Marc Hayden v. Cut-Zaven, Ltd. and Papillion, Ltd.

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 [emphasis added].

Employee, a hairdresser, worked for employer Cut-Zaven, Ltd. from approximately 1976 to 1979. He owned multiple handheld hair dryers, which he used in his work for CutZaven. From approximately 1979 to 1982, employee worked for Papillion, Ltd. Employee continued to use handheld hair dryers while working for Papillion, Ltd. Some of the hair dryers employee owned and used in his work contained asbestos. Later, from 1983 to 1991, employee rented space from Papillion, Ltd. Employee testified that he continued to use hair dryers with asbestos until "during the late '70's . . . or early '80s where they finally took them off the market." ${ }^{2}$ Ms. Renate Ebbinghaus, a co-owner of Papillion, Ltd., testified she had no recollection of returning hair dryers to the manufacturer or retailer or throwing away hair dryers that "weren't used up". ${ }^{3}$

Claimant's medical expert Dr. Thomas Hyers initially testified that employee's malignant mesothelioma resulted from his use of asbestos-containing hair dryers at his worksite between 1967 and 1979. Dr. Hyers subsequently testified that he "would be surprised if all hairdryers containing asbestos disappeared from the marketplace in 1979", further stating, "I would speculate that some would be continued to be used [after 1979]. That's just the nature of product usage." ${ }^{4}$ In a January 10, 2017, report, employer's expert, Dr. Harold Barkman, stated that, "given the latency of mesothelioma, the exposures over that period of 1967 to 1982 would be within the window for the development of mesothelioma." ${ }^{5}$ Dr. Barkman testified, "[Employee's] last exposure to potential asbestos-containing compounds in a hair dryer probably occurred somewhere around 1982." ${ }^{6}$

Papillion, Ltd. argued that employee could not have been exposed to asbestos during its employ because hairdryers containing asbestos were not in use after their recall in the spring of 1979 and Papillion, Ltd.'s owner, Ms. Ebbinghaus, had no knowledge of Papillion, Ltd.'s use of hairdryers with asbestos.

Claimant produced an August 1980 U. S. Consumer Product Safety Commission publication listing hair dryer models containing asbestos and those without asbestos and manufacturer's responses. The publication advised the consumer, "As you can see from the list, most of the manufacturers have agreed to some form of recall, repair, or refund for models containing asbestos. The specific programs vary from manufacturer to manufacturer because the programs are voluntary not mandatory [emphasis added]."7 Some manufacturers merely offered to repair hairdryers containing asbestos

[^0]

[^0]: ${ }^{2} Transcript, p. 83.

{ }^{3} Id., p. 576.

{ }^{4} Id., p. 295. See also p. 259.

{ }^{5} Id., p. 312.

{ }^{6} Id., pp. 315-316.

{ }^{7}$ Id., p. 206.

if consumers returned them, at the consumer's cost. ${ }^{8}$ One manufacturer of handheld portable hairdryers terminated its "corrective action" on April 30, 1980, without explanation. ${ }^{9}$

Based on this evidence we find that asbestos-containing hair dryers remained in use after 1979, even after some manufacturers voluntarily recalled them, and that employee continued to use hairdryers containing asbestos during his employment with Papillion, Ltd. We conclude, for purposes of $\S 287.063$, that employee was last exposed to hairdryers containing asbestos during his employment for Papillion, Ltd.

Employer Papillion, Ltd. was insured by Hartford Fire Insurance Company from December 7, 1979 to December 7, 1980 and by Argonaut Insurance Company (a/k/a Great Central Insurance Company) from December 7, 1980, to December 7, 1983. We find that Argonaut Insurance Company is liable for the compensation awarded herein as the insurance carrier covering the risk at the time of employee's most recent exposure. Tunstill v. Eagle Sheet Metal Works, 870 S.W.2d 264 (Mo. App. 1994).

Claimant argues that pursuant to $\S 287.200 .4(3)(a)(1)$, which applies to mesothelioma claims filed after January 1, 2014, employee is entitled to payment of 300 % of the state's average weekly wage at the time of his diagnosis for 212 weeks. Claimant contends that "traditional" permanent total disability benefits as well as death benefits owed to employee's widow pursuant to $\S \S 287.200 .1$ and 287.240 must be calculated at the same enhanced rate.

Employer Papillon, Ltd. argues that the augmented benefits that came into effect on January 1, 2014, pursuant to § 287.220.2(1) do not apply to employee's March 9, 2015, claim because Papillion, Ltd. was out of business as of 2005 and the new benefit was not contemplated or part of its insurers' coverage at the time the coverage was in effect, from December 1979 through December, 1983.

