It costs money to bring everyone involved in every aspect of a dispute either
to the hearing or to a deposition. The time of the attorneys and the transcripts of the court
reporters can be expensive, and the time it takes to assemble all of these people can delay
getting a result. So administrative proceedings are streamlined to strike a balance
between strictly following all the evidentiary rules and allowing just about anything to be
considered. The goal for these proceedings is to get a fair result within a reasonable time
and at a reasonable cost. To help accomplish that goal, for most Kansas administrative
hearings "[e]vidence need not be excluded solely because it is hearsay." K.S.A. 77-
524(a).


       That specific provision, part of the Kansas Administrative Procedure Act, doesn't
apply to workers'-compensation proceedings. But K.S.A. 77-524(a), based on a model
state-administrative-procedure statute, is quite similar to K.S.A. 2017 Supp. 44-523(a),

                                             15
the provision we've mentioned from the Workers Compensation Act. Both provide that
officers deciding what comes into evidence aren't "bound by technical rules of procedure"
and "shall give the parties reasonable opportunity to be heard and to present evidence."
K.S.A. 2017 Supp. 44-523(a); K.S.A. 77-524(a). And while there's no statutory statement
in K.S.A. 2017 Supp. 44-523(a) indicating that this means that hearsay evidence is
allowed, that has long been the understanding under the Workers Compensation Act. See
Neal v. Hy-Vee, Inc., 277 Kan. 1, 22, 81 P.3d 425 (2003) (finding hearsay evidence
sufficient to support initial award); Shindhelm v. Razook, 190 Kan. 80, 84, 372 P.2d 278
(1962) (finding no error in consideration of hearsay evidence in workers'-compensation
death case); Pence v. Centex Construction Co., 189 Kan. 718, 371 P.2d 100 (1962)
(citing cases from 1931 to 1961 allowing hearsay evidence in Kansas workers'-
compensation hearings). Consistent with that understanding, an administrative regulation
for workers'-compensation hearings explicitly says that "[h]earsay evidence may be
admissible unless irrelevant or redundant." K.A.R. 51-3-8(c).


       Even so, that doesn't mean that all hearsay evidence must be admitted. When you
get down to "Joe said that Mary said that Jim said that Bob said that he had heard that
someone pushed Gary off the catwalk," we all get the sense that what we're hearing just
isn't reliable enough to make the basis of a good decision. So what an administrative law
judge or the Board must consider is whether the hearsay evidence is reliable enough to
consider as part of the decision at hand. And that decision is made against the background
considerations of K.S.A. 2017 Supp. 44-523(a) and K.A.R. 51-3-8(c)—that technical
rules of evidence don't apply, evidence is more easily admitted than in civil and criminal
trials, and evidence isn't rejected just because it's hearsay.


The Role of the Board and of the Appellate Court on Review


       Decisions about the admission of evidence are made in workers'-compensation
hearings by the administrative law judge or the Board, with the Board having final say.

                                               16
See K.S.A. 2017 Supp. 44-523(a); K.S.A. 2017 Supp. 44-555c(a). Here, we are
considering whether the Board's decision to exclude hearsay evidence about the LabCorp
test result was proper. Everyone recognizes that the test result is relevant—the dispute is
about whether foundation evidence about the chain of custody was enough to admit
evidence of the test result.


       Evidentiary foundations come in all shapes and sizes, so there's no one-size-fits-all
rule beyond the idea that the evidence be reliable enough to consider. In these situations,
the party making the admissibility decision—here, the Board—has discretion to
determine how much of a foundation is enough.


       On appeal, we review that discretionary call for abuse of discretion. See State v.
Lowery, 308 Kan. 1183, 1232, 427 P.3d 865 (2018); Garetson Brothers v. American
Warrior, Inc., 51 Kan. App. 2d 370, 383, 347 P.3d 687 (2015); 101 C.J.S. Workers'
Compensation § 1462. That means that we reverse the Board's decision only if that
decision was based on a factual or legal error or if no reasonable person would agree with
the decision. See Garetson Brothers, 51 Kan. App. 2d at 383; Rogers v. ALT-A&M JV, 52
Kan. App. 2d 213, 217, 364 P.3d 1206 (2015).


       With these standards in mind, we turn to the Board's decision. It decided that a
statute, K.S.A. 2017 Supp. 44-501(b)(3), and an administrative regulation, K.A.R. 51-3-
5a, precluded the admission of the LabCorp test result. As we'll explain, though, the
Board's analysis of these provisions is flawed, and a decision based on a legal error is an
abuse of discretion. Garetson Brothers, 51 Kan. App. 2d at 383.


The Statutory Provision Relied on by the Board to Exclude the Lab Result


       Let's start with the statutory provision, K.S.A. 2017 Supp. 44-501(b)(3). The full
statutory section, K.S.A. 2017 Supp. 44-501, provides that employees don't get

                                             17
compensated for an injury in some situations, such as when the employee deliberately
fails to use protection equipment furnished by the employer. See K.S.A. 2017 Supp. 44-
501(a)(1)(C). In our case, the focus is on subsection (b), which disallows compensation
when the employee's injury, disability, or death was contributed to by the use or
consumption of alcohol or drugs. See K.S.A. 2017 Supp. 44-501(b)(1)(A).


