Robert Casey v. E.J. Cody Company, Inc.

Improve: Robert Casey, deceased

- 2 -

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:

1. 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.
2. 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 opinion is insufficient to meet claimant's burden of proof, because he did not identify or quantify any specific injurious exposure to friable asbestos that occurred during employee's work for employer. We have carefully reviewed the relevant case law, namely Vickers v. Mo. Dep't of Pub. Safety, 283 S.W.3d 287, 295 (Mo. App. 2009) and Smith v. Capital Region Med. Ctr., 412 S.W.3d 252 (Mo. App. 2013). As these cases make abundantly clear, identification of a specific injurious exposure is not required in occupational disease claims, as our task is not to identify, to a medical certainty, the actual cause of employee's mesothelioma:

Chapter 287 does not require a claimant to establish, by a medical certainty, that his or her injury was caused by an occupational disease in order to be eligible for compensation. ... Indeed, a single medical expert's opinion may be competent and substantial evidence in support of an award of benefits, even where the causes of the occupational disease are indeterminate.

Smith v. Capital Region Med. Ctr., 412 S.W.3d 252, 261 (Mo. App. 2013)(citations omitted).

In the Smith case, the Commission concluded a phlebotomist's fatal hepatitis C was not a compensable injury by occupational disease on the basis there was no evidence that anyone with hepatitis C was ever present in the workplace, or provided a blood sample handled by the employee. The court reversed, holding that evidence of a specific type and/or magnitude of exposure is not necessary in occupational disease cases; instead, employee's expert needed only establish there was a probability that working conditions caused the disease. Id. at 261. In a subsequent appeal in the same case, the court made clear that our focus must be on whether the evidence persuasively establishes a

Irisk of sustaining the claimed injury in the employment at issue, as opposed to a conclusive identification of the particular causative source(s) for the claimed injury. Smith v. Capital Region Med. Ctr., 458 S.W.3d 406, 416 (Mo. App. 2014). Based on these decisions, which appear to be squarely on point, we find employer's argument unavailing.

Instead, we find the wholly unrebutted expert medical opinion from Dr. Beller to be persuasive. We conclude, in light of this persuasive evidence, that employee's mesothelioma had its origin in a risk connected to his employment, and flowed from that source as a rational consequence. We conclude that employee's occupational exposure was the prevailing factor causing him to suffer the resulting medical condition of mesothelioma, disability referable thereto, and resultant death. For this reason, we conclude the claim is compensable. ${ }^{4}$

The named insurer in this matter, Accident Fund National Insurance Company, argues the administrative law judge erred in finding that its policy of insurance covers employer's liability in this matter for the enhanced benefit under § 287.200.4 RSMo. Insurer advances the so-called Rule of Last Exposure under § 287.063.2 RSMo as standing for the proposition that the insurer who covered employer's risk at the time of employee's last exposure to the risk of injury should, instead, be liable. In other words, insurer argues that employer's insurer as of 1990, when employee retired from his employment with employer, should be deemed liable for the new, enhanced mesothelioma benefit that the legislature established as of January 1, 2014.

We are not persuaded, for the following reasons. Section 287.063.2 RSMo provides as follows:

The employer liable for the compensation in this section provided shall be the employer in whose employment the employee was last exposed to the hazard of the occupational disease prior to evidence of disability, regardless of the length of time of such last exposure, subject to the notice provision of section 287.420 .

Insurer correctly notes that pursuant to $\S 287.030 .2$ RSMo, "[a]ny reference to the employer shall also include his or her insurer or group self-insurer[,]"and asks us to substitute "insurer" for "employer" wherever it appears within the foregoing language. Insurer argues that this will work the effect that employer's 1990 insurer (or perhaps some earlier insurer) is liable for the enhanced mesothelioma benefit sought by claimant. Insurer identifies a line of Missouri case law wherein the courts did rely upon § 287.063.2 to shift liability to a successive, or "last" insurer. See Oberg v. American Recreational Prods., 916 S.W.2d 304 (Mo. App. 1995); Lococo v. Hornberger Elec., 914 S.W.2d 67 (Mo. App. 1996); and Feltrop v. Eskens Drywall \& Insulation, 957 S.W.2d 408 (Mo. App. 1997).

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[^0]: ${ }^{4} In 2005, our legislature removed from \S 287.067$ a prior reference to the various requirements for accidental injuries set forth under $\S \S 287.020 .2$ and 287.020 .3 RSMo. The obvious import of this amendment was to remove from our analysis the requirements set forth under those sub-sections, including the much-discussed "unequal exposure" test, see Johme v. St. John's Mercy Healthcare, 366 S.W.3d 504 (Mo. 2012). For this reason, we have not applied the unequal exposure test to this claim.

On the other hand, our research does not reveal any case applying § 287.063.2 to shift liability from the insurer whose policy was in effect at the time the workers' disability first arose (and employer's liability thereby accrued) back to a prior insurer. To the contrary, in rejecting a similar argument from an insurer advancing $\S 287.063 .2$ as a basis for shifting liability to a prior insurer, the court in Bollmann v. Certain-Teed Products Corp., 651 S.W.2d 613 (Mo. App. 1983), provided the following, instructive comments:

The insurance carrier does not have a contractual relationship with the employee. It does not employ and it does not expose the employee to the hazard giving rise to the claim. It contracts with the employer to insure against the risks of the employer for which the employer becomes liable during the term of the contract of insurance. ... The purpose of the statute under discussion is to determine who among multiple employers is liable for an occupational disease. It does not change the date upon which the condition becomes compensable; it has no reference to insurance carrier status.

Id. at 615-16.

Perhaps the 70-year-plus history of Missouri case law in this area is best summarized by the words of the court in the case of Enyard v. Consolidated Underwriters, 390 S.W.2d 417, 427 (Mo. App. 1965): "what was said in [prior] cases and in the holdings that followed must be viewed and construed in the light of the facts and issues before the court in the respective cases." At risk of belaboring the obvious, we must recognize that none of the reported decisions are, strictly speaking, applicable to any discussion of successive insurer liability in the specific context of the enhanced mesothelioma benefit under § 287.200.4(3), because this legislation simply did not exist when those decisions were rendered.

It is fortunate then, that the words of the statute at issue provide an answer. By their express terms, the liability-shifting provisions of $\S 287.063 .2$ apply to the "compensation in this section provided" (emphasis added). By virtue of the mandate under § 287.800.1 RSMo, we must strictly construe this language. As we have noted, claimant stipulated at the outset of the hearing before the administrative law judge that she is only seeking an award of the enhanced mesothelioma benefit under § 287.200.4(3). In effect, she has waived any claim for the additional compensation to which she may have otherwise been entitled, including that to which $\S 287.063 .2 refers. We must conclude, therefore, that the liability-shifting provisions of \S 287.063 .2$ are not relevant to any discussion of insurer's liability for the compensation provided under § 287.200.4(3).

