Marc Hayden v. The Cut-Zaven, LTD; Papillon, LTD

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

**Injury No.:** 14-103077

**Employee:** Marc Hayden, deceased

**Claimant:** Joan Moore Hayden

**Employers:** The Cut-Zaven, LTD, Papillon, LTD

**Insurers:** Hartford Fire Insurance Company, Argonaut Insurance Company, Travelers Indemnity Company of America, Trumbull Insurance Company

This workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 287.480 RSMo. Having reviewed the evidence, read the briefs, heard the parties' arguments, and considered the whole record, we find that the award of the administrative law judge 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.

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:

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

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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.

1. 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, that certain of her comments (especially if read in isolation from the entire context of her award) might be construed as approaching the disfavored realm identified in Vickers and Smith:

Here, Employee has simply presented a version of events he believes could have happened. Employee could have owned the specific serial numbers and models containing asbestos. It is also possible he could have used one of the serial numbers that did not contain asbestos. However, what "could" have happened is not competent and substantial evidence of what did happen. There is no testimony confirming Employee was ever exposed to any of the specific models of asbestos containing hairdryers during any particular time period with any of the named employers. Employee's testimony lacked the specificity required to prove his claim.

Administrative law judge's Award, page 10.

In light of the holdings in Vickers and Smith, we must, and do hereby, disclaim the foregoing comments, because we believe they are susceptible to an inference that claimant was required to prove employee experienced an actual or specific exposure to asbestos to satisfy her burden with regard to the issue of causation. We additionally conclude, as a matter of law, that claimant has at least met her burden of production (again, as identified in the Vickers and Smith decisions) with the expert medical opinion of Dr. Hyers.

As a final note with regard to the topic of exposure, we acknowledge that claimant, in her brief, has alleged that the administrative law judge misconstrued Dr. Barkman's testimony when she stated Dr. Barkman "concluded there was a good probability Employee was never subject to the risk of asbestos exposure because only certain models and serial numbers of the hairdryers he recalled using contained asbestos." Administrative law judge's Award, page 10. After our own careful review, we tend to agree with claimant that the testimony from Dr. Barkman does not sufficiently support this quoted statement by the administrative law judge; accordingly, we hereby disclaim this statement.

Credibility of the competing expert medical opinions - prevailing factor

Having provided the foregoing clarifications and comments, we nevertheless affirm the result reached by the administrative law judge. This is because, after careful

Injury No.: 14-103077

Employee: Marc Hayden, deceased

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consideration of the entire record, and in particular the testimony from employee, Dr. Barkman, and Dr. Hyers, we find most persuasive the opinions from Dr. Barkman with regard to the issue of medical causation. In particular, we believe Dr. Barkman provided the more persuasive analysis of the question whether employee's occupational exposure was the prevailing factor causing his mesothelioma.

We acknowledge claimant's argument, in her brief, that Dr. Barkman's opinion does not actually contradict that of Dr. Hyers, because Dr. Barkman agreed that "[employee] probably had an exposure[.]" Transcript, page 319. However, as the Smith court made clear, claimant was not required to produce evidence of a specific exposure to meet her burden of production with respect to causation. Therefore, the fact that Dr. Barkman appeared to agree with Dr. Hyers with regard to the question of exposure amounts to corroboration of a factual matter that claimant was not, in any event, required to prove, pursuant to the holding in Smith. Meanwhile, the more relevant opinion from Dr. Barkman pertains to the pivotal question whether employee's occupational exposure was the prevailing factor causing his mesothelioma. Dr. Barkman unequivocally opined that it was not. Transcript, pages 311, 316. After careful consideration, we find this opinion to be the most persuasive opinion with respect to the issue of medical causation of employee's mesothelioma.

In sum, crediting the opinion from Dr. Barkman, we find that employee's occupational exposure was not the prevailing factor causing his mesothelioma. Having so found, we conclude that employee did not suffer a compensable occupational disease arising out of and in the course of his employment. All other issues, including the choice of liable insurer in this matter, are therefore moot.

