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

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[^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.

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[^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

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[^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