Turning to that section, we note that although § 287.200.4(3) does not provide specific guidance for resolving the issue of successive insurer liability presently before us, this section does speak, in unambiguous terms, about the obligation of employers to either accept or reject the protections of workers' compensation exclusivity with regard to mesothelioma liability. See § 287.200.4(3)(a). Acceptance of those protections is specifically tied to employer's action of purchasing a policy of insurance to cover their liability for the new, enhanced mesothelioma benefit. For obvious reasons, employer

could not have accomplished this action in 1990; nor could employer's insurer in 1990 have offered a policy covering employer's liability under § 287.200.4(3).

By the same token, employer's insurer in 1990 could not have calculated a premium that would take into account the legislature's creation of the enhanced mesothelioma benefit for claims filed after January 1, 2014. On the other hand, it would appear that Accident Fund National Insurance Company did just that, charging premiums for a policy that specifically assured employer that "[s]ection 287.200.4, subdivision (3), of the Missouri Revised Statutes provides additional benefits in the case of occupational diseases due to toxic exposure that are diagnosed to be mesothelioma and result in permanent total disability or death. Your policy provides insurance for these additional benefits." Transcript, pages 701, 952. Having collected the benefit of employer's premiums, the calculation of which presumably took into account the risk that employer would face enhanced liability for mesothelioma claims filed after January 1, 2014, insurer should not be permitted to avoid its obligation to cover employer for those very same risks, under any reading of $\S 287.063 .2$ or prior case law.

Finally, we will briefly address insurer's alternative argument that its policy language should permit it to escape liability in this case. Insurer relies upon Part One of its policy, which provides, in paragraph A(2): "The employee's last day of last exposure to the conditions causing or aggravating such bodily injury by disease must occur during the policy period." Transcript, page 962. We are not persuaded that this provision permits insurer to avoid liability, for the following reasons. Section 287.280.1 RSMo provides, in relevant part, as follows:

Every employer subject to the provisions of this chapter shall, on either an individual or group basis, insure their entire liability under the workers' compensation law ... with some insurance carrier authorized to insure such liability in this state[.]

(emphasis added).

As we have noted, employer was presented with an option, under § 287.200.4(3)(a) RSMo, to either "accept" or "reject" liability for mesothelioma claims, with acceptance tied to employer's act of insuring their liability under that subsection. Employer did accept liability for mesothelioma claims by purchasing a policy of insurance. As a result, employer was not permitted to insure only some portion of its liability, but was required by the express language of $\S 287.280 .1$ to insure its "entire liability."

Section 287.310.1 RSMo additionally provides, in relevant part, as follows:

Every policy of insurance against liability under this chapter shall be in accordance with the provisions of this chapter ...

(emphasis added).

The Missouri courts have consistently applied $\S \S 287.280 .1$ and 287.310 .1 to prevent insurers from limiting, via the terms of an insurance policy, the scope of coverage for a work injury otherwise falling under Chapter 287:

It was the wise legislative purpose, in the enactment of the compensation law, to see to it that employees subject to the act should be at all times protected in their right to compensation; and to this end there was included the provision that "every employer electing to accept the provisions of this chapter, shall insure his entire liability thereunder ... with some insurance carrier authorized to insure such liability in this state, except that an employer may himself carry the whole or any part of such liability without insurance upon satisfying the commission of his ability so to do." Following this is the further pertinent provision that every policy of insurance against liability under the act shall be in accordance with the provisions of the act, and shall contain an agreement that the insurer accepts all of the provisions of the act, and that the policy may be enforced by any person entitled to any rights under the act as well as by the employer. ...

The result is, therefore, that when an insurer undertakes to insure the liability of a particular employer under the act, such insurer must not only agree to accept "all" of the provisions of the act, but must be held to insure the employer's "entire liability thereunder," save in so far as the employer may have received authority from the commission to carry any part of his liability without insurance. This for the reason that the act becomes a part of any insurance policy which is written, and itself determines the scope of the insurer's undertaking in any matter involving the claim of an injured employee, whose right to compensation arises under the act, and not under the policy, which, so far as its construction is concerned, is to be given the declared statutory meaning, even though, as between the insurer and the employer, something different may have been actually intended. As our act is written, an injured employee's rights may not be cut down by any pretended limitation of coverage unless there has been due observance of the requirement relating to self-insurance; and if any question arises over a policy which, on its face, is valid and in force, the matter is not one for the commission to determine, but is to be adjusted between the insurer and the employer in a proceeding adopted to that purpose.

Allen v. Raftery, 237 Mo. App. 542, 551 (Mo. App. 1943)(citations omitted).

For all of the foregoing reasons, we affirm the award of the administrative law judge with respect to this issue. We conclude Accident Fund National Insurance Company is liable to cover employer's liability in this matter pursuant to $\S 287.200 .4$, because insurer covered employer's risk as of the date that employer became liable.

On appeal, insurer argues the administrative law judge erred in granting claimant's oral motion, on the date of hearing, to substitute herself as the claimant in this matter owing to employee's death on October 11, 2015. Insurer cites § 287.580 RSMo, which provides, in relevant part, as follows:

If any party shall die pending any proceedings under this chapter, the same shall not abate, but on notice to the parties may be revived and proceed in favor of the successor to the rights or against the personal representative of the party liable, in like manner as in civil actions.

Insurer correctly notes that the foregoing statute makes reference to the procedures applicable in civil actions whenever a party dies while proceedings are pending, and points out that claimant did not file or serve upon the parties a formal suggestion of death or motion for substitution of parties as contemplated under Rule 52.13 of the Missouri Rules of Civil Procedure.

Insurer ignores, however, that claimant did file with the Division an amended Claim for Compensation on October 28, 2015, which served to provide timely, written notice to the parties of employee's death on October 11, 2015, and of claimant's identification of herself as employee's surviving "dependent" and claimant herein. This amended claim was, in our view, a suggestion of death and motion for substitution of parties in everything but name, and insurer has failed to provide us with any authority for reading the language of $\S 287.580$ as requiring strict adherence to the Missouri Rules of Civil Procedure in the circumstances before us, or that claimant's failure to adhere to such procedures should be deemed fatal to her claim. ${ }^{5}$

In any event, we must apply § 287.200.4(5) RSMo, which states, in relevant part, as follows:

Notwithstanding any other provision of this chapter to the contrary, should the employee die before the additional benefits provided for in subdivision (2) and paragraph (a) of subdivision (3) of this subsection are paid, the additional benefits are payable to the employee's spouse or children[.]

