The administrative law judge found that employee is permanently and totally disabled. The administrative law judge concluded that Enyard v. Consolidated Underwriters, 390 S.W.2d 417 (Mo. App. 1965), stands for the proposition that for the purpose of determining the compensation rate in occupational disease cases, the "date of injury" is the date of employee's last injurious exposure. The administrative law judge then concluded the $\ 95 weekly benefit cap that appears in the 1977 statute applies to this case. The administrative law judge's reliance on the holding in Enyard is misplaced.
First, the Enyard decision was based upon a faulty reading of Renfro v. Pittsburgh Plate Glass Co., 130
S.W.2d 165, 171 (Mo. App. 1939). The Enyard court distinguished Renfro on the ground that,"[i]n that case we were dealing primarily with the question of when the statute of limitations began to run." In fact, a primary issue in Renfro was whether employee's average annual wage should be computed based upon the wages in the year next preceding Mr. Renfro's last exposure to the hazard of silicosis or upon the wages in the year next preceding his disability. The Renfro court concluded the latter wages are to be used reasoning that "the purpose of a Workman's Compensation Act is not indemnity for any physical ailment, but for loss of earning power, disability to work. Id., at 71. "We are unable to perceive how it can logically or justly be held that there is a compensable injury in an occupational disease case until there is disability on the part of the employee which affects his earning power." Id., at 170.
Further, the main premise of the Enyard holding - that "the last injurious exposure marks the time of injury in an occupational disease case" - was recently explicitly rejected in Copeland v. Associated Wholesale Grocers, 207 S.W.3d 189 (Mo. App. 2006). Mr. Copeland developed carpal tunnel syndrome while working for Associated Wholesale Grocers (AWG). Mr. Copeland was treated for the condition and medically released before beginning work for Elite Logistics (Elite). Employee's work for Elite also exposed him to the hazards of developing carpal tunnel syndrome. A year later, Mr. Copeland filed a claim for compensation. The Commission concluded that liability was fixed with AWG because AWG was the last employer to injuriously expose Mr. Copeland to the hazard of carpal tunnel syndrome. The Copeland court reversed concluding the Commission erred in reading the word "injurious" into the statute. Even though it was undisputed that employment with Elite did not expose Mr. Copeland to the activities that actually caused Mr. Copeland's occupational disease (the injurious exposure), the Court found Elite liable for compensation.
Finally, the administrative law judge's ruling applies two versions of the Workers' Compensation Law to one claim. Employee's claim arose in April 2001. The 2000 version of the Workers' Compensation Law governs the determination of employer's liability for the claim. Even if the administrative law judge was correct that the "date of injury" for purposes of determining the permanent total disability rate was in 1977 - and she is not - that conclusion alone would not justify pulling out the 1977 Workers' Compensation Law to determine the permanent total disability rate. We would still look to the 2000 law to determine the rate. The administrative law judge condones the application of the 2000 Law for purposes of considering statute of limitations issues and the 1977 law for determining disability rates. It is error to do so.
The simple truth is this: Employee did not sustain injury to his body in 1977. Employee was exposed to a substance that had the potential to cause injury to him. Unfortunately for employee, the potential for injury was realized.
The majority rule regarding the proper benefit level - and the rule that should be applied under the Missouri statutes - is described below:
The question of which benefit level applies is encountered in its most acute form in long-latency occupational disease cases. If a worker's last injurious exposure was in 1965 and his disability appeared in 1995, the choice between date of exposure and date of disability might well mean the difference between $\ 50 and $\ 350 a week.
The majority rule, as a result of either judicial decision or statutory provision, is that the level at the time of exposure does not control; rather, the time of disability, knowledge, or manifestation is decisive.
Arthur L. Larson \& Lex Larson, Larson's Workers' Compensation Law, § 53.05 (2009).
The majority rule is consistent with the legal principles enunciated in Renfro and Copeland. I would rule that the date of injury for purposes of determining employee's permanent total disability rate was in April 2001.
Employer argues that if we were to award compensation under the rates in effect in 2001, it would seem an "unfair and unjust result." What of it? Employee contracted a serious illness because of his service to employer. That probably seems unfair to employee. It probably also seems unjust to the employee that the administrative law judge determined $\ 95 per week is what Missouri law provides for his loss of earning capacity in 2001. It must have seemed awfully unfair and unjust to Elite Logistics when it learned it was liable for a disability that was diagnosed and treated before Mr. Copeland worked for Elite. See discussion of Copeland, supra. It is the insidious nature of occupational diseases that gives rise to any perceived or real inequities. It is the job of the legislature to address the inequities if it sees fit.