Vincent Hegger v. Valley Farm Dairy Co.

FINAL AWARD DENYING COMPENSATION

(Affirming Award and Decision of Administrative Law Judge with Supplemental Opinion)

Injury No.: 14-103079

Employee: Vincent Hegger (Deceased)

Dependents: Children of Vincent Hegger (Estate)

Employer: Valley Farm Dairy Co.

Insurers: Amerisure Insurance Company

Travelers Indemnity Co. of America

This workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by $\S 287.480$ RSMo. Having reviewed the evidence, read the briefs, and considered the whole record, we find that the award of the administrative law judge (ALJ) denying compensation is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to § 286.090 RSMo, we affirm the award and decision of the administrative law judge with this supplemental opinion.

Petitioner, the children of deceased employee Vincent Hegger, filed an application for review of the ALJ's award denying compensation. Petitioner accepts the ALJ's findings of fact and dispute only her interpretation of $\S 287.200 .4(3) (a) RSMo. { }^{1}$

This is a case of first impression regarding the application of the optional enhanced mesothelioma liability benefit provided for in § 287.200.4(3)(a) by an employer who ceased to exist prior to the January 1, 2014, effective date of the statute.

We conclude that the enhanced mesothelioma benefits provided for in § 287.200.4(3)(a) are triggered only when an employer takes an affirmative action to accept the protections of the statute by purchasing a potentially separate policy of insurance for the new, enhanced mesothelioma benefit. We agree with the ALJ's conclusion that an employer who ceased to exist prior to the January 1, 2014, effective date of the enactment of § 287.200.4(3), could not have made a decision to take or accept liability thereunder. ${ }^{2}$

The insurance carrier with coverage as of the date of last exposure has been held liable for payment of traditional benefits. Enyard v. Consolidated Underwriters, 390 S.W.2d 417 (Mo. App. 1965). We question whether employer's failure (i.e. inability) to take the affirmative steps

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[^0]: ${ }^{1}$ The brief filed on behalf of employer and insurer Amerisure Insurance Company attempts to raise the additional issue of whether, under $\S 287.063$, employee was last exposed to the hazards of asbestos in his work for Valley Farm Dairy Co. Petitioner correctly notes that because employer/insurers filed no application for review, this issue is not preserved for the Commission's review.

${ }^{2} We note that provisions of \S 287.200 .2(3)$ (a) relating to election of mesothelioma liability are not entirely clear. The subsection provides "In order for an employer to make such an election, the employer shall provide the department with notice of such an election in a manner established by the department (emphasis added)." Neither the subsection nor the Act defines the term "department." It may be inferred, based on the labor department director's membership on the Board of Trustees of the Missouri Mesothelioma Risk Management Fund pursuant to § 287.223.10 RSMo, that notice of an election to accept or reject mesothelioma liability would appropriately be filed with the DOLIR. Consistent with this logic, the Division of Workers' Compensation has promulgated forms WC-304-I and WC-304-G for employers to provide notice to the Division of Workers' Compensation, Department of Labor and Industrial Relations of their election to either reject or to accept mesothelioma liability by (1) the purchase of insurance coverage; (2) by self-insurance authority approved by the division; or (3) becoming a member of a group insurance pool that complies with the requirements of $\S 287.223$ RSMo.

necessary to accept liability for the additional benefits provided under § 287.200.4(3) would relieve said insurer of liability for other benefits under the Act. This issue, however, is not before us.

In fact, it appears that $\S 287.200 .4(3)$ may reasonably be interpreted as a specific exception to the general rule set forth in $\S 287.280$, requiring that any policy of insurance cover employer's entire liability under the workers' compensation law. Section 287.200.4(5) provides that enhanced mesothelioma benefits unpaid at the time of an employee's death "are payable to the employee's spouse or children, natural, or adopted, legitimate or illegitimate, in addition to benefits provided under section 287.240 (emphasis added)." Section 287.200.4(5) further uniquely provides that in the event the employee has no surviving spouse or children, any remaining additional enhanced mesothelioma benefits are to be paid as a single payment to the employee's estate. Id.

We affirm the ALJ's finding that administrative agencies such as the Division and this Commission are not invested with jurisdiction to resolve the issue of constitutionality of application of § 287.200.4(3). See Tardus v. Missouri Bd of Pharmacy, 849 S.W.2d 222,225 (Mo. App. 1993). We note, however, that employer and Amerisure Insurance Company have preserved their constitutional arguments for appeal.

We affirm and adopt the award of the administrative law judge as supplemented herein.

The award and decision of Administrative Law Judge Karla Ogrodnik Boresi, issued January 25, 2017, is attached and incorporated herein to the extent not inconsistent with this supplemental decision.

