Court of Appeals of Missouri, Eastern District, Fourth Division
from the Labor and Industrial Relations Commission
M. Gaertner, Jr., Judge.
2013, after negotiations and an agreement with various
interest groups, including employer and employee
representatives, the Missouri legislature enacted and amended
certain provisions of Chapter 287, Missouri's
Workers' Compensation Law. The goal of these statutory
revisions was to make Missouri's Workers'
Compensation Law the exclusive remedy for employee claims of
occupational disease due to toxic exposure and thereby reduce
the potential significant civil liability for employers by
moving exposure cases from the circuit court to the Division
of Workers' Compensation.
Hegger (Hegger) died in 2015 from mesothelioma caused by
exposure to asbestos while working at Valley Farm Dairy
Company (Valley Farm). Prior to his death, Hegger filed a
claim for workers' compensation benefits. Hegger and then
his children (Claimants) sought workers' compensation
benefits, pursuant to one of the amended statutes, Section
287.200.4, effective January 1, 2014. The Administrative Law Judge
(ALJ) determined that a company that is no longer in
business, such as Valley Farm, cannot "elect to
accept" coverage under this statute's language and
thus Claimants were not entitled to benefits. The Labor and
Industrial Relations Commission (Commission) affirmed the
ALJ's decision. We hold that Claimants are entitled to
benefits under Section 287.200.4 and reverse the
Commission's decision. The cause is remanded for the
Commission to determine which insurer is liable under the
last exposure rule.
1968 to 1984, Hegger worked for Valley Farm performing
maintenance duties. Hegger's duties included maintaining
industrial equipment, such as ammonia compressors, boilers,
and fireboxes. Much of this work created asbestos dust which
Hegger inhaled. Hegger's work for Valley Farm was the
last time he worked with or was exposed to asbestos.
Amerisure Insurance Company provided Valley Farm with
workers' compensation coverage from October 17, 1983
until October 17, 1984, and Travelers Indemnity Company of
America provided coverage from October 17, 1984 until October
17, 1985. Valley Farm has not been in "existence"
March of 2014, Hegger's physician diagnosed Hegger with
mesothelioma that was caused by asbestos exposure. Hegger
filed his claim for workers' compensation benefits in
March of 2014. Hegger gave a deposition in May of 2015. On
June 17, 2015, Hegger died as a result of complications from
an evidentiary hearing, the ALJ ruled: (1) Hegger's
exposure to asbestos at work was the prevailing factor for
Hegger's diagnosis of mesothelioma; (2) Hegger was last
exposed to the hazards of asbestos working for Valley Farm;
and (3) Claimants did not meet their burden of proving
entitlement to the benefits provided in Section 287.200.4(3)
because Valley Farm was not in existence as of January 1,
2014, and therefore could not elect to accept coverage under
Section 287.200.4(3)(a). The ALJ did not award Claimants any
benefits. The Commission affirmed and incorporated the
ALJ's decision. Claimants appeal.
argue the Commission erred because (1) Valley Farm elected to
accept liability for the benefits provided in Section
287.200.4(3) under strict construction of that subsection,
and (2) Valley Farm was not required to provide the Division
of Workers' Compensation with notice of an election to
accept liability for the benefits provided in Section
Court's standard of review for the Commission's
decision is set forth in Section 287.495.1. On appeal, the
court may modify, reverse, remand for rehearing, or set aside
the Commission's decision only on the following grounds:
(1) the Commission acted without or in excess of its powers;
(2) the award was procured by fraud; (3) the facts found by
the Commission do not support the award; or (4) there was not
sufficient, competent evidence in the record to warrant the
making of the award. Further, if the Commission incorporates
the Administrative Law Judge's decision, we will consider
it as part of the Commission's decision. Maryville
R-II School Dist. v. Pavton, 516 S.W.3d 874, 880 (Mo.
App. W.D. 2017).
appellate court defers to the Commission's findings of
fact, the credibility of witnesses, and the weight given to
conflicting evidence. Malam v. Mo. Dept. of
Corrections, 492 S.W.3d 926, 928 (Mo. banc 2016).
However, decisions involving statutory interpretation are
reviewed de novo. White v. Conagra Packaged Foods.
LLC, 535 S.W.3d 336, 338 (Mo. banc 2017).
well known that mesothelioma is a serious and often fatal
disease. Mesothelioma is a malignant condition attributed to
asbestos exposure. Hagen v. Celotex Corp., 816
S.W.2d 667, 669 (Mo. banc 1991). "Over a period of years
distressing symptoms appeared in persons who had had
substantial exposure to asbestos." Id.
Mesothelioma "is actuated by asbestos fibers which make
their way to the pleural cavity." Id. The
latency period can be thirty years or longer.
Worker's Compensation Law
voters passed the original version of the Missouri
Workers' Compensation Law (Act) in 1926. The passage of
the Act constituted what is referred to as the
"bargain" between employers and employees.
