On November 3, 2017, the administrative law judge issued her award denying compensation to claimant. Claimant filed a timely application for review to the Labor and Industrial Relations Commission (Commission).
On June 4, 2018, in response to a decision by the Supreme Court of Missouri in the case of *Accident Fund Ins. Co. v. Casey*, 550 S.W.3d 76 (Mo. 2018), claimant filed with the Commission a Motion to Add a Necessary and Indispensable Party to the Claim, requesting that Trumbull Insurance Company be added as a party to this matter.
On June 28, 2018, respondents Papillon, LTD, Hartford Fire Insurance Company, and Argonaut Insurance Company filed their Motion to Quash Petitioner's Motion to Add a Necessary and Indispensable Party to the Claim.
On August 6, 2018, respondent Travelers Indemnity Company of America filed its own Response to Petitioner's Motion to Add a Necessary and Indispensable Party to the Claim.
On September 10, 2018, Trumbull Insurance Company filed its Motion to Quash Petitioner's Motion to Add a Necessary and Indispensable Party to the Claim.
Injury No.: 14-103077
Employee: Marc Hayden, deceased
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On January 11, 2019, the Commission issued an order granting claimant's Motion to Add a Necessary and Indispensable Party to the Claim, and added Trumbull Insurance Company as a party to this matter.¹
After an opportunity for additional briefing from the parties, the Commission heard oral argument in this matter on June 4, 2019.
We hereby commend each of the parties' attorneys for their well-researched and well-reasoned briefs and presentations at oral argument. We further wish to express our appreciation to the parties for their patience as we strove to apply the requisite degree of time and attention we felt was necessary to adjudicate this factually and legally complex appeal.
**Discussion**
**Occupational disease - burden of proof**
Employee died from the disease of mesothelioma on April 26, 2016. Claimant alleges that employee's mesothelioma constituted an occupational disease arising out of and in the course of his employment as a hairdresser. The administrative law judge denied the claim based on a finding that the expert medical opinion from Dr. Harold Barkman (that employee's occupational exposure was not the prevailing factor causing employee to suffer the resulting medical condition of mesothelioma) was more persuasive than the contrary expert medical opinion testimony from Dr. Thomas Hyers.
After careful consideration, we are not inclined to reverse the ultimate determination by the administrative law judge to deny this claim on the issue of medical causation. However, in light of certain decisions from the Missouri Court of Appeals on the topic of the proper burden of proof in occupational disease claims, we discern a need to provide some analysis and clarifying commentary of our own.
We begin, as we must, by referencing the particular statutory test at issue, which by virtue of the mandate under § 287.800.1 RSMo,² we are required to strictly construe.³ Section 287.067 RSMo provides 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
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¹ The January 11, 2019, order by the Commission was issued on a 2-1 vote over a dissent by Commission Member Reid K. Forrester.
² "Administrative law judges, associate administrative law judges, legal advisors, the labor and industrial relations commission, the division of workers' compensation, and any reviewing courts shall construe the provisions of this chapter strictly." § 287.800.1 RSMo.
³ It appears from the record before us that employee first suffered the disabling effects of mesothelioma when he suffered a heart attack in November 2013; we so find. Therefore, the appropriate "date of injury" for this claimed occupational disease is November 2013, with the effect that the 2005 amendments to the Missouri Workers' Compensation Law are applicable to this claim. See *Garrone v. Treasurer of State*, 157 S.W.3d 237 (Mo. App. 2004).
Injury No.: 14-103077
Employee: Marc Hayden, deceased
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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.
In this case, Dr. Hyers opined that employee's occupational exposure to asbestos-containing hairdryers was the prevailing factor causing him to suffer the resulting medical condition of mesothelioma. On the other hand, Dr. Barkman opined that employee's occupational exposure was not the prevailing factor causing the resulting medical condition of mesothelioma. As correctly noted by the administrative law judge, the question of medical causation is one of fact, and the choice of which medical expert to credit in any given claim is one for the fact-finder:
> Our courts have consistently held that the Commission, in cases of competing expert medical evidence, is free to pick and choose which expert to believe. This Court is obligated to defer to the Commission on issues of fact, the credibility of the witnesses, and the weight given conflicting evidence.