(emphasis added).

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[^0]: ${ }^{5}$ On the other hand, the Missouri courts have consistently instructed us that "[u]nder the Workers' Compensation Act, substantial rights are to be enforced at the sacrifice of procedural rights." Hale v. Treasurer of Mo., 164 S.W.3d 184 (Mo. App. 2005). See also Parsons v. Steelman Transp., Inc., 335 S.W.3d 6, 18 (Mo. App. 2011); Clark v. FAG Bearings Corp., 134 S.W.3d 730, 736 (Mo. App. 2004); Seeley v. Anchor Fence Co., 96 S.W.3d 809, 816 (Mo. App. 2002); Crowell v. Hawkins, 68 S.W.3d 432, 441 (Mo. App. 2001); Lorenz v. Sweetheart Cup Co., 60 S.W.3d 677, 683 (Mo. App. 2001); Elking v. Deaconess Hosp., 996 S.W.2d 718 (Mo. App. 1999); Wiele v. National Super Mkts., 948 S.W.2d 142, 146 (Mo. App. 1997); and Vogt v. Ford Motor Co., 138 S.W.2d 684, 686 (Mo. App. 1940).

The foregoing provides that whenever an employee dies before receiving payment of the enhanced benefits for occupational disease due to toxic exposure, the benefits are payable to the surviving spouse, notwithstanding any provision of Chapter 287 to the contrary. In other words, even if we were persuaded to read $\S 287.580$ as requiring us to vindicate procedural rights at the expense of substantial ones, the express language of $\S 287.200 .4(5)$ prohibits us from doing so. We conclude that because employee died on October 11, 2015, before the enhanced benefits under $\S 287.200 .4$ were paid, the enhanced benefits are payable to employee's surviving spouse, Dolores Murphy, and she therefore may proceed as the claimant and party in interest in this claim. ${ }^{6}$

The parties, in their briefs, have agreed that there was an error in the administrative law judge's calculation of the award in the amount of $\ 547,621.44. Specifically, the parties have agreed that the appropriate weekly rate of compensation should have been $\ 820.04, which was the state average weekly wage when employee's disability first manifested on October 26, 2014, rather than the weekly rate used by the administrative law judge of $\ 861.04, which was the maximum rate for total disability and death benefits as of that date. ${ }^{7}$ Given the parties' agreement that the award was incorrectly calculated, we hereby modify the award of the administrative law judge with respect to the rate of compensation.

We conclude that the appropriate rate of compensation for purposes of $\S 287.200 .4 RSMo is \ 820.04. Applying this rate to the calculation set forth under $\S 287.200 .4(3) (a), we conclude claimant is entitled to a total award of \ 521,545.44.

We modify the award of the administrative law judge as to the issue of the rate of compensation.

At the appropriate weekly rate of compensation of $\ 820.04, claimant is awarded, and employer/insurer are hereby ordered to pay, a total amount of of $\ 521,545.44.

The award and decision of Administrative Law Judge Mark S. Siedlik, issued April 4, 2016, is attached and incorporated herein to the extent not inconsistent with this decision and award.

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[^0]: ${ }^{6}$ We note that the administrative law judge's award includes a listing of employee's children as additional "dependents" in this matter. Award, page 1. However, the amended claim for compensation, filed October 28, 2015, did not identify employee's children as dependents or claimants, nor is there any motion on the record before us to include these individuals as parties to any award in this matter. For this reason, we have identified Dolores Murphy as the sole claimant herein. Of course, it would appear that should Ms. Murphy predecease her children, the enhanced benefit would be payable to them as a matter of law, pursuant to the above-cited language of $\S 287.200 .4(5).

{ }^{7}$ While agreeing that the appropriate weekly rate of compensation should have been $\ 820.04, claimant asserts, in her brief, that the parties stipulated that if all issues were resolved in her favor, the total amount of the award would be $\ 547,621.44. However, no such stipulation appears on the record before us. Instead, claimant's attorney merely stipulated that claimant was not seeking any amount in excess of the (incorrectly calculated) amount of $\ 547,621.44. Transcript, page 8.

We approve and affirm the administrative law judge's allowance of attorney's fee herein as being fair and reasonable.

Any past due compensation shall bear interest as provided by law.

Given at Jefferson City, State of Missouri, this $\qquad 31^{\text {st }}$ day of January 2017.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

Employee: Robert Casey (deceased)

Injury No: 14-102671

Dependents: Dolores Murphy, Rena Blocher, Tom Casey, Steve Casey, Catherine Mannell, Patricia Bradford, Dinah Lambert-Mitchell, Angela Sedano, and Mike Casey.

Employer: E.J. Cody Company, Inc.

Additional Party: N/A

Insurer: Accident Fund National Insurance Company

Hearing Date: January 7, 2016

Checked by: MSS/pd

1. Are any benefits awarded herein? Yes
2. Was the injury or occupational disease compensable under Chapter 287? Yes
3. Was there an accident or incident of occupational disease under the Law? Yes
4. Date of accident or onset of occupational disease: October 14, 2014
5. State location where accident occurred or occupational disease was contracted: Kansas City, Jackson County, Missouri
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes, at the time of last exposure, not at time diagnosis.
7. Did employer receive proper notice? Yes
8. Did accident or occupational disease arise out of and in the course of the employment? Yes
9. Was claim for compensation filed within time required by Law? Yes
10. Was employer insured by above insurer? Yes, as to Accident Fund National Insurance Company.
11. Describe work employee was doing and how accident occurred or occupational disease contracted: Employee developed mesothelioma due to asbestos exposure in the course and scope of employment. Employee did flooring work where he was last exposed to the hazard of asbestos while in the employ of E.J. Cody, Inc. The asbestos employee was exposed to was the prevailing cause of his mesothelioma, which resulted in his death.
12. Did accident or occupational disease cause death? Yes

Date of death? October 11, 2015

1. Part(s) of body injured by accident or occupational disease: Lungs, respiratory system, and body as a whole, causing death.
2. Nature and extent of any permanent disability: Death

1. Compensation paid to-date for temporary disability: None
2. Value necessary medical aid paid to date by employer/insurer? None
3. Value necessary medical aid not furnished by employer/insurer? None
4. Employee's average weekly wages: $\ 861.04 per week, (Section 287.200.4(2) provides that the wage rate to be used in a mesothelioma toxic exposure case is the State's average weekly wage as of the date of diagnosis.)
5. Weekly compensation rate: $\ 861.04
6. Method wages computation: By Statute per Section 287.200.4
7. Amount of compensation payable:

Mesothelioma Benefit as per $\S 287.200 .4(3) (a) \ 547,621.44

Total Award: $\ 547,621.44

1. Second Injury Fund liability: N/A
2. Future requirements awarded: None

Said payments to begin as of date of this award and to be payable and be subject to modification and review as provided by law.