Proof of exposure after the 2005 amendments

Finally, we deem it appropriate herein to note that the current language of § 287.067.2, as amended in 2005, does instruct that we are to assess whether an employee's "occupational exposure" is the prevailing factor causing the claimed injuries. This language, taken together with the legislature's simultaneous abrogation, in § 287.020.10 RSMo, of all prior case law interpretations of the phrase "occupational disease," would seem to call into question the ongoing applicability of the rule from Vickers and Smith that a workers' compensation employee/claimant need not prove or even allege an actual or specific exposure to a claimed injurious agent at work.5

4 "In applying the provisions of this chapter, it is the intent of the legislature to reject and abrogate earlier case law interpretations on the meaning of or definition of 'accident', 'occupational disease', 'arising out of', and 'in the course of the employment' to include, but not be limited to, holdings in: Bennett v. Columbia Health Care and Rehabilitation, 80 S.W.3d 524 (Mo.App. W.D. 2002); Kasl v. Bristol Care, Inc., 984 S.W.2d 852 (Mo.banc 1999); and Drewes v. TWA, S.W.2d 512 (Mo.banc 1999) and all cases citing, interpreting, applying, or following those cases." § 287.020.10 RSMo.

5 Logically speaking, it is unclear how one can hope to demonstrate a particular occupational exposure was the prevailing factor causing a claimed injury without first identifying, with at least some degree of specificity, the actual injurious exposure that is claimed to have occurred.

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Our research reveals only one reported decision involving issues of causation in an occupational disease claim arising after the 2005 amendments: *Cheney v. City of Gladstone*, 576 S.W.3d 308 (Mo. App. 2019). Given that the *Cheney* court applied the various extra-statutory judicial doctrines for analyzing causation in an occupational disease claim (such as the "recognizable link" test) that predate the 2005 amendments to §§ 287.020.10, 287.067.2 and 287.800.1 RSMo, it does not appear that the parties in *Cheney* argued any issue with respect to applicability of the 2005 amendments, or that the court was otherwise given an opportunity to address such questions in that case.

Of course, there is no need for us to further consider such questions herein, because we are confident that our supplemental factual analysis falls within the permissible realm as identified in the *Vickers* and *Smith* decisions. We simply wish to note, for the benefit of the reader, that the issue of the effect (if any) of the 2005 amendments upon the requisite proof of exposure in occupational disease claims appears to be a matter ripe for clarification by the courts.

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

The award and decision of Administrative Law Judge Margaret Landolt, issued November 3, 2017, is attached and incorporated herein to the extent not inconsistent with this supplemental decision.

Given at Jefferson City, State of Missouri, this 7th day of January 2020.

**LABOR AND INDUSTRIAL RELATIONS COMMISSION**

**Robert W. Cordejo, Chairman**

**Reid K. Forrester, Member**

**Curtis E. Chick, Jr., Member**

**Attest:**

Secretary

Employee: Marc Hayden (Deceased)

Injury No.: 14-103077

Dependents: Joan Moore Hayden

Employer: The Cut-Zaven Ltd., Papillon Ltd.

Additional Party: N/A

Insurer: Hartford Fire Insurance Company, Argonaut Ins., Travelers Indemnity Company of America

Hearing Date: August 15, 2017

Before the<br>Division of Workers' Compensation<br>Department of Labor and Industrial<br>Relations of Missouri<br>Jefferson City, Missouri

