| FINAL AWARD ALLOWING COMPENSATION (Modifying Award and Decision of Administrative Law Judge) |
| Employee: | Robert Casey, deceased |
| Claimant: | Dolores Murphy, surviving spouse |
| Employer: | E.J. Cody Company, Inc. |
| Insurer: | Accident Fund National Insurance Company |
| This workers’ compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 287.480 RSMo. We have reviewed the evidence, read the parties’ briefs, heard the parties’ arguments, and considered the whole record. Pursuant to § 286.090 RSMo, we modify the award and decision of the administrative law judge. We adopt the findings, conclusions, decision, and award of the administrative law judge to the extent that they are not inconsistent with the findings, conclusions, decision, and modifications set forth below. |
| Preliminaries |
| The parties asked the administrative law judge to determine the following issues: (1) whether there was an occupational disease; (2) notice; (3) whether the condition arose out of and in the course and scope of employment; (4) medical causation; (5) compensation rate; (6) employee’s entitlement to benefits pursuant to § 287.200.4 RSMo1 with claimants stipulating that they are not seeking any other weekly benefits to which they may have been entitled under the statutes in effect prior to the enactment of that section; (7) whether § 287.200.4 can be retroactively applied; and (8) whether the insurer is liable to provide coverage for claimed benefits under § 287.200.4. In addition, both employer and insurer raised arguments that application of § 287.200.4 in this matter would be unconstitutional.2 Finally, both employer and insurer objected to employee’s oral motion, at the hearing before the administrative law judge, to substitute the deceased employee’s surviving spouse as the claimant in this matter. The administrative law judge rendered the following determinations: (1) employee was last exposed to the relevant hazard while working for employer; (2) claimant is entitled to the new mesothelioma benefit found in § 287.200.4(3) RSMo; (3) employer was not prejudiced owing to any failure on the part of employee or claimant to provide statutory notice of employee’s injury or death; (4) employee’s mesothelioma and resulting death fall directly within the scope of insurer’s coverage for employer, which it provided as a result of Missouri’s 2014 amendments; (5) there is no retroactive effect in applying the |
| 1 All references in this decision to §§ 287.200.4 and 287.020.11 RSMo are to the legislative amendments, effective January 1, 2014, pertaining to occupational diseases due to toxic exposure. 2 Administrative agencies such as the Division of Workers’ Compensation and this Commission are not invested with authority to resolve any constitutional challenges raised in the proceedings before them. See Tadrus v. Missouri Bd. of Pharmacy, 849 S.W.2d 222, 225 (Mo. App. 1993). For this reason, we will decline to address same, other than to note that such issues/arguments are preserved for appeal. |
Improve: Robert Casey, deceased
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provisions of § 287.200.4 to employer or insurer in this case, because the statute fixes liability as of the date that mesothelioma is diagnosed; (6) insurer's policy provides coverage for the award in this case, because the insurance policy included a specific endorsement unambiguously promising to cover employer's risks pursuant to the new mesothelioma benefits created by § 287.200.4; and (7) the Division of Workers' Compensation (Division) is without jurisdiction to determine the constitutional arguments from employer and insurer.
Insurer filed a timely application for review with the Commission alleging the administrative law judge erred: (1) in using the date of diagnosis rather than the date of alleged toxic exposure to determine the date of injury; (2) in calculating the amount of the award using an incorrect weekly compensation rate; (3) in granting employee's motion to substitute parties, because it was not timely; (4) in finding insurer liable for damages, because Missouri case law requires that the insurer on the last date of exposure is liable for coverage for injury due to occupational disease; (5) in finding insurer liable for damages, because the policy issued by insurer limits coverage for injury due to toxic exposure to instances where the date of last toxic exposure occurs within the policy period; and (6) in awarding benefits for mesothelioma due to toxic exposure under § 287.200.4, because the last alleged toxic exposure occurred in 1990, prior to the effective date of the amendment, and to retroactively apply § 287.200.4 would violate the Missouri and United States constitutional prohibitions against ex post facto laws.
Employer also filed a timely application for review with the Commission alleging the administrative law judge erred: (1) in rejecting the testimony from employer's president; (2) in giving too much credence to the testimony from employee; (3) in concluding that the findings and opinions of claimant's medical expert satisfied claimant's burden of proof; and (4) in awarding benefits totaling $547,621.44, because the administrative law judge used an incorrect weekly rate of compensation. In addition, employer indicated that it wished to preserve for appeal its constitutional arguments, while agreeing that the administrative law judge lacked authority to consider them.
For the reasons stated below, we modify the award of the administrative law judge referable to the issue of the rate of compensation. In all other respects, we affirm the award of the administrative law judge, and adopt his decision to the extent not inconsistent with the supplemental findings, discussion, and analysis provided herein.
