Reasonable Assurance Chain Of Custody Required To Admit Drug Test In Workers Compensation Hearing And Appeal To The Commission Requires Opportunity To Be Heard At A Meaningful Time and In A Meaningful Manner
01/07/08
Injured employee tested positive for use of methamphetamine and marijuana both at hospital and via sample mailed to an out of state laboratory. Award was reduced 15% under RSMO 287.120.6(1). However, Administrative Law Judge awarded employee attorneys’ fees as costs pursuant to RSMO 287.560 on the basis that employer’s defense and denial of benefits were unreasonable in part. On appeal to the Labor and Industrial Relations Commission, the Commission reversed the award of attorneys’ fees even though employer had not specifically appealed the award of attorneys’ fees. Employee appealed claiming 1) 15% reduction improper because no “forensic legal chain of custody [as] evidentiary precondition to” the admission of drug test results, 2) 15% reduction illegal as against public policy as it “will have a chilling effect on medical care and treatment of worker compensation patients,” and 3) employer waived right to appeal award of attorneys’ fees when it failed to specifically include the award in its appeal to the Commission. Court of Appeals ruled 1) only reasonable assurance of chain of custody was required to admit drug test results, 2) 15% reduction is a public policy decision for the state legislature, and 3) issue as to whether Commission’s “plenary” or “de novo” review is limited to issues raised by the parties under 8 CSR 20-3.030(A) is not ripe as the record is insufficient to determine if the Commission reversed the costs award without adequate notice and an opportunity to be heard in a meaningful time and in a meaningful manner. Nolan v. Degussa Admixtures, Inc., Docket No. 28647 (Mo.App.S.D. 1/07/08).
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