Checked by: MDL

1. Are any benefits awarded herein? No
2. Was the injury or occupational disease compensable under Chapter 287? No
3. Was there an accident or incident of occupational disease under the Law? No
4. Date of accident or onset of occupational disease: Alleged June 26, 2014
5. State location where accident occurred or occupational disease was contracted: N/A
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes
7. Did employer receive proper notice? N/A
8. Did accident or occupational disease arise out of and in the course of the employment? No
9. Was claim for compensation filed within time required by Law? Yes
10. Was employer insured by above insurer? N/A
11. Describe work employee was doing and how accident occurred or occupational disease contracted: Employee alleges he contracted mesothelioma as a result of asbestos exposure as a hairdresser from using hair dryers.
12. Did accident or occupational disease cause death? No Date of death? April 26, 2016
13. Part(s) of body injured by accident or occupational disease: Alleged lungs and 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: N/A
3. Weekly compensation rate: N/A
4. Method wages computation: N/A

1. Amount of compensation payable:

TOTAL:

1. Future requirements awarded: None

Said payments to begin and to be payable and be subject to modification and review as provided by law.

The compensation awarded to the Employee shall be subject to a lien in the amount of N/A of all payments hereunder in favor of the following attorney for necessary legal services rendered to the Employee:

**Insurer:** Hartford Fire Insurance Company, Argonaut Ins, Travelers Indemnity Company of America

**Checked by:** MDL

A hearing was held on August 15, 2017, at the Division of Workers' Compensation in the city of St. Louis, Missouri. Marc Hayden ("Employee"), who is deceased, and his dependent Joan Moore Hayden were represented by Attorney Adam J. Reynolds. Attorney Jaudon R. Godsey represented the Travelers Indemnity Company of America. Michael C. Margherio represented The Cut-Zaven, Ltd. Taylor C. Leonard represented Papillon, Ltd. and Argonaut Insurance Company. William E. Paasch represented Papillon, Ltd. and Hartford Fire Insurance Company. Mr. Reynolds requested a fee of 25% of Employee's award.

The parties entered into the following stipulations:

1. Venue is proper in the city of St. Louis, Missouri.
2. Employee was first diagnosed with mesothelioma by a tissue biopsy on June 26, 2014.
3. Employee died from mesothelioma on April 26, 2016.
4. At the time of Employee's death, Joan Moore Hayden was Employee's lawful spouse.
5. Hartford Fire Insurance Company provided workers' compensation insurance coverage for Papillon, Ltd. from December 7, 1979, through December 7, 1980.
6. Argonaut Insurance Company provided workers' compensation insurance coverage for Papillon, Ltd. from December 7, 1980, through December 7, 1983.
7. The Travelers Indemnity Company of America provided worker's compensation coverage for The Cut-Zaven, Ltd. d/b/a Ta-da from October 4, 2013, through October 4, 2014.

Issued by DIVISION OF WORKERS' COMPENSATION

Injury No. 14-103077

ISSUES

The issues to be decided by hearing are:

1. Did Employee sustain an occupational disease arising out of and in the course of his employment?
2. Medical causation
3. Liability for past medical benefits of $462,964.94
4. Was Employee permanently and totally disabled from June 26, 2014 to April 26, 2016?
5. Who was the last employer to expose Employee to the hazards of asbestos pursuant to Section 287.063 RSMo.?
6. What was Employee's rate of compensation on June 26, 2014?
7. What was Employee's rate of compensation on the date Employee was last exposed to the hazards of asbestos in his occupation?
8. Which insurer is liable to provide benefits under Section 287.200.1 RSMo.?
9. Which insurer is liable to provide benefits under Section 287.200.4(3) RSMo.?
10. Is Joan Moore Hayden entitled to death benefits beginning on April 26, 2016, and into the future?
11. Are Papillon, Ltd. and Argonaut Insurance Company entitled to attorney's fees and costs?
12. Is Employee entitled to a 15% increase in benefits in compensation due to the failure of Employer to comply with Section 287.120.4 RSMo.?
13. Is Joan Moore Hayden entitled to a burial benefit of $5,000?
14. Is Section 287.200.4(3) unconstitutional?