The compensation awarded to the claimant shall be subject to a twenty-five percent (25\%) lien totaling in favor of Scott W. Mach and R. Carl Mueller, Jr., Attorneys, for reasonable and necessary attorney's fees pursuant to Mo.Rev.Stat. §287.260.1.

Employee: Robert Casey

Injury No: 14-102671

Dependents: Dolores Murphy, Rena Blocher, Tom Casey, Steve Casey, Catherine Mannell, Patricia Bradford, Dinah Lambert-Mitchell, Angela Sedano, and Mike Casey.

Employer: E.J. Cody Company, Inc.

Additional Party: N/A

Insurer: Accident Fund National Insurance Company

Hearing Date: January 7, 2016

Checked by: MSS/pd

On January 7, 2016, the employee, employer, and Accident Fund National Insurance Company appeared for final hearing. The Division had jurisdiction to hear this case pursuant to $\S 287.110$. The employee, Mr. Robert Casey, was deceased and appeared through counsel, Scott W. Mach, R. Carl Mueller, Jr. and Cooper Mach. The case was tried on the amended claim of Robert Casey brought by his widow Delores Murphy, file stamped October 28, 2015. Employer E.J. Cody Company, Inc. appeared through its president, Robert Cody, and its counsel James Kennedy. Accident Fund National Insurance Company appeared through its counsel, John Fox and Dan Luebbering. The primary issues the parties requested the Division to determine were whether Claimant Robert Casey suffered an occupational disease arising out of and in the course of his employment with E.J. Cody which ultimately resulted in his death. The parties also requested the Division to determine whether Accident Fund Insurance Company had coverage for Mr. Casey's death under the Missouri Workers Compensation Law, and to determine if the new mesothelioma sections of 287.200 .4 and its monetary awards provided therein applied to Mr. Casey's case. Finally, whether the mesothelioma statute, Section 287.200.4 is constitutional. For the reasons noted below, I find that Mr. Casey is entitled to benefits provided for under Section 287.200.4 which provides mesothelioma benefits to his surviving spouse and children, and I find that Employer and Accident Fund National Insurance Company is responsible to pay those enhanced mesothelioma benefits.

The parties stipulated that:

1. From March 16, 2014, through March 16, 2016, Accident Fund National Insurance Company provided worker's compensation insurance with a mesothelioma endorsement, insuring E.J. Cody Company, Inc.;
2. This case would be tried with claimant seeking only the $\ 547,621.44 in mesothelioma benefits found in Section 287.200.4(3) and will not seek "old law" mesothelioma benefits;

1. Employer, E.J. Cody Company, Inc. purchased a mesothelioma endorsement, therefore accepting mesothelioma liability pursuant to Section 287.200.4(3);
2. Employer, E.J. Cody Company, Inc. did not provide any medical care for Robert Casey;
3. Employer, E.J. Cody Company, Inc. did not provide any temporary benefits for Robert Casey; and,
4. Employer, E.J. Cody Company, Inc. did not provide any death benefits for Robert Casey, his widow, or children.

The parties requested the Division to determine:

1. If Robert Casey sustained an occupational disease which caused his death, did it arise out of and in the course of his employment;
2. Whether the mesothelioma benefits under Section 287.200.4 applied to Robert Casey, his death, and his beneficiaries;
3. Whether Accident Fund National Insurance Company's mesothelioma endorsement covered Robert Casey's death claim against E.J. Cody, Inc., therefore providing the enhanced mesothelioma benefit found in Section 287.200.4(3);
4. Whether Section 287.200.4 providing mesothelioma benefits as of January 1, 2014, is constitutional pursuant to the answers of employer, E.J. Cody Company, Inc. and insurer, claiming that the 2014 amendments would violate Amendment XIV, Section 1 of the U.S. Constitution which guarantees due process of law and equal protection under the law, and whether the application of the 2014 amendments would violate Article1, Section 10 of the Missouri Constitution which guarantees due process and equal protection under the law; and,
5. Whether the Employer/Insurer received proper notice of the occupational disease under the law.

Claimant Robert Casey testified via videotaped deposition which was recorded prior to his death, his daughter Dinah Mitchell testified, as did Robert Cody. Claimant Robert Casey also offered the following Exhibits:

Exhibit A - Deposition of Robert Casey

Exhibit B - Dr. Thomas Beller Report and CV

Exhibit C - Dr. Joseph Stilwell/Midwest Cancer Care Physicians Records

Exhibit D - M.D. Anderson Cancer Center Records

Exhibit E - Menorah Medical Center Pathology Records

Exhibit F - Menorah Medical Center Radiology Records

Exhibit G - Menorah Medical Center Records

Exhibit H - Dr. Jonathan Jacobs/Kansas City Internal Medicine Records

Exhibit I - Death Certificate

Exhibit J - OSHA Part No 1926-1101

Exhibit K - OSHA Part No 1910-1001

Exhibit L - Accident Fund's MO Notification of Mesothelioma Benefits Endorsement

Exhibit M - Accident Fund Insurance Policy (03/16/14-03/16/15)

Exhibit N - Deposition of Robert Cody

Exhibit O - Letter to Kennedy-Fox dated October 12, 2015

Exhibits A through I, and L through O were admitted without objection. Both Employer and Insurer objected to Exhibits J and K on the basis of lack of foundation. I overrule their objections and admit Exhibits J and K into evidence.

Employer offered testimony through the cross-examination of its president, Robert Cody, and also offered the following exhibits into evidence:

Exhibit 1 - Withdrawn as duplication of Exhibit M

Exhibit 2 - Accident Fund policy for 03/16/15-03/16/16

Exhibit 3 - Division of Workers Compensation records for E.J. Cody's insurance in 1990

Exhibit 4 - E.J. Cody correspondence with the Missouri Property Casualty Insurance Guarantee Association

Exhibit 5 - E.J. Cody's Answer to Amended Claim

Exhibit 6 - Notice of Hearing

The Accident Fund Insurance Company did not offer any witnesses or place any exhibits into evidence.

Based on the above exhibits and the testimony received at Hearing, I make the following findings of fact and rulings of law:

Robert Casey's videotaped deposition testimony, taken June 19, 2015, was played at Hearing in its entirety. Robert Casey's testimony, on both direct and cross examination, was clear, thoughtful and consistent, and I find him to be a credible witness. Robert Casey had a long career as a flooring installer, applying among other products, a great deal of vinyl asbestos tile or VAT. He was also repeatedly exposed to asbestos from cutback adhesive from floors he was preparing for new floor coverings.