Discussion
Occupational disease arising out of and in the course of the employment
The parties asked the administrative law judge to determine several issues pertaining to causation of the claimed occupational disease injury, which the administrative law judge recited as follows: "occupational disease," "whether the condition arose out of and in the course and scope of employment," and "medical causation." Transcript, page 3. The administrative law judge ultimately determined that employee suffered a compensable occupational disease due to toxic exposure, based on a finding that employee was last exposed to the relevant hazard while working for employer; however, he did not specifically address the statutory criteria for proving an occupational disease pursuant to § 287.067 RSMo. After careful consideration, we agree that employee's mesothelioma constitutes a compensable injury. We provide the following supplemental analysis to
Address the applicable statutory requirements for proving a compensable occupational disease.
Effective January 1, 2014, the legislature created a new class of workers' compensation injuries under Chapter 287, designated and defined under § 287.020.11 RSMo as "occupational diseases due to toxic exposure." The legislature included mesothelioma, the claimed injury herein, among the list of designated occupational diseases due to toxic exposure. The legislature did not create any new rules or tests pertaining to proof of causation for such injuries; we will presume, then, that the legislature intended that the existing standards of causation for occupational disease injuries would apply to this new class of toxic exposure injuries.
The record reflects (and we so find) that employee did not experience any significant effects referable to the claimed injury until October 26, 2014, when he first suffered a severe and uncontrollable coughing spell, prompting his hospitalization and a subsequent diagnosis of mesothelioma. ${ }^{3}$ Accordingly, the relevant Missouri case law instructs that October 26, 2014, is the appropriate "date of disability" or "date of injury" for purposes of determining which version of Chapter 287 applies. See Wickam v. Treasurer of the State, 499 S.W.3d 751, 756 (Mo. App. 2016); Tillman v. Cam's Trucking, Inc., 20 S.W.3d 579, 585-86 (Mo. App. 2000). The version of § 287.067 RSMo in effect as of October 26, 2014, provides, in relevant part, as follows:
- In this chapter the term "occupational disease" is hereby defined to mean, unless a different meaning is clearly indicated by the context, an identifiable disease arising with or without human fault out of and in the course of the employment. Ordinary diseases of life to which the general public is exposed outside of the employment shall not be compensable, except where the diseases follow as an incident of an occupational disease as defined in this section. The disease need not to have been foreseen or expected but after its contraction it must appear to have had its origin in a risk connected with the employment and to have flowed from that source as a rational consequence.
- An injury or death by occupational disease is compensable only if the occupational exposure was the prevailing factor in causing both the resulting medical condition and disability. The "prevailing factor" is defined to be the primary factor, in relation to any other factor, causing both the resulting medical condition and disability. Ordinary, gradual deterioration or progressive degeneration of the body caused by aging or by the normal activities of day-to-day living shall not be compensable.
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[^0]: ${ }^{3}$ The administrative law judge found that employee was diagnosed with mesothelioma on October 14, 2014. We acknowledge that employee's daughter, Dinah Mitchell, so testified, in response to a leading question by counsel advancing this date. See Transcript, page 18. However, employee's own deposition testimony and the medical records support a finding, instead, that employee's uncontrollable coughing spell occurred on October 26, 2014, and that the diagnosis of mesothelioma was first rendered by the treating physician Dr. Joseph Stilwill on November 5, 2014, after the appropriate pathological and diagnostic studies were performed. See Transcript, pages 82, 351, 363, and 391.
At the outset, we can easily determine that mesothelioma is an identifiable disease, and that it is not an ordinary disease of life to which the general public is exposed outside of employment, as our legislature has specifically identified and defined mesothelioma to be an "occupational disease due to toxic exposure." With regard to the other requirements set forth above, claimant presents the expert medical opinion of Dr. Thomas Beller, a pulmonary specialist, who believes that employee's occupational exposure to asbestos was the prevailing cause of his mesothelioma. Employer and insurer did not present any contrary expert medical opinion evidence.
Instead, employer asks us to credit portions of the testimony from its president, Robert Cody, suggesting employee's work for employer did not require him to install vinyl asbestos tile, or otherwise expose him to the risk of encountering friable asbestos. In his award, the administrative law judge provided a thorough discussion of the testimony from Mr. Cody, and identified the specific reasons he found such to be lacking persuasive force. We are mindful that the administrative law judge was able to observe Mr. Cody as he testified, whereas we have only the written transcript of Mr. Cody's testimony for purposes of our own review. We acknowledge employer's arguments, but ultimately do not discern a compelling basis to second-guess the administrative law judge's express credibility determinations in this regard; accordingly, we adopt them as our own. We find that Mr. Cody did not persuasively rebut the evidence that employee's work for employer involved duties that posed a risk of exposure to friable asbestos.
Employer alternatively argues that Dr. Beller's opini