On February 19, 2020, the Missouri Supreme Court issued Hegger v. Valley Farm Dairy Co., 596 S.W.3d 128 (Mo. 2020), a factually analogous case. The Court held:

Because Valley Farm ceased operations 16 years before the legislature created the enhanced benefits provided by section 287.200.4(3)(a), Valley Farm could not affirmatively elect to accept liability for the enhanced benefit as required under the statute. Claimants are not entitled to the enhanced benefit because Valley Farm did not elect to accept such liability [emphasis added]. Id., at 133.

[^0]

[^0]: ${ }^{8} See Transcript, pp. 212, 215, 222, 227, 244, 251 and 254.

{ }^{9}$ Id., p. 217.

We find that Hegger, supra, controls on the issue of the application of $\S 287.200 .4(3)$ (a) to employee's injury in this case. We find that claimant is not entitled to enhanced mesothelioma benefits because Papillion, Ltd. could not have elected them after its 2005 termination, nine years before $\S 287.200 .4(3)$ (a) became effective.

In his August 11, 2015, deposition, employee credibly testified that as an employee at Papillion, Ltd. he earned "from a thousand to 1,200 and then I would get 55 percent of it."10 At hearing, employee's attorney offered further documentation of employee's earnings from the Social Security Administration at hearing. The administrative law judge ruled these records were inadmissible.

Employers contend that employee failed to produce credible evidence of what he earned and that therefore his wage rate must be calculated at the statutory minimum of forty dollars per week pursuant to $\S 287.240(2)$ (e). Claimant urged calculation of employee's wage rate for traditional permanent total disability and death benefits based on the 2014 enhanced mesothelioma provisions. As we have found, the provisions included in $\S 287.200 .4(3)$ (a) allowing for enhanced mesothelioma benefits under certain circumstances do not apply in this case. In her brief to the Commission, Claimant acknowledged that based on a finding that $\ 1,100.00 was employee's average gross weekly wage, given that 55 % of $\ 1,100.00 is $\ 605.00, employee's wage rate prior to the January 1, 2014, enhanced mesothelioma provisions, ( $\ 605.00 multiplied by twothirds) would equal $\$ 403.33 .{ }^{11}$

We find that employee's testimony as to wages he earned in employment for Papillion, Ltd. constitutes competent and substantial evidence of his average weekly wage. We calculate employee's wage rate for weekly permanent total disability benefits and claimant's weekly death benefits at the rate of $\ 403.33. We award permanent total disability benefits from June 26, 2014, the date of employee's malignant mesothelioma diagnosis to his death on April 26, 2016. Thereafter, we award employee's widow, claimant Joan Moore Hayden, death benefits at the weekly rate of $\ 403.33 pursuant to $\S 287.240$ until her death or remarriage.

Claimant produced evidence of medical bills in the amount of $\ 462,699.24. Claimant's expert, Dr. Thomas M. Hyers, testified that these bills were fair, reasonable, usual, and customary for treatment of employee's malignant mesothelioma. Dr. William Barkman, retained by employer Cut-Zaven, stated in his January 10, 2017, report, "Although I am not an oncologist, the bills seemed reasonable and customary for the treatment of his mesothelioma."12

[^0]

[^0]: ${ }^{10} Transcript, p. 87.

{ }^{11}$ See Petitioner's Brief before the Labor and Industrial Relations Commission, filed February 2, 2018, n. 29, p. 19.

${ }^{9}$ Transcript, p. 312.

Employee: Marc Hayden, deceased

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Employers contend they should not be liable for employee's medical bills because they received no notice of his claim until after employee incurred the charges and had no opportunity to direct or control his medical treatment. Claimant's attorney argues that employers' failure to direct or pay for employee's treatment after notice of his March 4, 2015, claim for compensation gives rise to an inference that they would have refused treatment even had employee demanded it at an earlier time. Claimant cites Farmer-Cummings v. Future Foam, Inc., 44 S.W. 3d 830, 835 (Mo. App. 2001) as support for the conclusion that an employee's medical bills should not be denied solely on the basis that the employee did not notify employers of his need for treatment.

Based on the medical bills in evidence and the testimony of both Dr. Hyers and Dr. Barkman, discussed supra, and consistent with Farmer-Cummings, supra, we find employer/insurer liable for reimbursement for employee's medical bills in the amount of $\ 462,699.24.

Claimant asserted her entitlement to a $\ 5,000 burial expense pursuant to $\S 287.240$.