       If there's a lab test confirmed through GC/MS testing showing a concentration of a
listed drug above certain levels, then the employee is "conclusively presumed . . .
impaired," and there's a rebuttable presumption that the impairment contributed to the
employee's injury, disability, or death. See K.S.A. 2017 Supp. 44-501(b)(1)(C); K.S.A.
2017 Supp. 44-501(b)(1)(D). For marijuana metabolites, a confirmed test result at or
above 15 nanograms per milliliter triggers the impairment presumption; Gary's level of
189 far exceeds that. But the employee may overcome that presumption by presenting
"clear and convincing evidence" that the impairment didn't contribute to the injury,
disability, or death. K.S.A. 2017 Supp. 44-501(b)(1)(D).


       In addition to these substantive rules—under which an employee may lose
workers'-compensation benefits—the Kansas Legislature also provided some rules about
the admissibility or inadmissibility of test results. In K.S.A. 2017 Supp. 44-501(b)(2), the
Legislature set out a rule of admissibility, providing that test results "shall be admissible"
if the employer establishes one of several things. For example, if the employer shows that
a test result was obtained during an autopsy and not at the employer's direction, the result
is admissible. K.S.A. 2017 Supp. 44-501(b)(2)(B). But none of the specific situations
mentioned in subsection (b)(2) match the facts of our case. Neither party suggests
subsection (b)(2) applies here, and the Board did not rely on it.


       The Board instead relied on subsection (b)(3), which sets out a rule of
inadmissibility, making test results inadmissibile in some circumstances. K.S.A. 2017
Supp. 44-501(b)(3) applies only to "the results of a chemical test performed on a sample

                                              18
collected by an employer." (Emphasis added.) For those samples, the employer must
show several specific things, such as that the sample was collected promptly and tested
by an approved lab. But there's also an evidentiary foundation requirement for these test
results: "[T]he foundation evidence must establish, beyond a reasonable doubt, that the
test results were from the sample taken from the employee." K.S.A. 2017 Supp. 44-
501(b)(3)(E). Relying on this statutory provision, the Board said that without testimony
from someone who had directly handled Gary's sample, "it would be impossible to
conclude, beyond a reasonable doubt, that a given sample was from [Gary] . . . ."


       But subsection (b)(3) doesn't apply here at all. It applies only to samples "collected
by an employer," and the sample here was taken by Stormont Vail Hospital personnel.
The Board made a legal error by relying on this statute to exclude the lab-test result.


The Administrative Regulation Relied on by the Board to Exclude the Lab Result


       The Board also cited an administrative regulation, K.A.R. 51-3-5a. It's headed
"Procedure for preliminary hearings," the proceedings that take place early in a case to
determine things like whether the employee gets temporary benefits or some specific
medical care. Since the lab evidence was presented at the regular hearing—not a
preliminary one—you'd think that this regulation would be unlikely to apply. But the
Board seized on one sentence in the regulation that can apply in some circumstances
when a final award is made. We've set out K.A.R. 51-3-5a in full below with that
sentence italicized:


               "Procedure for preliminary Hearings. (a) Medical reports or any other records
       or statements shall be considered by the administrative law judge at the preliminary
       hearing. However, the reports shall not be considered as evidence when the
       administrative law judge makes a final award in the case, unless all parties stipulate to
       the reports, records, or statements or unless the report, record, or statement is later
       supported by the testimony of the physician, surgeon, or other person making the report,

                                                    19
       record, or statement. If medical reports are not available or have not been produced
       before the preliminary hearing, either party shall be entitled to an ex parte order for
       production of the reports upon motion to the administrative law judge.
               "(b) If the decision of the administrative law judge is not rendered within five
       days of the hearing, the applicant's attorney shall notify the director, who shall make
       demand upon the administrative law judge for this decision.
               "(c) In no case shall an application for preliminary hearing be entertained by the
       administrative law judge when written notice has not been given to the adverse party
       pursuant to K.S.A. 44-534a." (Emphasis added.)


       With that text before us, let's break down what K.A.R. 51-3-5a does. It's clear that
it is concerned mainly with preliminary hearings, not the later hearing at which evidence
is presented to determine a final award. All three of the subsections relate to preliminary
hearings.


       The first sentence allows "[m]edical reports or any other records or statements" to
be considered at a preliminary hearing. That way, you don't have to bring doctors and
other witnesses to a hearing on preliminary matters. The second sentence then provides
that "the reports" won't be considered on a final award unless the parties stipulate to their
admission or they are "supported by the testimony of the physician, surgeon, or other
person making the report, record, or statement."


       That second sentence tells us that "the reports shall not be considered as evidence"
without testimonial support. But what does that encompass? In the first sentence (and the
third one), there's a reference to "medical reports," so "the reports" certainly include the
medical reports considered at a preliminary hearing. In our case, though, the LabCorp test
results weren't submitted at a preliminary hearing; they were submitted only at the final
hearing.