EXHIBITS

Exhibits 1 through 3, and 9 through 22 were admitted into evidence. Objections to Exhibits 4 through 8 were sustained and the exhibits were not received. Travelers's Exhibit A-1 was received into evidence. Cut-Zaven's exhibits B-1 and B-2 were received into evidence. Papillon/Hartford Fire/Argonaut Exhibits CD 1 through 8 were received into evidence.

With respect to Exhibit B-2, the objections of Cut-Zaven, Ltd. to Employee's deposition, the court rules as follows:

Objection No 1. is sustained. Objections 2 though 13 are overruled. Objections 14 and 15 are sustained.

SUMMARY OF EVIDENCE

Employee worked as a hairdresser for 47 years. (Cl. Ex. 3 at 14/3). He graduated from beauty school in 1967 and worked at a number of salons including Stix, Baer & Fuller, Famous Barr, Cut-Zaven,¹ and Papillon. Id. at 14/6-9, 15/3-4, 15/22-24, 16/9-11. He was employed by Cut-Zaven between 1976 and 1979. Id. at 16/3-5. He was employed by Papillon between 1979

¹ Although Employee refers to Cut Le Coupe and not Cut-Zaven in his deposition testimony, I will refer to Cut Le Coupe as Cut-Zaven in this Award due to the fact that Cut-Zaven and Cut Le Coupe are the same entity. See Employee's Ex. 3 at 51/22-25.

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and 1982. Id. at 16/9-11. He was a self-employed hairdresser from 1983 until the fall of 2014. Id. at 36/18-25, 37/1-10. Employee believed he was exposed to asbestos from using hairdryers throughout his employment as a hairdresser until they were taken off the market. Id. at 19/15-21, 53/20-22.

Employee used hand-held hairdryers, which he believed contained asbestos, when he worked at Famous Barr in 1971. (Cl. Ex. 3 at 27/4-13). Employee testified he used the following hand-held hairdryers while employed at Famous Barr: Clairol (Employee was unable to recall the name of the specific Clairol hairdryer he used but testified it was a big, yellow hairdryer. He testified the Clairol "Son of a Gun" sounded familiar to him. He also recalled using some General Electric brand hand-held hairdryers at Famous Barr but did not name any specific model numbers. He testified he believed he used some General Electric "Power Turbo" model hairdryers, but indicated it had been many years ago. (Cl. Ex. 3 at 27/11-25, 28/1-12.)

While working at Cut-Zaven, between 1976 and 1979, Employee testified he used Conair "Pro Style" hand-held hairdryers, Clairol "Son of a Gun" hairdryers, and General Electric "Power Turbo" hairdryers. Id. at 28/13-25, 29/1-6. Employee believed the hand-held hairdryers he used at Cut-Zaven exposed him to asbestos. Id. at 29/7-10.

While working at Papillon from 1979 to 1982, Employee testified he used Conair "Pro Style", General Electric "Power Turbo", and Clairol "Son of a Gun" hairdryers. Id. at 29/15-25, Id. at 30/1-4. He testified he believed asbestos was used around the hairdryer coils as a heat-reduction mechanism. Id. at 30/16-22. Until 1979 or so, Employee opened the hairdryers and cleaned the filters if they became dirty. Id. at 31/7-11, 72/15-25, 73/1-3. Employee could not remember which models of hairdryers he cleaned. Id. at 74/13-17.

Between 1971 and 1982, Employee owned two or three hairdryers at a time and replaced the set at least twice a year. (Cl. Ex. 3 at 32/11-25, 34/18-25, 35/1-23). He kept a hairdryer at home that would last longer than the set at the salon. Id. at 3-4. He was responsible for providing all of his own equipment, including hairdryers, while working at Cut-Zaven and Papillon. Id. at 33/1-5. Employee estimated he replaced at least two sets of hairdryers between 1979 and when he became self-employed. Id. at 39/1-4. Employee could not recall which hand-held dryers he used at Papillon. Id. at 85/2-14.