Section 287.240(1) provides, in pertinent part:

In all cases the employer shall pay direct to the persons furnishing the same the reasonable expense of the burial of the deceased employee not exceeding five thousand dollars. But no person shall be entitled to compensation for the burial expenses of a deceased employee unless he or she has furnished the same by authority of the widow or widower . . .

The record includes no documentation of employee's burial expenses. Employee's death certificate documented disposition of his body by removal from the state to the Life Legacy Foundation in Tucson, Arizona. ${ }^{13} Consistent with the provisions of \S 287.240$ we deny compensation for burial expenses because we find no evidence that any person incurred expense relating to the employee's burial.

Claimant argues that employer is liable for a 15 % penalty on all sources of compensation pursuant to $\S 287.120 .4$, which provides: "Where the injury is caused by the failure of the employer to comply with any statute in this state or any lawful order of the division or the commission, the compensation and death benefits provided for under this chapter shall be increased fifteen percent."

Claimant cites employer's failure to protect its employees from hazardous materials, as required by $\S \S 292.300,310$, and 320 . Section 292.300 requires employers engaged in carrying on any work, trade, or process which may produce any illness or disease

[^0]

[^0]: ${ }^{13}$ Transcript, p. 69.

"peculiar to the work or process carried on" to provide for protection of all employees engaged in such work trade or process "means or methods for the prevention of such industrial or occupational diseases as are incident to such work, trade of process."

Section 292.320 provides, in pertinent part:

Every employer in this state to which sections 292.300 to 292.440 apply shall provide . . . in all processes of manufacture or labor referred to in this section which are productive of noxious or poisonous dusts, adequate and approved respirators [which] shall be furnished and maintained by the employer in good condition and without cost to the employees, and such employees shall use such respirators at all times while engaged in any work productive of noxious or poisonous dusts.

Employer Papillion, Ltd., citing McGhee v. WR Grace \& Co., 312 S.W.3d 447 (Mo. App. 2010), urges that application of these statutes requires knowledge on the part of the employer of a hazard in order to protect the employee from the hazard. We agree.

We find no evidence that any named employer in this case knew of the asbestos hazard of handheld dryers either prior to or after their voluntary recall by some manufacturers in response to the U. S. Consumer Product Safety Commission's 1979 report, "Testing of Hair Dryers for Asbestos Emissions". ${ }^{14}$ To the contrary, Ms. Ebbinghaus, Papillion's co-owner, credibly testified she recalled no warnings or controversy regarding asbestos in hand-held hair dryers and had no conversations with employee about any potential asbestos risk.

Based on this evidence in the record, we deny claimant's request for a 15 % penalty on all compensation owed due to employer's failure to provide employee with a respirator during his employment as a hairdresser from 1979 to 1982.

Section 287.560 RSMo provides, in relevant part: [I]f the division or the commission determines that any proceedings have been brought, prosecuted or defended without reasonable ground, it may assess the whole cost of the proceedings upon the party who so brought, prosecuted or defended them. The Commission is authorized under the foregoing section to award costs and attorney's fees incurred by a party in responding to proceedings that are brought, prosecuted, or defended without reasonable ground. ${ }^{15}$ The Commission is to exercise its authority only "where the issue is clear and the offense egregious." ${ }^{16}$

[^0]

[^0]: ${ }^{14} Transcript, p. 118.

{ }^{15}$ DeLong v. Hampton Envelope Co., 149 S.W.3d 549, 555-556 (Mo. App. 2004) (citation omitted).

${ }^{16}$ Landman v. Ice Cream Specialties, Inc., 107 S.W.3d 240, 250 (Mo. 2003)

"An employer's defense is without reasonable ground where the employer offers "absolutely no ground, reasonable or otherwise" for refusing benefits clearly owed to a claimant because his injury was indisputably work-related." 17

The administrative law judge defined as one of the issues at hearing as, "Are Papillon, Ltd. and Argonaut Insurance Company entitled to attorney's fees and costs?"18 The administrative law judge resolved this issue in claimant's favor, stating, "I decline using my discretionary power of assessing cost [sic] 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." ${ }^{19}$ Papillion, Ltd. did not appeal the administrative law judge's award.

Claimant did not raise the issue of attorneys' fees and costs at hearing or in her application for review. Nor did claimant cite attorneys' fees and costs as an issue in her appeal to the court.

Because we are unable to identify any unresolved issues relating to attorney's fees and costs in this case, we include no determination of this issue in our award.

We find that employee's last exposure to the hazard of asbestos was during his 19791982 employment at Papillion, Ltd. We find employer Papillion, Ltd., liable for employee's disability and death resultant from his employment-related malignant mesothelioma.

We find Argonaut Insurance Company, Papillion, Ltd.'s insurer at the time of employee's last exposure, solely liable for the compensation owed to employee and his surviving spouse pursuant to this award.