Robert Casey was born on December 20, 1927. He graduated from De La Salle High School, in Kansas City. His final employment was with E.J. Cody Company, Inc., where he started working part-time in 1984. He began fulltime employment with E.J. Cody on January 1, 1987, and retired in April 1990. Robert Casey was diagnosed with mesothelioma, an asbestosrelated disease, on October 14, 2014. He died from mesothelioma on October 11, 2015. When he passed away, Robert Casey was survived by his second wife, Delores Murphy, (his first wife died in 1997). He was also survived by his eight children: Rena Blocher, Tom Casey, Steve Casey, Catherine Mannell, Patricia Bradford, Dinah Lambert-Mitchell, Angela Sedano, and Mike Casey. Under Section 287.200.4(5) where the employee dies, children of the deceased employee may take under this section of the law, and therefore, the eight children of Robert Casey are allowed to take under this Section.

The employer in this case, E.J. Cody Company, Inc., has been located at 814 West $17^{\text {th }}$ Street, Kansas City, Missouri, for the past 45 years. E.J. Cody Company, Inc. is a construction contractor with an emphasis in acoustical ceilings and tile flooring.

E.J. Cody Company, Inc. had approximately 14 employees in the 1980s, and Robert Casey began working for E.J. Cody on a case-by-case basis in 1984. He continued with E.J. Cody in 1985 and 1986, and in the beginning of 1987 he became a fulltime employee, until his retirement in March or April of 1990. Robert Casey's job for E.J. Cody was always installing or repairing flooring, primarily tile flooring.

Accident Fund Insurance Company was the worker's compensation insurance carrier for E.J. Cody from March 16, 2014, through March 16, 2016, which encompassed the dates that Robert Casey was first diagnosed with mesothelioma, October 14, 2014, and his death on October 11, 2015.

As of January 1, 2014, major amendments to the Missouri Workers Compensation Law were put into effect. The amendments provided for a special "toxic exposure" occupational disease section with an even more specific "mesothelioma" provision. This law will be discussed at greater length below.

As part of its insurance policy with E.J. Cody, Accident Fund provided an endorsement entitled, "Missouri Notification of Additional Mesothelioma Benefits Endorsement." See Exhibit L. Because of its importance to the findings in this case, I will set out the endorsement at length:

"This endorsement applies only to insurance provided by the policy because Missouri is shown in Item 3.A. of the Information Page.

Section 287.200.4, subdivision (3), of the Missouri Revised Statutes provides additional benefits in the case of occupational diseases due to toxic exposure that are diagnosed to be mesothelioma and result in

permanent total disability or death. Your policy provides insurance for these additional benefits.

If you reject liability for mesothelioma additional benefits provided under Section 287.200.4, subdivision (3), of the Missouri Revised Statutes, you must notify us of this election. Once you notify us, we will endorse this policy to exclude insurance for these additional benefits. If you reject liability for mesothelioma additional benefits, the exclusive remedy provisions under Missouri Revised Statutes Section 287.120 shall not apply to your liability for mesothelioma additional benefits."

It should be noted that this is a standard insurance endorsement form copyrighted by the National Council on Compensation Insurance, and that I have underlined language in the endorsement for emphasis.

Important changes were made to Missouri's Workers Compensation Law by the Legislature with the passage of Senate Bill No. 1, which added a new class of occupational diseases titled, "Occupational Diseases Due to Toxic Exposure." Among these occupational diseases due to toxic exposure is mesothelioma, which is a cancer of the lining of the lungs caused by the inhalation of asbestos fibers. It is undisputed that Robert Casey died from this very unique occupational disease.

Robert Casey was first diagnosed with mesothelioma at Menorah Medical Center on October 14, 2014. (Exhibits C and G) He was then seen at M.D. Anderson Cancer Center in Houston, Texas, where the diagnosis was confirmed (Exhibit D). The only independent medical examination was performed by Thomas Beller of the Kansas City Pulmonary Clinic (Exhibit B). Dr. Beller's report confirms that Robert Casey's occupational exposure to asbestos was the "prevailing cause" of his mesothelioma. The only listed cause of death on the Death Certificate (Exhibit I) is "mesothelioma." Neither the employer nor insurer put on any medical evidence to dispute this diagnosis.

Continuing through the new statute, we must remember that the workers' compensation law provides for a "strict construction" of its language provided in the 2005 amendments.

Although the workers compensation law still has a general definition of occupational disease, the new law as of January 1, 2014, makes specific reference for the first time to the "occupational diseases due to toxic exposure." See Section 287.020.11 RSMo. Referring specifically to "mesothelioma" under the "occupational diseases due to toxic exposure," the new law's exclusive remedy provision can be waived by not accepting specifically this new mesothelioma liability. See Section 287.200.4(b). The Accident Fund endorsement addresses the waiver of the exclusive remedy in the final paragraph of its endorsement. (See above.)

There is also a new provision unique to toxic exposure cases which prohibits subrogation. This waiver of subrogation only applies to toxic exposure cases. It does not apply to ordinary occupational diseases but only for the new toxic exposure occupational diseases.

There are ten toxic exposure occupational diseases listed in the new statute, and there are even more specific requirements for mesothelioma than for any of the other nine toxic exposure cases. Specifically, the only toxic exposure occupational disease which mentions specific insurance coverage is the mesothelioma section. Likewise, this mesothelioma insurance section is the only insurance section of the new law the legislature chose to trigger liability with the "diagnosis" of the disease. For the purpose of clarity, I will set out Section 287.200.4(3) at length:

"(3) In cases where occupational diseases due to toxic exposure are diagnosed to be mesothelioma:

(a) For employers that have elected to accept mesothelioma liability [which employer, E.J. Cody, Inc., specifically did with its insurer, Accident Fund, by insuring their liability per this statute] under this subsection, an additional amount of three hundred percent of the state's average weekly wage for two hundred twelve weeks shall be paid by the employer or group of employers such employer is a member of. Employers that elect to accept mesothelioma liability under this subsection may do so by either insuring their liability, by qualifying as a self-insurer, or by becoming a member of a group insurance pool."

Section 287.200.4(5) is also applicable in this case. It states:

"Notwithstanding any other provision of this chapter to the contrary, should the employee die before the additional benefits provided for in subdivision (2) and paragraph (a) of subdivision (3) of this subsection are paid, the additional benefits are payable to the employee's spouse or children, natural or adopted, legitimate or illegitimate, in addition to benefits provided under section 287.240 ."