                                                    20
       There is a bit of ambiguity in the second sentence, though. Although the early
reference to "the reports" seems to refer back to "[m]edical reports" from the first
sentence, later portions of that second sentence refer to "the reports, records, or
statements" being "supported by the testimony of the physician, surgeon, or other person
making the report, record, or statement." So "the reports" may refer to reports, records, or
statements. Even so, the inclusion within a regulation dealing only with preliminary
hearings and the reference in the second sentence to "the reports" still suggest to us that
we're talking only about things that were presented at a preliminary hearing. And the
third sentence again refers to "medical reports," reinforcing the idea that we're talking
about materials related to the employee's medical condition being used at the preliminary
hearing.


       Under this regulation, then, a party can get medical records, reports, or statements
considered at a preliminary hearing without a witness—but what's admitted that way at
the preliminary hearing doesn't come in at the final hearing without a witness. And this
regulation's requirement that a report, record, or statement be "later supported by . . .
testimony" reasonably applies only to documents that were first presented at a
preliminary hearing without the required testimony. That's why the second sentence of
subsection (a) refers to "the reports" after the first sentence talked about allowing medical
reports to be considered at the preliminary hearing. And it's why the second sentence
refers to having the report be "later supported" by testimony—the report would have been
presented "earlier" without it.


       Our understanding is consistent with the statutory provision governing preliminary
hearings, K.S.A. 2017 Supp. 44-534a. It says that the preliminary hearing "shall be
summary in nature" and that the findings made at it "shall not be binding in a full hearing
on the claim, but shall be subject to a full presentation of the facts." K.S.A. 2017 Supp.
44-534a(a)(2).


                                             21
       The Board reads "reports, records, or statements" to apply to virtually anything,
whether a medical record or not—and whether first presented at a preliminary hearing or
not. That takes K.A.R. 51-3-5a far beyond its apparent reach. As we read K.A.R. 51-3-5a,
it relates to medical statements and records that are considered at the preliminary hearing
without a doctor's testimony. Later though, at least in nondeath cases, each side has the
opportunity to have a doctor conduct a medical examination of the employee so that
disability ratings may be obtained. See K.S.A. 2017 Supp. 44-515 and 44-516. Because
of the importance of those examinations and ratings, another statute, K.S.A. 44-519,
provides that "no report of any examination . . . by a health care provider . . . shall be
competent evidence . . . unless supported by the testimony of such health care provider
. . . ." Read in light of K.S.A. 44-519 (requiring a doctor's testimony to support an
examination report) and K.S.A. 2017 Supp. 44-534a (providing that preliminary hearings
be summary in nature), the regulation, K.A.R. 51-3-5a, makes sense. It allows a doctor's
report to be admitted at a preliminary hearing without testimony but warns all parties that
testimony will be needed later. Reading K.A.R. 51-3-5a as the Board does—to apply to
virtually all documents or statements—would eviscerate the general rule that hearsay
evidence is admissible in workers'-compensation hearings.


       We'll conclude our discussion of K.A.R. 51-3-5a with one final point: It must be
read in the context of the overall Workers Compensation Act. Regulations adopted by an
administrative agency don't override statutes adopted by the Legislature. So the
regulations must be consistent with the underlying statutes. Barbury v. Duckwall Alco
Stores, 42 Kan. App. 2d 693, 694, 215 P.3d 643 (2009).


       Under the Act, strict evidentiary rules don't apply and hearsay evidence is
generally admissible. The Board's broad reading of K.A.R. 51-3-5a, even if textually
permissible, would be unlikely when this context is considered. In situations like this
involving federal legislation, the late Justice Antonin Scalia would say that Congress
wouldn't hide an elephant in a mousehole. See Whitman v. American Trucking Assns,

                                              22
Inc., 531 U.S. 457, 468, 121 S. Ct. 903, 149 L. Ed. 2d 1 (2001). A textualist justice who
relied on statutory language, not legislative history, Justice Scalia provided an important
lesson about how statutes are put together: You don't hide a really important provision in
a subsection of an otherwise unimportant part of a set of complicated and interrelated
statutory provisions.


       Under that view—even if K.A.R. 51-3-5a were part of the statute itself—it would
be improbable that the Kansas Legislature would have wanted to make such a major
change to the evidentiary rules in an ancillary provision aimed at governing preliminary
hearings. But this isn't a statute. It's a mere administrative regulation, not something
enacted by the Legislature. The meaning given to it by the Board goes several steps
beyond this regulation's appropriate reach.


       In sum, the statute for preliminary hearings provides that they be summary in
nature; the regulation provides that medical reports, records, and statements may be
admitted at the preliminary hearing without a witness; and both statute and regulation
provide that there be a full presentation at the final hearing on matters that were heard in
summary fashion at the preliminary hearing. Nothing in either the statute or regulation
provides that reports of lab testing—not first presented in a preliminary hearing—are
subject to any special evidentiary rules.


Reviewing the Board's Decision under the General Evidentiary Rules for Workers'-
Compensation Hearings


       Now that we've established that no specific statute or regulation precludes the
admission of the LabCorp test result, we turn to the next part of the abuse-of-discretion
analysis. At this step, we must ask whether the Board abused its discretion when it found
the foundation for admission of the test result to be inadequate. We now look to see
whether any reasonable person could have found this foundation inadequate while

                                              23
considering the appropriate legal standards. And under those standards, hearsay evidence
is generally admissible, though the Board still must look to see whether the test result was
reliable enough for it to consider. Considered under those standards, Labor Max
presented ample evidence supporting the reliability of the test result.