*Cheney v. City of Gladstone*, 576 S.W.3d 308, 317 (Mo. App. 2019).
However, we note that in the case of *Vickers v. Mo. Dep't of Pub. Safety*, 283 S.W.3d 287 (Mo. App. 2009), the Missouri Court of Appeals, Western District, reversed a Commission decision affirming and adopting an administrative law judge's award denying compensation in an occupational disease claim, even where said award turned upon an express finding with regard to the relative credibility of competing medical experts as to the question of causation. Unlike the administrative law judge and the Commission in that case, the *Vickers* court was not troubled by the employee's failure to identify a specific instance of occupational exposure to the claimed injurious agent (the clostridium difficile bacterium), and instructed that:
> 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. In fact, the medical experts for both sides in this case agreed that determining exactly when Vickers contracted C diff would be impossible. Under 287.067, however, a single medical expert's opinion may be competent and substantial evidence in
Injury No.: 14-103077
Employee: Marc Hayden, deceased
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support of an award of benefits, even where the causes of the occupational disease are indeterminate.
Vickers v. Mo. Dep't of Pub. Safety, 283 S.W.3d 287, 295 (Mo. App. 2009)(emphasis in original).
Several years later, in the case of Smith v. Capital Region Med. Ctr., 412 S.W.3d 252 (Mo. App. 2013), the Western District once again reversed a Commission decision that turned upon an express decision (extensively explained in the Commission's award) to credit one medical expert over another with regard to the issue of causation in an occupational disease claim. In Smith, the court focused on the contrast between the burden of production and the burden of persuasion:
> The burden of proof has two parts: the burden of production and the burden of persuasion. ... The burden of production is a party's duty to introduce enough evidence on an issue to have the issue decided by the fact-finder, rather than decided against the party in a peremptory ruling such as summary judgment or a directed verdict. The burden of persuasion is defined as a party's duty to convince the fact-finder to view the facts in a way that favors that party.
Smith v. Capital Region Med. Ctr., 412 S.W.3d 252, 259 (Mo. App. 2013).
The Smith court instructed that the claimant was not required to prove a specific instance of the employee having been exposed, at work, to the claimed injurious agent (the hepatitis C virus), in order to meet her burden of production. Id. at 261. Instead, echoing Vickers, the Smith court declared that a single medical expert's opinion was sufficient to meet the burden of production as to the issue of causation. Id. at 262. The court then held that certain of the Commission's comments, referencing the Smith claimant's failure to provide any evidence of the employee's occupational exposure to hepatitis C, had so fatally undermined the express credibility findings contained within the Commission's decision, that the court was persuaded to reverse and remand the matter to allow the Commission to reweigh the expert opinion evidence in light of the court's instructions with regard to the appropriate burden of proof. Id.
In a subsequent appeal involving the same claim, the court clarified its ultimate holding as follows:
> In Smith I, we held that Smith was not required to present evidence of specific exposure to an occupational disease in the workplace; rather, she was required to submit medical evidence establishing a probability that working conditions caused the disease.
Smith v. Capital Region Med. Ctr., 458 S.W.3d 406, 415 (Mo. App. 2014).
The enduring message of the Vickers and Smith line of decisions is that we must take special care, when we analyze occupational disease claims, not to conflate the
Injury No.: 14-103077
Employee: Marc Hayden, deceased
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employee's burden of production with the employee's burden of persuasion. Pursuant to Vickers and Smith, an employee need not provide evidence of a specific or actual exposure to an injurious agent at work to meet his or her burden of production. By extension, a fact-finder who misapprehends the employee's burden of production (e.g., by suggesting that an employee must identify a particular, specific exposure to the claimed source of injury) may render his or her own fact findings subject to reversible legal error, as demonstrated in both Vickers and Smith.
We are confident that the administrative law judge properly understood the relevant factual and legal issues involved in this claim. We are concerned, however,