There is no issue that Robert Casey died from mesothelioma in this case. The death certificate states that the only cause of death was mesothelioma, Dr. Thomas Beller, in Exhibit B, states:

"Mr. Casey has respiratory symptoms associated with a pleural mesothelioma, which is a malignant neoplasm involving the pleura or lining around the lung. His pulmonary function studies show combined obstructive and restrictive ventilatory defects as well as abnormal gas transfer; all of which are consistent with this diagnosis. His chest x -

rays also demonstrate a moderate pleural effusion and pleural reaction consistent with the diagnosis of mesothelioma. He has a left-sided PleurX ${ }^{\circledR}$ catheter which is helping with drainage from persistent malignant effusion. Mr. Casey has a long history of working as a floor layer. He has been exposed to asbestos tiles through this work. His job involved working with all types of floor covering including those containing asbestos in the tile or adhesive. He was usually covered with dust and frequently worked in a dusty environment where asbestos fibers were present. He did not wear respiratory protection or a facemask as part of his employment. The prevailing cause of Mr. Casey's mesothelioma is his work-related asbestos exposure. Each one of his asbestos exposures contributed to the development of his mesothelioma. He is fully disabled at this time and the prognosis is guarded. He is not a candidate for surgery and both radiation and chemotherapy offer little benefit with this malignant tumor."

Besides proof that asbestos was the prevailing cause of his mesothelioma resulting in Robert Casey's death, he must also offer proof that he was "last exposed to the hazard" while working for E.J. Cody.

The Missouri Legislature, in looking at occupational diseases, put in a presumption of exposure for the last employer, making the last employer liable under the Statute, again to be strictly construed.

The applicable statute states:

"287.063.1. An employee shall be conclusively deemed to have been exposed to the hazards of an occupational disease when for any length of time, however short, he is employed in an occupation or process in which the hazard of the disease exists. . .

1. The employer liable for the compensation in this section provided shall be the employer in whose employment the employee was last exposed to the hazard of the occupational disease prior to evidence of disability, regardless of the length of time of such last exposure, subject to the notice provision of section 287.420 ."

The courts have routinely held that this last exposure rule does not require causation. Pierce v BSC, Inc., 207 S.W.3d 619 (2006) Supreme Court of Missouri, en banc. (December 5, 2006). Therefore, employer E.J. Cody is liable for the mesothelioma benefits provided in Section 287.200.4(3) if there was any proof that Robert Casey was, for no matter how short of time, "last exposed to the hazard" of asbestos while he worked at E.J. Cody between 1984 and March 1990.

Dr. Beller's report indicates that each one of his asbestos exposures contributed to the development of his mesothelioma. Therefore, even without Dr. Beller's statement that each exposure is causative, any exposure to the hazard of asbestos during his employment with E.J. Cody would make E.J. Cody liable.

It should be noted that Dr. Beller's curriculum vitae and his bibliography found in Exhibit B, pages 10-13, show that he is eminently qualified to speak to this issue. See Exhibit B.

I find that there was abundant evidence that Robert Casey was "last exposed to the hazard" of asbestos while working for E.J. Cody.

Robert Casey began working for E.J. Cody in 1984, and there was no evidence in the record that he was ever exposed to asbestos in any other job after that date. He began working full time for E.J. Cody on January 1, 1987, and his job was always that of being a floor tile installer. Robert Casey testified that he breathed dust with asbestos while working for E.J. Cody.

Robert Casey testified that throughout his working career, including at E.J. Cody, he installed vinyl asbestos tile. He also testified at length about how he would need to scrape up asbestos cutback on remodel jobs when the floor tile had been taken up, and that there would be pieces of vinyl asbestos tile and cutback that he would have to dry scrape to make the floor smooth, and then he would sweep with a brush. He would breathe the asbestos fibers whenever he would do this type of work for E.J. Cody.

Mr. Cody agreed with safety warnings found in "Recommended Work Practices for Removal of Resilient Floor Coverings," put into effect after Robert Casey retired. The warnings state:

"Do not sand, dry sweep, dry scrape, drill, saw, beadblast or mechanically chip or pulverize existing resilient flooring, backing, lining felt, asphaltic "cutback" adhesive, or other adhesive.

These products may contain asbestos fibers/and or crystalline silica.

Avoid creating dust. Inhalation of such dust is a cancer and respiratory tract hazard."

See Exhibit N, page 161.

Robert Cody's testimony was apparently offered in an attempt to show that Robert Casey was not exposed to the hazard while working for his company. The testimony that Robert Cody gave was not persuasive on the issue at all. His final opinion in his testimony at hearing was that Robert Casey was not exposed to asbestos tiles while working for E.J. Cody, because all of the asbestos had been taken out of the new tile that was laid by the time Robert Casey came to work for E.J. Cody. This fails to account for the asbestos cutback exposure from the removing old floor tile. Robert Cody's testimony was not persuasive on this issue, but even if his testimony were believed, it still would not absolve his company from being the place where Robert Casey was "last exposed to the hazard" of asbestos.

Robert Cody's testimony at hearing was also at odds with his deposition testimony under oath. In his deposition under oath, he admitted that Robert Casey worked for E.J. Cody from 1984 to 1990. See Exhibit N, page 25. At hearing, Robert Cody first asserted that Robert Casey did not come to work for E.J. Cody until 1987. When confronted with Robert Casey's social

security earnings records showing that E.J. Cody paid Robert Casey in 1984, 1985 and 1986, he changed his testimony. At hearing Robert Cody testified that he began to be aware of asbestos dangers in 1981 or so, because he got a letter from Armstrong stating that it had taken asbestos out of its commercial floor tiles as of June 1981. (Because that document, Robert Cody deposition, Exhibit 11, also contained information indicating that asbestos was taken out of other Armstrong tiles in 1985, he could not have received the letter until 1985 or later.) Robert Cody finally had to admit that he would not have received that document until at least 1985, after Robert Casey began at least part-time employment with E.J. Cody.

Also in Robert Cody's deposition at page 26, he admitted that he began getting information about asbestos and the dangers of asbestos in vinyl asbestos tile in the mid-1980s. In the 1984-1985 time frame, he became much more aware of the hazards. He also testified at page 26-27 of his deposition that he knows that asbestos is a danger to public health, and is hazardous and dangerous no matter what level of exposure. At page 27, he testified that he became more knowledgeable about the dangers of asbestos in 1985, when his brother came back from the Navy at which time his brother was telling him of the concerns of asbestos. At that point, Robert Cody also admitted, "I know also that the fibers stay in the air and they don't fall to the ground. That's what I know." See Exhibit N, page 27. Robert Casey was being exposed to asbestos while working for E.J. Cody at that time in 1985, and regularly throughout his employment with E.J. Cody.