We award weekly permanent total disability benefits in the amount of $\ 403.33 to employee from June 26, 2014, until his death on April 26, 2016. Thereafter, employer/insurer are liable to employee's surviving spouse, Joan Moore Hayden, for weekly death benefits in the amount of $\ 403.33, until her death or remarriage, as provided by $\S 287.240$ RSMo.

We find employer Papillion, Ltd. and its insurer Argonaut Insurance Company liable for employee's past medical bills in the amount of $\ 462,699.24.

We deny compensation for employee's burial expenses, finding no evidence of same, pursuant to $\S 287.240$.

We find that employer/insurer was unaware of any workplace asbestos hazard and that employee's death due to malignant mesothelioma was not attributable to

[^0]

[^0]: ${ }^{17}$ Clark v. Harts Auto Repair, 274 S.W.3d 612, 618. (Mo. App. 2009) (citations omitted).

${ }^{18}$ Award, p. 4. We note that the body of the Award incorrectly references "Papillion, Ltd." as "Papillon, Ltd."

${ }^{19} \mathrm{Id} ., \mathrm{p} .10$.

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employer/insurer's failure to comply with any state statute. Employer/insurer is therefore not liable for a 15 % penalty on all compensation awarded pursuant to § 287.120.4.

The award and decision of Administrative Law Judge Margaret D. Landolt is attached solely for reference.

We award the O'Brien Law Firm, P. C. a fee of 25 % of all compensation awarded necessary legal services rendered to employee, which shall constitute a lien on said for compensation.

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

Given at Jefferson City, State of Missouri, this $\qquad 3rd \qquad$ day of May 2021.

LABOR AND INDUSTRIAL RELATIONS COMMISSION


Robert W. Cornejo, Chairman

SEPARATE OPINION FILED

Reid K. Forrester, Member

Shalonn K. Curls

Shalonn K. Curls, Member

Attest:


I concur with the majority's award in compliance with Eastern District Court of Appeals mandate to the extent that it finds enhanced mesothelioma benefits do not apply in this case. I further concur that claimant's evidence defeats any claim for entitlement to a burial benefit and finds that employer/insurer are not liable for a 15 % penalty due to failure to provide employee with safety equipment. The majority's award correctly notes the absence of any disputed issue related to attorney's fees and expenses.

I reiterate the observation made by the Commission in its original unanimous award denying compensation that, "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." Marc Hayden, deceased and Joan Moore Hayden v. The Cut-Zaven, LTD and Papillon, LTD, Inj. No. 14-103077 (January 7, 2020), n. 5.

Because the claimant herein has utterly failed to clearly demonstrate any degree of asbestos exposure in the workplace of either of the named employers, I consider it impossible to determine the issue of liability based on employee's "last exposure". There is, in my opinion, no more evidence in the record to support an award against Papillion, Ltd. than to support an award against employee's prior employer, Cut-Zaven. The law is well settled that no "fact [may] be found, nor a claim or defense, nor an award be based upon mere speculation, suspicion or conjecture." Gass v. White Superior Bus Company and United States Fidelity \& Guaranty Company, 395 S.W. 501, 506 (Mo. App. 1965) citing Shrock v. Wolfe Auto Sales, Inc., Mo., 358 S.W.2d 812, 815. We may not base a finding on mere personal opinion unsupported by sufficient competent evidence. Kuykendall v. Gates Rubber Company 207 S.W.3d 694, 712. (Mo. App. 2006).

I further find the employee's self-serving testimony does not constitute credible evidence to support his wages in employment, so that consequently, the applicable compensation rate should be $\ 40.00 per week.

In my opinion, the majority inappropriately awards claimant nearly half a million dollars in medical bills for employee's mesothelioma treatment. Given employer's lack of timely notice of employee's injury and resultant inability to direct and control employee's medical treatment, consistent with $\S 287.140$ RSMo. the Commission should deny an award for past medical.

To the extent that the majority's award finds differently with respect to these disputed issues, I respectfully dissent.

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:

Additional Party: N/A

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 Company. Mr. Reynolds requested a fec 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.

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 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.

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

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[^0]: ${ }^{1}$ Although Employee refers to Cut Le Coupe and not Cut-Zaven in his deposition testimony, I will refer to Cut Le Coupe as CutZaven 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.

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 heatreduction 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

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

Issued by DIVISION OF WORKERS' COMPENSATION

Injury No. 14-103077

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 $462,699.24 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.

WC-32-81 (6-81)

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury No. 14-103077

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 Stude 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 asbestosfree. 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.

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 rclated." 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.