In 2013, Employee suffered a heart attack and began experiencing issues with his lungs filling with fluid. (Cl. Ex. 3, 44/2-17). When the fluid was drained, physicians found shadows on his lungs and a biopsy was later performed. Id. at 39/10-25. Employee was diagnosed with mesothelioma on June 26, 2014, and underwent chemotherapy. Id. at 45/1-7. No physician advised Employee his diagnosis was related to his exposure to hairdryers. Id. at 54/7-9. Employee passed away on April 26, 2016, of mesothelioma and coronary artery disease. (Cl. Ex. 2).

Renate Ebbinghaus testified by deposition on behalf of Papillon, Hartford, and Argonaut. (Cut-aven Ex. B1). Ms. Ebbinghaus and her husband owned Papillon from 1979 to 2004 and she knew Employee from her work at the salon. Id. at 9/10-14, 11/14-22. When Papillon opened in the fall of 1979, all of the hooded hairdryers were new. Id. at 23/11-25. She recalled seeing Employee use hand-held hairdryers between 1979 and 1982 but could not recall

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any specific brands he used. *Id.* at 18/12-23, 22/22-23, 25/6-9. Ms. Ebbinghaus indicated that hairdressers at Papillon supplied their own handheld hairdryers and she denied any knowledge of when they broke or when they bought new ones. *Id.* at 24/13-25. She denied any knowledge that hairdryers previously contained asbestos. *Id.* at 23/1-4.

In August 1980, the U.S. Consumer Product Safety Commission ("CPSC") published a release documenting asbestos in hairdryers using information it had gathered in 1979. (Cl. Ex. 9). The release provided that Clairol "Son of Gun" Style Nos. TD-1 and TD-2 previously contained asbestos-based paper as a decorative element in the intake airstream. *Id.* Clairol stopped distributing the "Son-of Gun" Nos. TD-1 and TD-2 in September of 1978. *Id.* Clairol stated its tests indicated there were no asbestos emissions from its hair dryers. *Id.*

The Conair "Pro Style" 065 with serial numbers 1277, 0178, 0278, 0378, 0478, and 0578 were listed as containing asbestos. *Id.* Other "Pro Style" 065 serial numbers did not include asbestos. *Id.* As of 1979, when the CPSC gathered its information, Conair had discontinued the manufacturing of hairdryers containing asbestos heat shields. *Id.*

General Electric's Pro 10/5115-013 "Power Turbo" was listed as containing asbestos. *Id.* General Electric had discontinued shipping hairdryers containing asbestos insulation at the time it was contacted by the CPSC in 1979. *Id.*

On May 8, 2015, Employee's counsel contacted Dr. Thomas Hyers, who is board certified in Internal Medicine and Pulmonology, requesting a medical opinion and report. (Papillon, Hartford, Argonaut Ex. CD 2). In his correspondence, he provided Dr. Hyers with Employee's "Exposure History" which advised Employee "was directly exposed to asbestos during his full-time employment as a hairstylist from 1967 to 1979 from working with several models of hair dryers which contained asbestos linings....[s]tudies demonstrate that asbestos fibers become airborne from regular use of such hairdryers....[m]ost, if not all, models of hairdryers ceased the use of asbestos lining and were replaced with asbestos-free models in approximately 1979." *Id.*

At the request of Employee, Dr. Hyers prepared a report on May 14, 2015. (Cl. Ex. 10). He diagnosed Employee with malignant mesothelioma of the right pleura as a result of his use of asbestos-containing hairdryers at his workplace between 1967 and 1979. *Id.* He opined that the inhalation of airborne asbestos fibers from the hairdryers he used at his worksite was the prevailing factor in causing the malignant mesothelioma and that Employee was completely and permanently disabled because of the malignancy. *Id.*

After being provided with Employee's death certificate, Dr. Hyers provided a second report on December 19, 2016. (Cl. Ex. 11). Dr. Hyers opined Employee's medical care was appropriate for treatment of mesothelioma. *Id.* He also advised a standard notice period of thirty days from the date of diagnosis of mesothelioma would not have afforded the employer any additional opportunity to investigate how the exposure occurred. *Id.*