Given at Jefferson City, State of Missouri, this $13^{\text {th }}$ day of December 2017.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

VACANT

Member

Curtis E. Chick, Jr., Member

Attest:

1. Are any benefits awarded herein? No.
2. Was the injury or occupational disease compensable under Chapter 287? No (as to enhanced benefits)
3. Was there an accident or incident of occupational disease under the Law? See Award
4. Date of accident or onset of occupational disease: N/A
5. State location where accident occurred or occupational disease was contracted: St. Louis
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? N/A
7. Did employer receive proper notice? N/A
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? No (as to enhanced benefits)
11. Describe work employee was doing and how accident occurred or occupational disease contracted: Claimant worked with asbestos products, resulting in injury to the lungs.
12. Did accident or occupational disease cause death? Yes
13. Part(s) of body injured by accident or occupational disease: Lungs, Body as a whole
14. Nature and extent of any permanent disability: N/A
15. Compensation paid to-date for temporary disability: N/A
16. Value necessary medical aid paid to date by employer/insurer? N/A

1. Value necessary medical aid not furnished by employer/insurer? N/A
2. Employee's average weekly wages: The parties stipulated the average weekly wage at the time of Employee's diagnosis of mesothelioma was $\ 812.46.
3. Weekly compensation rate: N/A
4. Method wages computation: Stipulation

1. Amount of compensation payable: $\ 0.00
2. Second Injury Fund liability: N/A
3. Future requirements awarded: N/A

Employee: Vincent Hegger (Deceased)

Imprinting: Children of Vincent Hegger (Estate)

Employer: Valley Farm Dairy Co.

Insurers: Amerisure Insurance Company

Travelers Indemnity Co. of America

Injury No.: 14-103079

Before the

Division of Workers' Compensation

Department of Labor and

Industrial Relations

Of Missouri

Jefferson City, Missouri

Checked by: KOB

This case involves an alleged occupational disease due to toxic exposure diagnosed as mesothelioma arising from exposure to asbestos, which ultimately took the life of Vincent Hegger ("Employee") on June 7, 2015. It is a case of first impression ${ }^{1}$ regarding the application of the so-called "enhanced benefit" provided in §287.200.4(3)(a) RSMo $2014^{2}$ to an insurance policy predating the effective date of the statute.

An evidentiary hearing was held on October 25, 2016. Attorneys Thomas L. Stewart and Adam J. Reynolds represented Employee and his Estate (children Steven Hegger and Diane Hegger). The Estate is referred to in this award as "Claimants." Attorney Christopher Archer represented Valley Farm Dairy ("Employer") and Amerisure Insurance Company ("Amerisure"). Attorney Jaudon Godsey represented Travelers Insurance Company ("Travelers") who was an additional insurer ${ }^{3} of Employer. The Division had jurisdiction to hear this case pursuant to \S 287.110$.

The following exhibits were admitted into evidence:

Claimants Exhibits

1. Hearing Brief ${ }^{4}$
2. Stipulations of the Parties
3. Social Security Administration - employment records
4. Proof of Insurance Coverage for Valley Farms Dairy
5. Certificate of Death - Vincent Hegger
6. Barnes-Jewish Hospital - Surgical Pathology Report
7. Dr. Anthony Shen - report dated March 22, 2015, supplemental report of August 3, 2016, and Curriculum Vitae
8. Deposition of Employee taken on May 19, 2015
9. Record of State's average weekly wage for the period of July 1, 2013 to June 30, 2014

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[^0]: ${ }^{1}$ As of the date of this Award, the only other decision addressing the new law was that of Administrative Law Judge Mark S. Siedlik in the matter of Robert Casey, Injury No. 14-102671. The underlying facts were significantly different in Casey because the employer had a policy that contained a specific endorsement under §287.200.4(3).

${ }^{2}$ All statutory references shall be to Chapter 287 RSMo 2014 unless otherwise noted.

${ }^{3}$ At times in this Award, Amerisure and Travelers may be referred to jointly as "Insurers."

${ }^{4}$ While not technically evidence, this brief was accepted at hearing as part of Claimant's post-trial brief.

Amerisure Exhibit A: Third-Party Releases ${ }^{5}$

Travelers Exhibit I: Excerpt from Employee's deposition from third party case

The parties stipulated the only benefits at issue are the "enhanced benefits" in $\S 287.200 .4(3)^{6}$. Accordingly, the parties identified the following as the issues for determination:

1. Was Employee's exposure to asbestos at work the prevailing factor for his diagnosis of mesothelioma?
2. Under $\S 287.063$, was Employee last exposed to the hazards of asbestos in his occupation working for Employer?
3. Is Amerisure or Travelers liable for payment of the "enhanced benefits"?
4. Does the Missouri Constitution prohibit the award of the "enhanced benefit" for mesothelioma as provided in $\S 287.200 .4(3)$ that became effective on January 1, 2014 to find a prior employer and its prior carrier liable for such benefits?

Claimant seeks to recover the "enhanced benefits" of $\S 287.200 .4(3)$ created with the passage of Senate Bill 1 ("SB1"), effective as of January 1, 2014. Although much of SB1 focused on changes to the Second Injury Fund, the bill also addressed occupational diseases under the Missouri Workers' Compensation Act ("Act"). SB1 clarified the exclusivity of the Act applied to occupational diseases by adding "occupational diseases" to $\S 287.210$ which establishes the Act as workers' exclusive remedy and shields employers from civil liability.

Furthermore, SB1 added a new class of occup