       The evidence about how the urine sample was obtained at Stormont Vail, how the
hospital lab tested it, how the hospital stored the sample, and how the hospital then
transferred the sample to LabCorp would meet evidentiary requirements under the
Kansas Rules of Evidence. The hospital's lab director, Shelley D'Attilio, testified about
each step of the process and the hospital lab's test result based on her review of business
records kept under her supervision. So while she relied on some hearsay evidence—what
was reflected in the hospital's records—there's a hearsay-evidence exception in the
Kansas Rules of Evidence allowing the admission of business records. See K.S.A. 2017
Supp. 60-460(m).


       For the LabCorp part of the process, Labor Max submitted the affidavit of David
St. John, the lab supervisor for the Mississippi testing facility that tested this sample, and
testimony from Dr. Christopher Long, the toxicologist. Had St. John testified to the
things in his affidavit, his testimony would have gone from hearsay status (an out-of-
court statement) to admissible under the Kansas Rules of Evidence. He too explained that
he had carefully reviewed business records kept in the ordinary course of business that
would qualify, had he testified, for admission under K.S.A. 2017 Supp. 60-460(m).


       But the submission of an affidavit from him instead of testimony doesn't
automatically make his hearsay statements inadmissible. In workers'-compensation cases,
"[h]earsay evidence may be admissible unless irrelevant or redundant." K.A.R. 51-3-8(c).
This test result was neither irrelevant nor redundant.




                                              24
       It's significant that St. John works at the federally certified lab of a third party and
has no interest in this case. And when the St. John affidavit and exhibits are combined
with the testimony of Dr. Long, there's more than enough evidence to get the test result
admitted. Dr. Long's academic qualifications haven't been challenged, and he fully
reviewed all the test data from LabCorp. He said that he had determined from the records
that proper chain-of-custody procedures were followed. He said he had "no doubt" that
the test result was accurate.


       The Board complained that no one who touched Gary's sample along the way
testified. But even in court, lab results can be admitted with just the testimony of a
business-records custodian. See, e.g., Shelton v. Consumer Products Safety Comm'n, 277
F.3d 998, 1010 (8th Cir. 2002) (approving the admission of lab test results as business
records); Holbrook v. Precision Helicoptors, Inc., 162 Or. App. 538, 543-44, 986 P.2d
646 (1999) (same). And here the hearsay rule applicable to court proceedings—that
hearsay evidence isn't admitted without an applicable exception, like the business-records
exception—doesn't apply. Instead, hearsay evidence is admitted in workers'-
compensation hearings as long as there are sufficient indicia of reliability. That standard
is met here.


       We've now established that the Board erred when it excluded the LabCorp test
result. With the admission of that test result, the conclusive presumption of impairment
under K.S.A. 2017 Supp. 44-501(b)(1)(C) applies and there's a rebuttable presumption
that this impairment contributed to Gary's death. Given that presumption, Carmen can
recover only if she shows by clear and convincing evidence that the impairment didn't
contribute to the death. See K.S.A. 2017 Supp. 44-501(b)(1)(D). That means that she
must show that it was highly probable that the impairment didn't contribute to Gary's
death. See In re B.D.-Y., 286 Kan. 686, Syl. ¶ 1, 187 P.3d 594 (2008).




                                              25
The Alternative Basis for the Board's Decision


       The Board did conclude, as an alternative basis for its ruling, that Carmen had met
this standard. The Board relied on the testimony of Gary's coworker, Thomas McGraw.
The Board said that McGraw had "observed [Gary] shortly before his accident and he did
not notice [Gary] acting any differently than he normally did."


       But the Board did not discuss Dr. Long's testimony that a layperson generally can't
tell when someone has used marijuana. Dr. Long testified that alcohol impairment acts as
a "depressant that's easy to see," but that "something [like marijuana] that causes
alterations in your sensory input is very hard for a layperson to identify."


       Given the very brief explanation by the Board of this alternative basis for its ruling
and the high standard of proof applicable to it, we are not comfortable evaluating this
alternative basis for the Board's decision without a more complete explanation of why it
found McGraw's testimony to meet the clear-and-convincing evidence test given Dr.
Long's related testimony. When an administrative agency's ruling isn't sufficient to allow
for meaningful judicial review, the appellate court may remand the case to the agency.
Jones v. Kansas State University, 279 Kan. 128, 142, 106 P.3d 10 (2005). We conclude
that the appropriate course here is to remand the case to the Board for further
consideration. See K.S.A. 2017 Supp. 44-556(a); K.S.A. 77-622(b); Casco v. Armour
Swift-Eckrich, 283 Kan. 508, 529, 154 P.3d 494 (2007); Jones, 279 Kan. at 142. On
remand, the Board should fully consider the evidence, including the lab-test result, and is
not bound by its previous ruling.


One Side Point


       Before we conclude our opinion, we want to clear up one area of confusion in the
parties' briefs. We haven't mentioned it until now because it doesn't affect our analysis,

                                             26
but Carmen made one additional argument that—had the factual premise for it been
correct—would have been significant.