At hearing, Robert Cody denied any knowledge of the safety practice of wet scraping any dry asbestos containing cutback which is required today. In his deposition, he testified to the contrary. At page 33 of his deposition, Exhibit N, it states:

"Q. Okay. Are you aware today that there are rules you have to abide by?

A. Yes.

Q. Things like wet scraping of any cutback, that type of thing? Is that a yes?

A. Yes.

Q. And back in the '80s you did not do wet -- or your employees didn't do wet scraping of cutback, did they?

A. No.

Q. Mr. Casey described going in and working on putting in new tiles and how you'd have to scrape the old cutback off to make sure the floor was smooth. Said even if there was a pebble under new tile it would show if you didn't have that floor completely clean. Do you -- do you -- would you agree with that?

A. I would agree with that."

Exhibit N, lines 7-24.

Robert Cody further testified in his deposition that sometime in the mid-1980s, he realized that asbestos could be a danger in vinyl asbestos tile, and that certain manufacturers were beginning to take it out of their tile products. However, before that time, most or all vinyl tile contained asbestos. Vinyl asbestos tile was very popular and used almost exclusively in commercial flooring in the 1960s, 1970s, and 1980s. Exhibit N, page 42. He admitted that Kentile, the vinyl asbestos tile used in schools, was manufactured with asbestos through 1986. Exhibit N, page 59.

Robert Cody also admitted that Robert Casey did a lot of work at the Shawnee Mission Medical Center remodel. Robert Casey testified about scraping asbestos cutback on that project and breathing asbestos dust and getting the dust all over him. Cody could not rebut that because he was seldom at jobsites.

Finally, Robert Cody's deposition, page 66, line 15 states:

"Q. Do you think in the six years that Mr. Casey worked for you he ever had to scrape up cutback adhesive with asbestos in it?

A. May have."

Robert Cody also testified that he would not quarrel with Robert Casey's testimony that he would remove old cutback, then brush the floor clean. Exhibit N, page 82.

At page 85 of his deposition, Robert Cody admitted that Robert Casey used asbestos cutback while working for E.J. Cody at the Shawnee Mission Medical Center. At page 99-100 of his deposition, Robert Cody explains that his business no longer cleans up the cutback to make the floor smooth prior to laying new tile when there is old cutback on the floor, because of the danger of asbestos exposure. He leaves all of that up to the general contractor who hires an abatement contractor to do that work. Robert Cody admits at page 100-101 that Robert Casey did the same type of work that abatement contractors now do while he worked for E.J. Cody as part of his job between 1984-1990. E.J. Cody no longer does that work because of the "asbestos exposure." Robert Casey never wore a dust mask, let alone a full white suit and respirator that an abatement contractor would now use. Because of the numerous discrepancies between his deposition testimony and his testimony at hearing, I find that Robert Cody is not a credible witness.

Therefore, there is convincing evidence indicating that Robert Casey was "last exposed to the hazard" while working in his last employment with E.J. Cody. Both Robert Casey and his daughter Dinah Mitchell testified that Mr. Casey did not have any other employment at all following his retirement from E.J. Cody. Robert Casey indicated that it would have violated his pension to work in the flooring business after retirement, and he certainly would not have done it. There is absolutely no evidence in the record that Robert Casey worked anywhere else after his retirement from E.J. Cody; therefore, he was last exposed to the hazard while working for E.J. Cody.

Because he was last exposed to the hazard while working for E.J. Cody, Robert Casey is entitled to the new mesothelioma benefit found in Section 287.200.4(3) which provides the

formula for the award. Robert Casey is entitled to 300 percent of the state's average weekly wage for 212 weeks, and the statute indicates that it shall be paid by the employer, with the state's average weekly wage to be calculated as of the date of the diagnosis. The calculation for Robert Casey would be 300 percent of the state's average weekly wage at the time of his diagnosis of $\ 861.04 times 300 percent or $\ 2,583.12 times 212 weeks for a total of $\ 547,621.44, as the only item of damage sought by the claimant from the employer.

In its answer and in the issues preserved, the employer and insurer raise a notice issue. Since the case of Aramark Educational Services, Inc. v Leotha Faulkner, 408 S.W.3d 271 (MO ED 2013) the court makes it clear that if the statutory written notice of injury or actual notice is not made within 30 days, that it is the employee's burden to establish that there was no prejudice.

In the instant case, employee did just that. Robert Casey was diagnosed with the deadly disease on October 14, 2014. The employer did not receive notice until late February or early March of 2015, when the claim was filed and mailed to the employer.

Robert Cody was asked at hearing if he believed this delay caused any prejudice to him in defending the case. He testified that he did not destroy any documents during that timeframe and specifically did not believe he or his company was prejudiced by this late notice under the circumstances. Robert Casey clearly upheld his burden to prove that the employer was not prejudiced by the simple admission by the employer's president that his company was not prejudiced by any late notice of this claim.

As a second point on this issue, the death of Robert Casey is what this case was actually tried upon with the amended claim. It is clear that notice of the death was made to both parties immediately after the death occurred. Exhibit O is a letter dated October 12, 2015, directed to the attorneys for both E.J. Cody and the Accident Fund. This was one day after Robert Casey died. The notice was clearly received within 30 days of death.

I find that Robert Casey's mesothelioma and resulting death falls directly within the scope of the Accident Fund's insurance coverage for E.J. Cody, which it provided as a result of Missouri's 2014 amendments.

The claim by Accident Fund that the coverage does not apply to Robert Casey's death is unfounded and incorrect based on both the language of Accident Fund's own policy, as well as that policy's endorsement which specifically incorporates coverage under the new mesothelioma statute, Section 287.200.4(3).

Prior to the 2014 amendments which went into effect on January 1, 2014, there was no "enhanced benefit" for the toxic occupational disease of mesothelioma. As of January 1, 2014, an entirely new benefit was created. Robert Casey and his survivors seek that sole benefit, which

I am awarding in this case. That statute also allowed the employer to elect to either have this new mesothelioma coverage or opt out of the coverage and subject itself to regular civil liability, should one of its employees be stricken with mesothelioma.

Here, E.J. Cody opted in by purchasing a policy of workers compensation insurance from Accident Fund, which contained a specific Missouri mesothelioma endorsement. Accident Fund's policy, on its face, promised to provide coverage for any damages for which E.J. Cody was liable under this new mesothelioma benefit.