Dr. Hyers testified on behalf of Employee on April 4, 2017, that exposure to asbestos is the predominant cause of mesothelioma. (Cl. Ex. 14 at 12/16-18). Dr. Hyers explained he believed Employee was exposed to asbestos through his work as a hairdresser between 1967 and

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1. Id. at 14/22-25, 15/1-4. He testified he accepted the assertions made in Employee's counsel's May 8, 2015, correspondence as fact. Id. at 22/6-15. He testified at the time he wrote his May 14, 2015 and December 19, 2016 reports, he did not have Employee's deposition testimony. Id. at 23/11-15. Dr. Hyers testified in his practice he has not seen any hairstylists. He testified there are probably cases of mesothelioma that are caused by things other than asbestos exposure, and there are spontaneous cases of mesothelioma.

Dr. Hyers' third IME report dated April 24, 2017, advised that Employee's medical bills of $462,699.24² were fair, reasonable, usual, and customary. (Cl. Ex. 12).

At the request of Cut-Zaven and Travelers, Dr. Harold Barkman, who is board certified in pulmonology and internal medicine, provided an IME report on January 10, 2017. (Cl. Ex. 16). He explained that in 2014, Employee was evaluated for respiratory symptoms and ultimately diagnosed with right-sided pleural mesothelioma. Id. After reviewing the death certificate, he indicated the cause of death was mesothelioma but noted no comment was made regarding whether the disease was asbestos related. Id. He discussed his review of Employee's deposition testimony and reported Employee believed he was exposed to asbestos in hairdryers until 1982. Id.

Although Dr. Barkman indicated the great majority of mesotheliomas were related to asbestos exposure, he denied the prevailing factor in Employee's development of mesothelioma was his employment as a hairdresser. Dr. Barkman explained that although studies showed handheld devices emitted asbestos-containing compounds at varying levels, he did not know the amount or fiber type of various asbestos-containing compounds in the specific hairdryers. He stated given the number of hairdressers who used these devices over the years, and the lack of significant publication establishing association with the mesothelioma, he did not believe a direct correlation could be made. He stated: "In summary, historically he had exposure to asbestos-containing compounds; however, the intensity is poorly characterized. There is little scientific evidence pointing to an increased risk of mesothelioma in hairdressers. In addition, pathology report does not comment on presence of asbestos fibers. Therefore, I do not believe the prevailing factor causing his mesothelioma was his employment as a hair stylist."

Dr. Barkman testified on March 29, 2017, and clarified his opinions. (Cl. Ex. 17). He explained when determining the cause of mesothelioma, he generally relied on either epidemiological studies or scientific evidence such as tissue samples. Id. at 10/3-20. He stated in Employee's case, there were no studies linking employment as a hairdresser to an increase of development of mesothelioma and, additionally, no scientific evidence supporting asbestos exposure. Id. at 10-20. He specifically advised it would be improper to simply conclude "well, he was a hairdresser, he used a hairdryer and therefore the meso is related." Id. Dr. Barkman also testified it is not true all "mesos are associated with asbestos exposure." Id. at 33/2-11, 22/14-25.

Dr. Barkman testified if a product was recalled and no longer contained asbestos, it could not emit asbestos fibers, and could not cause mesothelioma. (Cl. Ex. 17 at 25/14-18). He conceded Employee testified he was only exposed to asbestos until the hairdryers were recalled and the hairdryers Employee claimed contained asbestos were no longer produced after

2 This number is inconsistent with the figure stipulated to by the parties. Because no benefits are awarded the discrepancy is not addressed.

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September of 1978 and 1979. Id. at 31/3-13. He also testified Employee's hairdryers could have been asbestos-free because only certain versions and serial numbers of the hairdryers contained asbestos. Id. 33/16-24.