       To this point in the opinion, we've simply referred to testing for marijuana
metabolites. But the Kansas statute specifying that a conclusive presumption of
impairment applies if the level of metabolites exceeds 15 nanograms per milliliter lists
one specific marijuana metabolite in a footnote: Delta-9-tetrahydrocannabinol-9-
carboxylic acid. See K.S.A. 2017 Supp. 44-501(b)(1)(C). Under that statute, the GC/MS
test must confirm the presence of that specific metabolite.


       In her appellate brief, Carmen argues that LabCorp didn't test for that specific
metabolite and thus Labor Max failed to prove Gary's presumptive impairment. The final
LabCorp test printout showed the presence of "Carboxy THC" at 189 nanograms per
milliliter. Dr. Long referenced that result as showing 189 nanograms per milliliter of
"THC-COOH." Neither the test printout nor Dr. Long's testimony specifically referenced
delta-9-tetrahydrocannabinol-9-carboxylic acid by that name.


       There's a reason Kansas law required testing for a specific marijuana metabolite:
that's the metabolite that federally certified drug-testing labs are required to test for. And
"THC-COOH" is just a commonly used reference for delta-9-tetrahydrocannabinol-9-
carboxylic acid. See Evans, Drug Testing Law Tech. & Prac. § 4:144 (2018). So
LabCorp, a federally certified lab, tested for the marijuana metabolite specified in the
Kansas statute, and Dr. Long's testimony that the lab reported 189 nanograms per
milliliter of "THC-COOH" confirms that. LabCorp's choice to list the result as "Carboxy
THC" rather than writing out the full scientific name doesn't affect the result here.


       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.


                                              27
                                                   ***


       GREEN, J., dissenting: I respectfully dissent from the majority's decision to reverse
the Board's decision (which held that Gary, through his widow Carmen, is not currently
entitled to benefits under the Act) and to remand the case to the Board for further
proceedings where Carmen must prove that she is entitled to benefits under the Act. I
agree with the majority's holding that the Board misapplied K.S.A. 2017 Supp. 44-
501(b)(3)(E). The Board clearly erred by applying K.S.A. 2017 Supp. 44-501(b)(3)(E) to
exclude the admission of Gary's GC/MS test results since medical staff collected Gary's
urine sample. And although I believe that Labor Max has challenged the Board's
determination that Gary's GC/MS test results were inadmissible under K.S.A. 2017 Supp.
44-501(b)(2), I also agree with the majority's conclusion that K.S.A. 2017 Supp. 44-
501(b)(2) is inapplicable under the facts of this case. Nevertheless, I disagree with the
majority's interpretation and application of K.A.R. 51-3-5a(a).


       Thus, the ultimate question in this appeal is whether the Workers Compensation
Board's (Board) interpretation of K.A.R. 51-3-5a(a) for the admission of Gary's GC/MS
test results was correct. That question is a matter of law.


       The majority's position is drawn primarily, if not exclusively, from K.A.R. 51-3-
5a(a), which states:


               "Medical reports or any other records or statements shall be considered by the
       administrative law judge at the preliminary hearing. However, the reports shall not be
       considered as evidence when the administrative law judge makes a final award in the
       case, unless all parties stipulate to the reports, records, or statements or unless the
       report, record, or statement is later supported by the testimony of the physician, surgeon,
       or other person making the report, record, or statement. If medical reports are not
       available or have not been produced before the preliminary hearing, either party shall be



                                                    28
       entitled to an ex parte order for production of the reports upon motion to the
       administrative law judge." (Emphasis added.)


       K.A.R. 51-3-5a(a) creates a universal negative (E) proposition in the second
sentence of this regulation:


       "However, the reports shall not be considered as evidence when the administrative law
       judge makes a final award in the case, unless all parties stipulate to the reports, records,
       or statements or unless the report, record, or statement is later supported by the testimony
       of the physician, surgeon, or other person making the report, record, or statement."
       (Emphasis added.)


Moreover, the word "any" in the first sentence of K.A.R. 51-3-5a(a) denotes a universal
affirmative proposition: "Medical reports or any other records or statements shall be
considered by the administrative law judge at the preliminary hearing." (Emphasis
added.) Our Supreme Court recently provided the following definitions of the word
"any": "(1) 'one or some indiscriminately of whatever kind'; (2) 'one, some, or all
indiscriminately of whatever quantity'; and (3) 'unmeasured or unlimited in amount,
number, or extent.' The ordinary and plain meaning of the term 'any' thus connotes
something without limits. [Citation omitted.]" State v. Sandoval, 308 Kan. 960, 963-64,
425 P.3d 365 (2018). Thus, under the plain language of K.A.R. 51-3-5a(a), it is readily
apparent that at the preliminary hearing medical reports and all other records and
statements can be considered by the administrative law judge (ALJ).