There is no retroactive effect in applying Accident Fund's policy as Accident Fund argues, because the exposure to asbestos predated the beginning of its insurance coverage. There was no viable claim for compensation until Robert Casey was diagnosed with an occupational disease and suffered disability or death. The trigger in the new statute is "diagnosis." There is no mention in the new statute of the insurance coverage to be provided at the time of last exposure to the hazard. Further, the General Assembly has specifically determined that the statute of limitations "shall not begin to run in cases of occupational disease until it becomes reasonably discoverable and apparent that a compensable injury has been sustained." Section 287.063.3. In order for this to happen, there must be a medical diagnosis identifying the disease and tying it to the work. Here, the new mesothelioma statute keys in and emphasizes the "diagnosis" with its own language, which states:

"4. For all claims filed on or after the effective date of this section for occupational diseases due to toxic exposure which result in a permanent total disability or death, benefits in this chapter shall be provided as follows:

(3) In cases where occupational diseases due to toxic exposure are diagnosed to be mesothelioma:"

Accident Fund in its endorsement specifically stated that it would cover this particular liability, and even mirrored the language of this statute in its endorsement, again using the statute's own language, "diagnosed to be mesothelioma." See Exhibits L and M and Exhibit 2.

Here, Robert Casey was diagnosed during the policy period. Therefore, the claim arose during the policy period, particularly in light of the new statute. When E.J. Cody elected mesothelioma coverage and in essence was told by its insurer that the insurance policy it held through Accident Fund applied to the new statutory provision put into effect on January 1, 2014, Accident Fund had the coverage for E.J. Cody.

Accident Fund claims it is absolved from liability based on a policy provision under Part One of its workers compensation insurance policy found at page 1 of the policy which states as to when the insurance applies, "The employee's last day of last exposure to the conditions causing or aggravating such bodily injury by disease must occur during the policy period."

Under the general provisions of that very same policy, however, Accident Fund has the following language, "The terms of this policy may not be changed or waived except by endorsement issued by us to be part of this policy." In other words, if Accident Fund provides an endorsement, it can change or waive sections of the policy. There is also a "conformation" to state law provision in its policy found at page 2, subparagraph H.6, which states, "Terms of this insurance that conflict with the workers compensation law are changed by this statement to conform to that law."

We then look at the mesothelioma endorsement and find that it modifies the policy completely in regard to mesothelioma benefits only. That endorsement which indicates that it will provide coverage to the insured, in this case, E.J. Cody, promises with very specific language mirroring the new Missouri Mesothelioma Law that it will, ". . .provide additional benefits in the case of occupational diseases due to toxic exposure that are diagnosed to be mesothelioma and result in permanent total disability or death. Your policy provides insurance for these additional benefits." Accident Fund promised E.J. Cody, Inc. through this very endorsement that it would cover cases like Robert Casey's case, which was a case under the new law that is "diagnosed to be mesothelioma."

Further, this mesothelioma endorsement drafted by the insurance carrier with no input from the insured or the employer provides no language that the last exposure must occur during the policy period. It only speaks of the "diagnosis" of mesothelioma and promises to cover "these additional benefits."

Under the current facts, the only diagnosis of mesothelioma was made during the policy period, October 14, 2014. Accident Fund promised E.J. Cody in its endorsement that it would cover that risk. Accident Fund promised in its policy that any modification of the policy could only be done by a valid endorsement. We have a valid endorsement by Accident Fund's very own policy language, which overrides any other provision in the policy.

Since Accident Fund drafted its policy, and had it wanted to exclude coverage for those who were "last exposed" at a time other than during the policy period, it certainly could have chosen to do so in its new mesothelioma endorsement. It did not put such language in its endorsement, but instead said it would cover those "diagnosed to be mesothelioma," not those who were last exposed to the hazard during the policy period. The endorsement mirrors the new mesothelioma benefit under the law.

I find that there is no ambiguity in the policy at all. Even if arguably at the very least, there would be an ambiguity in this policy, there would still be coverage. Missouri insurance law is rich with cases finding against an insurer where there is an ambiguity. "When provisions of an insurance policy are ambiguous, they are construed against the insurer." Krombach v Mayflower Ins. Co., 827 S.W.2d 208, 210 (Mo banc 1992). An ambiguity has been held to arise "when there is duplicity, indistinctness, or uncertainty in the meaning of the words used in the contract." Language is ambiguous if it is reasonably open to different constructions and the language used will be viewed in the meaning that would ordinarily be understood by laymen. Id; Citing Rodriguez v. General Accident Ins. Co., 808 S.W.2d 379, 382 (Mo banc 1991) and Robin v. Blue Cross Hospital Services, Inc., 637 S.W.2d 695, 698 (Mo banc 1982). Here, I do not find an ambiguity, but even if there was an ambiguity in the policy, it would be construed as to

whether or not a layman would believe that he was covered for a mesothelioma claim under the mesothelioma endorsement that he paid for. Certainly in this case, Robert Cody and his business would assume they had coverage when reading the endorsement, since it mirrors the exact language in the statute, which refers to the liability on E.J. Cody and provides benefits to Robert Casey since he was "diagnosed" with mesothelioma. Here, I find that the policy on its face provides coverage, and even if it would be held that there is ambiguity in the policy, that the ambiguity would be held against Accident Fund and, therefore liability lies with Accident Fund for the enhanced mesothelioma benefit under the 2014 amendments to the workers compensation law.

In their answer, a due process argument is raised under the United States and Missouri constitutions seeking to have the new workers compensation law dealing with mesothelioma to be held unconstitutional. The Division of Workers Compensation is without jurisdiction to determine the constitutionality of a Missouri Statute, and will not rule this issue.

I find that and rule that Robert Casey sustained an occupational disease which arose out of and in the course of his employment and which caused his death; the mesothelioma benefits under Section 287.200.4 apply to Robert Casey, his death, and his beneficiaries; the Accident Fund National Insurance Company's mesothelioma endorsement covered Robert Casey's death claim against E.J. Cody, Inc., therefore providing the enhanced mesothelioma benefit found in Section 287.200.4(3); and, the Employer/Insurer received proper notice of the occupational disease under the law. Therefore, I award the new mesothelioma benefit found in Section 287.200.4(3) - equal to 300 percent of the state's $\ 861.04 average weekly wage calculated as of the date of the diagnosis for 212 weeks, or, $\ 547,621.44 - to Robert Casey's dependents. Claimant's attorneys requested a fee equal to twenty five percent ( 25 % ) of all amounts awarded. I find that such request is fair and reasonable and order a lien attach to this award for $\ 136,905.36 until paid in full.

Made by: $\qquad$

Mark S. Siedlik

Administrative Law Judge

Division of Workers' Compensation