Employee's counsel provided a settlement demand to Cut-Zaven, Travelers, Hartford, and Argonaut on January 27, 2017. (Papillon, Hartford, Argonaut Ex. CD4). In this correspondence, Employee's counsel advised, "the only reasonable inference which may be drawn is that his last exposure occurred sometime during the 1976 through spring 1979 time period while he worked at Cut-Zaven." Id. at 2. The letter further indicated Employee's social security records show he worked at Papillon from 1979 to 1983. The letter went on to note that it would be "speculative to assume Mr. Hayden may have been exposed after the hairdryer recall in Spring, 1979, but we have kept Papillon, Ltd. in the case should Cut-Zaven argue that the last exposure occurred during the time period Mr. Hayden worked there."

FINDINGS OF FACT AND RULINGS OF LAW

Based upon a comprehensive review of the evidence, and the application of Missouri law, I find:

Occupational disease is defined in §287.067³ as "an identifiable disease arising with or without human fault out of and in the course of employment." §287.067.2 provides:

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.

§287.067.6 states "disease of the lungs or respiratory tract including carcinoma, may be recognized as occupational diseases for the purposes of this chapter and are defined to be disability due to exposure to smoke, gases, [and] carcinogens," amongst other hazards.

"In order to support a finding of occupational disease, employee must provide substantial and competent evidence that he has contracted an occupationally induced disease rather than an ordinary disease of life." Kelley v. Banta and Studc Const. Co. Inc., 1 S.W.3d 43 (Mo. App. E.D. 1999). Two considerations are required by this inquiry: "(1) whether there was an exposure to the disease which was greater than or different from that which affects the public generally, and (2) whether there was a recognizable link between the disease and some distinctive feature of the employee's job which is common to all jobs of that sort." Id.

The Employee has the burden to prove causation of an occupational disease. Townser v. First Data Corp., 215 S.W.3d 237, 241 (Mo. App. E.D. 2007). Questions of causation are issues of fact to be decided by the Commission. Sanderson v. Porta-Fab Corp., 989 S.W.2d 599 (Mo. App. 1999). "Where the opinions of medical experts are in conflict, the fact finding body determines whose opinion is most credible. Where there are conflicting medical opinions, the fact finder may reject all or part of one party's expert opinion which it does not consider credible

3 Language of §287.067 in effect as of January 26, 2014.

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and accept as true the contrary testimony given by the other litigant's expert." *Kelley*, 1. S.W.3d at 48.

Both of the experts in this case agree Employee had mesothelioma and died from the disease. Mesothelioma is an identifiable disease, which is not an ordinary disease of life to which the general public is exposed outside of employment. With regard to the requirement that there be "a recognizable link between the disease and some distinctive feature of employee's job which is common to all jobs of that sort," Employee presented Employee's deposition testimony, a CPSC Bulletin List of Recalled Hairdryer Brands, and the expert medical opinion of Dr. Hyers. Cut-Zaven, Travelers, Papillon, Hartford, and Argonaut rely on the testimony of Renate Ebbinghaus and the expert opinion of Dr. Harold Barkman to support their position that Employee was not exposed to asbestos throughout his employment as a hairdresser.

Having thoroughly reviewed and considered all the evidence in this matter, for the reasons described in more detail below, I find Employee failed to meet his burden of proof regarding medical causation and, therefore, the Claim must be denied. I find Employee was not employed in an occupation or process in which the hazards of an occupational disease due to toxic exposure existed.

Employee testified he used Conair "Pro Style", Clairol "Son of a Gun", and General Electric "Power Turbo" hairdryers throughout his employment. However, he couldn't specifically recall the name of the Conair hairdryer he used and seemed unsure whether he had used General Electric Power Turbo hairdryers at it was "so long ago." Employee failed to provide any style numbers or serial numbers for the hairdryers he used. He testified he believed asbestos was used around the hairdryer coils as a heat reduction mechanism. He explained he would sporadically have to open the hairdryers and clean the filters but was unsure which brands of hairdryers he actually had to clean.