       Moreover, Gary's written GC/MS test results would be considered a record or
statement or both under K.A.R. 51-3-5a(a). K.S.A. 2017 Supp. 44-534a(a)(1) also states
that "[c]opies of medical reports or other evidence which the party intends to produce as
exhibits supporting the change of benefits shall be included with the application" for a
preliminary hearing. Certainly, Gary's GC/MS test results also would fit within the terms
"other evidence." Thus, because Gary's GC/MS test results lacked the other person's

                                                    29
testimony as required under the second sentence of K.A.R. 51-3-5a(a), Gary's GC/MS
test results could not be considered as evidence when the ALJ made the final award.


       Nevertheless, Labor Max and the majority take a myopic view of K.A.R. 51-3-
5a(a). They say that this regulation relates only to preliminary hearings. Furthermore, the
majority interprets the previously denoted italicized language of K.A.R. 51-3-5a(a) as
follows: If a party admits reports, records, or statements made by a physician, surgeon, or
other person at a preliminary hearing without testimony, then that party must support
those reports, records, or statements made by the physician, surgeon, or other person at
the final award hearing with testimony. On the other hand, if a party does not admit
reports, records, or statements made by a physician, surgeon, or other person at a
preliminary hearing, then that party need not support the reports, records, or statements
with testimony of the authoring physician, surgeon, or other person at the final award
hearing.


       Thus, the majority concludes under the facts of this case: If Labor Max had
admitted Gary's GC/MS test results at the preliminary hearing, then Labor Max would
have needed to present qualified testimony to admit Gary's GC/MS test results at the final
award hearing. Nevertheless, because Labor Max did not admit Gary's GC/MS test
results at the preliminary hearing, Labor Max could admit Gary's GC/MS test results
without complying with K.A.R. 51-3-5a(a)'s rule that absent a stipulation by the parties,
parties must support reports, records, or statements with the testimony of the physician,
surgeon, or other person who made the report, record, or statement at the final award
hearing.


       Implicitly, the majority concedes that Gary's GC/MS test results, which were
documented in a lab report, constitute the type of evidence K.A.R. 51-3-5a(a) considers.
The majority further concedes that the lab report was made by some "other person" as
contemplated by the regulation. But the majority contends that because Labor Max did

                                            30
not admit or present Gary's GC/MS test results at the preliminary hearing, this insulated
Labor Max from the K.A.R. 51-3-5a(a) rule requiring that the admission of medical
reports or any other records or statements be supported by testimony of their author.


       The majority contends that this interpretation is supported by the plain language of
the regulation, as well as K.S.A. 44-519 and K.S.A. 2017 Supp. 44-523(a). The majority
argues that the Board's interpretation of K.A.R. 51-3-5a(a) would "apply to virtually all
documents or statements" and "would eviscerate the general rule that hearsay evidence is
admissible in workers'-compensation hearings." Indeed, the majority suggests that the
Board's interpretation of K.A.R. 51-3-5a(a) would override the workers compensation
statutes adopted by the Legislature.


       Although K.A.R. 51-3-5a(a) is entitled "Procedure of preliminary hearings" and
K.A.R. 51-3-5a contains rules about preliminary hearings, K.A.R. 51-3-5a(a)'s plain
language also contains a rule on what evidence is admissible at a final award hearing. I
begin my analysis by turning to the rules on regulatory and statutory construction.


       "The interpretation of a regulation promulgated by statute is treated the same as
the interpretation of a statute." Bates v. Kansas Dept. of Corrections, 31 Kan. App. 2d
513, 515, 67 P.3d 168 (2003). "The most fundamental rule of statutory construction is
that the intent of the legislature governs if that intent can be ascertained." Bergstrom v.
Spears Manufacturing Co., 289 Kan. 605, 607, 214 P.3d 676 (2009). When a statute is
plain and unambiguous, this court presumes that the Legislature "expressed its intent
through the language of the statutory scheme." 289 Kan. at 607. Under such
circumstances, this "court must give effect to the legislative intention as expressed in the
statutory language." 289 Kan. at 607. Moreover, our Supreme Court has emphasized the
following:




                                             31
       "[T]his court must give effect to its express language rather than determine what the law
       should or should not be. The court will not speculate on legislative intent and will not
       read the statute to add something not readily found in it. If the statutory language is clear,
       no need exists to resort to statutory construction. [Citation omitted.]" 289 Kan. at 607-08


       In workers compensation cases, this has led to multiple cases where our Supreme
Court has reversed long-applied workers compensation policy because that policy was
not supported in written law. See, e.g., Bergstrom, 289 Kan. at 609-10 (disapproving of
Foulk v. Colonial Terrace, 20 Kan. App. 2d 277, 284, 887 P.2d 140 [1994], because the
Foulk court read language into K.S.A. 44-510e[a] that required injured workers to make a
good-faith effort to seek employment); and Casco v. Armour Swift-Eckrich, 283 Kan.
508, Syl. ¶ 8, 525, 154 P.3d 494 (2007) (disapproving of Honn v. Elliott, 132 Kan. 454,
295 P. 719 [1931], because the Honn court read language into then-current K.S.A. 44-
510c[a][2] and K.S.A. 44-510d about the loss of two body parts creating a permanent
total disability).


