1026648. GERALD E. HICKS.
Case Date | July 13, 2006 |
Court | Kansas |
Kansas Workers Compensation
2006.
1026648.
GERALD E. HICKS
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Table of
ContentsKeyword ListingJuly 13, 2006DOCKET NO. 1,026,648BEFORE THE APPEALS BOARD FOR THE KANSAS DIVISION OF WORKERS
COMPENSATION GERALD E. HICKS
Claimant VS. BUTLER TRANSPORT, INC.
Respondent)
Docket No. 1,026,648 AND KANSAS TRUCKERS RISK
MGMT GROUP
Insurance Carrier
ORDER
Respondent and its insurance carrier (respondent) requested
review of the April 14, 2006 preliminary hearing Order entered by
Administrative Law Judge Nelsonna Potts Barnes. Issues The sole issue to be determined in this appeal is whether certain
drug testing results are admissible under K.S.A. 44-501(d)(2) thus negating
respondent's liability for what is otherwise apparently considered a
compensable injury.
The Administrative Law Judge (ALJ) concluded that the Federal
Drug Testing Custody and Control form offered by respondent and intended to
establish that claimant was impaired was not admissible as evidence because
respondent did not establish chain of custody beyond a reasonable doubt as
required by the statute. The ALJ also concluded that respondent had failed to
meet its burden of proving that claimant was impaired, or that impairment from
drugs contributed to his injury. Accordingly, the ALJ went on to find that the
claimant had established that it is more probably true than not true that he
suffered an accidental injury arising out of and in the course of his
employment with respondent and was therefore entitled to the benefits he
sought.
Respondent contends that the ALJ erred in denying the
admissibility of its proffered evidence supporting its "impairment defense"
pursuant to K.S.A. 2005 Supp. K.S.A. 44-501(d)(2). Respondent argues that the
ALJ held the lab and Dr. Tim Ryan to a higher standard than Federal regulations
and Kansas criminal law require, and that there is no statutory requirement
that the lab's tracking procedures be introduced into evidence to establish an
unbroken chain of custody. Respondent therefore, requests that this case be
remanded to the ALJ with directions to admit the Federal Drug Testing Custody
and Control form (Respondent's Exhibit 2) and the affidavit of Dr. Tim Ryan
(Respondent's Exhibit 3) for consideration as evidence.
Claimant asserts that the ALJ's Order is well reasoned and should
be affirmed...
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