Despite Employee's testimony regarding the asbestos contaminated hairdryers, the CPSC Bulletin List of Recalled Hairdryer Brands provides that as of early 1979, only a small subsection of the hairdryers Employee identified contained asbestos. The Clairol "Son of Gun" Style Nos. TD-1 and TD contained asbestos-based paper as a decorative element in the intake airstream until September 1978, but not around the coils as suggested by Employee. Clairol maintained that prior to September 1978 none of its models emitted asbestos as it was not used for heat reduction, and was instead, decorative. With respect to the Conair "Pro Style" 065, only six serial numbers contained asbestos prior to 1979, all other "Pro Style" serial numbers were asbestos-free. The General Electric Pro 10/5115 "Power Turbo" was the only "Power Turbo" model to contain asbestos prior to 1979. General Electric specifically advised that the model number (5115) was "key in identifying the suspect model."

Employee depends on Dr. Hyers' conclusion that Employee suffered malignant mesothelioma of the right pleura as a result of his use of asbestos containing hairdryers due to his work as a hairdresser until 1979 and that the inhalation of asbestos fibers was the prevailing factor in Employee's malignant mesothelioma. At the time of his initial IME report and his addendum report, Dr. Hyers had not been provided Employee's deposition testimony and conceded he accepted the "Exposure History he received from Employee's counsel on May 8, 2015, as fact.

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After reviewing the vocational history, relevant medical history, Employee's deposition testimony, and the CPSC Bulletin List of Recalled Hairdryer Brands, Dr. Barkman provided clear and consistent testimony that Employee's employment as a hairdresser was not the prevailing factor in the diagnosis of mesothelioma. He explained no studies supported Employee's contention that he was exposed to asbestos during his work as a hairdresser and Employee provided no scientific evidence of asbestos exposure. He further advised asbestos was not the only cause of mesothelioma and clarified it would be incorrect to assume all "mesos are associated with asbestos exposure." Dr. Barkman specifically noted it would be improper to simply conclude Employee "was a hairdresser, used a hairdryer, and therefore then meso is related." Importantly, he concluded there was good probability Employee was never subject to the risk of asbestos exposure because only certain models and serial numbers of the hairdryers he recalled using contained asbestos. Dr. Barkman testified there were no studies linking employment as a hairdresser to an increase in developing mesothelioma.

I find Dr. Barkman's opinion more persuasive than Dr. Hyers' opinion. Dr. Hyers' opinion fails because it is based upon the assumption that Employee was exposed to asbestos throughout his career as a hairdresser, and those assertions were not proved.

Here, Employee has simply presented a version of events he believes could have happened. Employee could have owned the specific serial numbers and models containing asbestos. It is also possible he could have used one of the serial numbers that did not contain asbestos. However, what "could" have happened is not competent and substantial evidence of what did happen. There is no testimony confirming Employee was ever exposed to any of the specific models of asbestos containing hairdryers during any particular time period with any of the named employers. Employee's testimony lacked the specificity required to prove his claim. In addition there was no scientific evidence presented that hairdressers are at an increased risk of developing mesothelioma.

Based on the vocational history, relevant medical history, and testimony, I find Employee's employment was not the prevailing factor in his development of mesothelioma. Employee's Claim is denied.

I decline using my discretionary power of assessing cost and fees in favor of Papillon, Ltd. and Argonaut. Employee's counsel's letter indicated Employee had a good faith and reasonable argument to not dismiss Papillon, Ltd.

The remaining issues are moot.

I certify that on 11-3-17, I delivered a copy of the foregoing award to the parties to the case. A complete record of the method of delivery and date of service upon each party is retained with the executed award in the Division's case file.

By

MARGARET D. LANDOLT

Administrative Law Judge

Division of Workers' Compensation

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