       Here, Labor Max and the majority have ignored the plain language of K.A.R. 51-
3-5a(a) in reaching their conclusion. The second sentence of K.A.R. 51-3-5a(a) reads:


       "However, the reports shall not be considered as evidence when the administrative law
       judge makes a final award in the case, unless all parties stipulate to the reports, records,
       or statements or unless the report, record, or statement is later supported by the testimony
       of the physician, surgeon, or other person making the report, record, or statement."
       (Emphasis added.)


       To limit a "report, record or statement" to only the "report, record or statement"
admitted or presented at the preliminary hearing, as argued by Labor Max and the
majority, would require K.A.R. 51-3-5a(a) to be rewritten to validate their position.
Indeed, the second sentence of K.A.R. 51-3-5a(a) does not limit a "report, record, or
statement" to only the "report, record, or statement" admitted or presented at the

                                                    32
preliminary hearing. If this were the intent of the Director of Workers Compensation
(director), the director could have easily included the following language in the second
sentence of K.A.R. 51-3-5a(a): "any 'report, record, or statement' includes only a 'report,
record, or statement' admitted or presented at the preliminary hearing." Nevertheless,
the director never included such language in K.A.R. 51-3-5a(a).


       Moreover, the second sentence of K.A.R. 51-3-5a(a) contains two conditional
clauses that begin with the conditional term unless. These unless clauses contain present
tense verbs "stipulate" and "is," respectively. The verb used in the independent clause of
this sentence is shall. As a result, the second sentence of K.A.R. 51-3-5a(a) is a predictive
conditional sentence used to predict the future of express future possibilities. There is
nothing in the provision of K.A.R. 51-3-5a(a) that would limit its future requirements to
only preliminary hearing matters.


       Turning again to the majority's argument, I note that the majority's deductive
reasoning is as follows:


            Major premise: "Nothing in either the statute or regulation provides that
               reports of lab testing—not first presented in a preliminary hearing—are
               subject to any special evidentiary rules." Slip op. at 23.
            Minor premise: Gary's GC/MS lab test results were not first presented in a
               preliminary hearing.
            Conclusion: Therefore, Gary's GC/MS lab test results are not "subject to
               any special evidentiary rules."


The soundness of this syllogistic argument rests on the correctness of its premises. I do
not accept the majority's major premise that "[n]othing in either the statute or regulation
provides that reports of lab testing—not first presented in a preliminary hearing—are
subject to any special evidentiary rules."
                                             33
       Additionally, this categorical syllogism is invalid because no conclusion follows
when both premises contain an exclusion. It is called the fallacy of the exclusive
premises. Finally, the difficulty I have with the majority's syllogism is the majority's
conclusion that Gary's GC/MS lab test results are not "subject to any special evidentiary
rules." The majority's conclusion is a subtlety not warranted by the law.


       First, the Legislature provided the Director of Workers Compensation with the
power to "adopt and promulgate such rules and regulations as the director deems
necessary" to administer and to enforce the Act. K.S.A. 44-573. K.A.R. 51-3-5a(a) is one
such regulation.


       Second, K.A.R. 51-3-5a(a) is a regulation that concerns both the evidence an ALJ
may consider at the preliminary hearing stage and the evidence an ALJ may consider
when making the final award. The rule concerning what evidence the ALJ can consider
when making the final award is related to K.S.A. 44-519. Indeed, K.S.A. 44-519 creates a
universal negative (E) proposition similar to the second sentence in K.A.R. 51-3-5a(a).
K.S.A. 44-519(a) states:


       "[N]o report of any examination of any employee by a health care provider, as provided
       for in the workers compensation act and no certificate issued or given by the health care
       provider making such examination, shall be competent evidence in any proceeding for
       the determining or collection of compensation unless supported by the testimony of such
       health care provider, if this testimony is admissible . . . ." (Emphasis added.)


       Thus, for example, where the employee's examination report lacks the health care
provider's testimony, the employee's examination report will not be considered as
competent evidence.




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       It is plainly clear that the Legislature enacted K.S.A. 44-519 to protect the rights
of parties against a wholesale admission of medical reports of healthcare providers into a
record without a proper foundation being laid to insure the integrity and reliability of the
medical records except in a preliminary hearing context under K.S.A. 2017 Supp. 44-
534a and K.A.R. 51-3-5a(a).


       Third, on the other hand, K.A.R. 51-3-5a(a) covers the admissibility of evidence
made under a set of circumstances that is not covered under K.S.A. 44-519. This includes
"other records or statements" made by some "other person." Like K.S.A. 44-519, K.A.R.
51-3-5a(a) insures that a proper foundation must be laid before evidence or reports are
admitted into the record. Similar to the protection offered to parties under K.S.A. 44-519,
the rights of parties against whom the evidence or reports are sought to be used are
protected by the provision of K.A.R. 51-3-5a(a), which states:


       "[T]he reports shall not be considered as evidence when the administrative law judge
       makes a final award in the case, unless all parties stipulate to the reports, records, or
       statements or unless the report, record, or statement is later supported by the testimony of
       the physician, surgeon, or other person making the report, record, or statement."


       But the majority emphasizes that to be valid, administrative regulations must not
override statutes adopted by the Legislature. Nonetheless, K.A.R. 51-3-5a(a) does not
conflict with K.S.A. 44-519 or exceed the authority conferred by K.S.A. 44-573 under
which the director enacted K.A.R. 51-3-5a(a). Moreover, not only does K.A.R. 51-3-
5a(a) not conflict with the provisions under K.S.A. 44-519, it also preserves and
promotes the comprehensive purpose of K.S.A. 44-519. Thus, K.A.R. 51-3-5a(a) actually
effectuates the purpose of K.S.A. 44-519. Moreover, my research has revealed no case or
example in which it says a regulation that is broader than a related statute is automatically
invalid because the regulation extended beyond the statutory provisions of the related
statute.


                                                     35
       I further believe our Supreme Court's decision in Roberts v. J.C. Penney Co., 263
Kan. 270, 281, 949 P.2d 613 (1997), supports the conclusion that the Board did not apply
K.A.R. 51-3-5a(a) in an overly broad manner. Regarding the connection between K.S.A.
44-519 and K.A.R. 51-3-5a(a), the Roberts court explained:


               "It is clear that in K.A.R. 51-3-5a, the administrative regulation relating to
       preliminary hearings, . . . a special rule has been fashioned to allow medical reports or
       records to be considered by the ALJ at the preliminary hearing. The specific requirement
       and literal application of K.S.A. 44-519, however, is preserved in the regulation . . . .
       Rather than rendering [K.S.A. 44-519] without practical effect, [K.A.R. 51-3-5a(a)]
       clearly upholds the requirement that 44-519 must be followed as written." (Emphasis
       added.) 263 Kan. at 281.


       What our Supreme Court did not say was that K.A.R. 51-3-5a(a) is identical to
K.S.A. 44-519. Nor did our Supreme Court say that K.A.R. 51-3-5a(a) was a regulation
that pertained only to preliminary hearings. To the contrary, our Supreme Court noted
that K.A.R. 51-3-5a(a) was a regulation "relating to preliminary hearings" that preserved
and upheld the requirement of K.S.A. 44-519.


       Turning to the Board's decision, I note that the Board ruled that Gary's GC/MS test
results were inadmissible because Labor Max had failed to comply with the plain
language of K.A.R. 51-3-5a(a). The Board's ruling was based on a conditional syllogism.
To illustrate, the Board stated the following in its order: "Without the [GC/MS] drug
screen test results, there is no conclusive presumption that claimant was impaired at the
time of his accident. Nor was there sufficient evidence outside of the excluded [GC/MS]
drug screen test results to prove that claimant was impaired at the time of his accident."
The thrust of the Board's ruling is the following:




                                                    36
           Major implicit premise: If the respondent failed to lay a proper foundation
                for the admission of the GC/MS test results, then there is no conclusive
                presumption that Gary was impaired when the accident occurred.
           Minor implicit premise: Labor Max failed to lay a proper foundation for
                admission of the GC/MS test results.
           Conclusion: Therefore, there is no conclusive presumption that Gary was
                impaired when the accident occurred.



       I believe that the Board correctly ruled that Gary's GC/MS test results were
inadmissible under K.A.R. 51-3-5a(a) because the "LabCorp litigation package [fell]
under the category of 'any other records or statements.'" Under the plain language of
K.A.R. 51-3-5a(a), Gary's GC/MS test results constitute other records or statements. And,
they were created by some person other than a physician or surgeon. Indeed, respondent
presented no testimony of the technician responsible for performing the GC/MS test on
Gary's urine.


       As a result, the proof offered as to the accuracy of the GC/MS test results was
inadequate. Again, no witnesses were called by respondent to testify as to the procedures
used in testing Gary's urine sample for marijuana. Thus, the Board complied with the
plain language of K.A.R. 51-3-5a(a) when it ruled that Gary's GC/MS test results were
inadmissible under this regulation.


       Last, I note that the majority's analysis is inconsistent with workers compensation
procedures. In many cases, the evidentiary deadline falls after the preliminary hearing.
And regardless of when the preliminary hearing falls in conjunction with the parties'
terminal dates, under the majority's interpretation, any party could withhold admitting or
presenting reports, records, or statements at the preliminary hearing in order to admit
those reports, records, or statements without the testimony of the other person who made

                                              37
the reports, records, or statements at the final award hearing. The majority stresses that
the Board's interpretation of K.A.R. 51-3-5a(a) would upheave workers compensation
proceedings as we know them. The majority maintains that this regulation "would
eviscerate the general rule that hearsay evidence is admissible in workers-compensation
hearings." Slip op. at 22.


         Nevertheless, in addition to being unsupported by the plain language of K.A.R.
51-3-5a(a), I fear that the majority's interpretation and application of K.A.R. 51-3-5a(a)
would result in workers compensation cases being decided on untested and untrustworthy
reports, records, and statements. In short, I recognize that employees and employers have
an interest in the proper integrity of the workers compensation program. Moreover, I also
recognize that employees and employers have a vital interest in predictable procedures.
In recognition of this balance, I conclude that if the majority's holding were adopted in
this case, it would create an unpredictable handling of lab test results or any other records
or statements, with the exception of medical reports (which are covered under K.S.A. 44-
519), not admitted or presented for consideration by the ALJ at the preliminary hearing
stage.


         For these reasons, I would affirm the Board's decision finding that Gary was
entitled to benefits under the Act.




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