Zueck v. Oppenheimer Gateway Props., Inc., 809
S.W.2d 384, 388 (Mo. banc 1991). The Act "is the product
of a trade-off: the employer forfeits [its] common law
defenses to suits against [it] [the employer] for [its]
employees' injuries and assumes automatic liability; the
employee forfeits [the] right to a potentially lucrative
common law judgment in return for assured compensation."
Id. In 1931, the legislature amended the Act to
provide optional coverage for occupational diseases. Section
287.020 RSMo. (1949). In 1974, the legislature made coverage
for occupational diseases mandatory. Section 287.110.2 RSMo.
(1978). Prior to 2005, Section 287.800 RSMo. (2000) stated
that "[a]ll of the provisions of (the workers'
compensation law) shall be liberally construed with a view to
the public welfare." State ex rel. KCP&L Greater
Mo. Operations Co. v. Cook, 353 S.W.3d 14, 22 (Mo. App.
W.D. 2011). In 2005, the legislature amended Section 287.800
to require strict construction of workers' compensation
law. The legislature also amended Section 287.120.2 RSMo.
Cum. Supp. (2007), removing occupational disease claims from
the workers' compensation exclusivity provisions.
Thereafter, this Court and the Western District held that
under strict construction, occupational diseases were no
longer subject to workers' compensation exclusivity
provisions and a claimant could bring common law claims in
the circuit court. Amesquita v. Gilster-Mary Lee
Corp., 408 S.W.3d 293, 299 (Mo. App. E.D. 2013) (holding
that plaintiffs' injuries were not the result of an
"accident" as that term is defined in section
287.020.2 RSMo. Cum. Supp. (2011), and therefore employees
claiming work-related occupational disease were not limited
to the remedies provided by Chapter 287); Cook. 353
S.W.3d at 30. In 2013, the legislature repealed, enacted, and
amended numerous sections in Chapter 287.
these Sections 287.200, effective January 1, 2014, addresses
occupational diseases due to toxic exposure which results in
permanent and total disability or death. Section 287.200.4
For all claims filed on or after January 1, 2014, for
occupational diseases due to toxic exposure which result in a
permanent total disability, or death, benefits in this
chapter shall be provided as follows:
(1) Notwithstanding any provision of law to the contrary,
such amount as due to the employee during said employee's
life as provided for under this chapter for an award of
permanent total disability and death, except such amount
shall only be paid when benefits under subdivision (2) and
(3) of this subsection have been exhausted;
(2) For occupational disease due to toxic exposure, but not
including mesothelioma, an amount equal to two hundred
percent of the state's average weekly wage as of the date
of diagnosis for one hundred weeks paid by the employer; and
(3) In cases where occupational diseases due to toxic
exposure are diagnosed to be mesothelioma:
(a) For employers that have elected
to accept Mesothelioma liability under this subsection, an
additional amount of three hundred percent of the state's
average weekly wage for two hundred twelve weeks shall be
paid by the employer or group of employers such employer is a
member of. Employers that elect to accept Mesothelioma
liability under this subsection may do so by either insuring
their liability, by qualifying as a self-insurer, or by
becoming a member of a group insurance pool. A group of
employers may enter into an agreement to pool their
liabilities under this subsection. If such group is joined,
individual members shall not be required to qualify as
individual self-insurers. Such group shall comply with
section 287.223. In order for an employer to make such an
election, the employer shall provide the department with
notice of such an election in a manner established by the
department. The provisions of this paragraph shall expire on
December 31, 2038; or
(b) For employers who reject mesothelioma under this
subsection, then the exclusive remedy provisions under
section 287.120 shall not apply to such liability. The
provisions of this paragraph shall expire on December 31,
(4) The provisions of subdivision (2) and paragraph a of
subdivision (3) of this subsection shall not be subject to
suspension of benefits as provided in subsection 3 of this
section; . . .
Missouri Supreme Court considered a constitutional challenge
to Section 287.200.4 in Accident Fund Ins. Co. v.
Casey, 550 S.W.3d 76 (Mo. banc 2018). In that case,
Casey died from mesothelioma caused by repeated exposure to
asbestos at his workplace. Id. at 79. At the time of
Casey's last employment in 1990, the employer was insured
by a "now-defunct" insurance company. Id.
at 78 n.3. However, when Casey filed his claim for benefits
in February of 2015, the employer was covered under an
insurance policy from a different insurer. Id. The
policy included an endorsement stating that the policy
provides insurance benefits for the additional benefits
provided in Section 287.200.4(3). Id.
court first considered whether the insurer was liable for
"[e]nhanced [m]esothelioma [b]enefits." The court
Missouri's workers' compensation law was amended in
2014 to provide enhanced compensation for persons diagnosed
with occupational diseases such as mesothelioma. Section
287.200.4(3). Coverage is provided for "all claims filed
on or after January 1, 2014, for occupational diseases due to
toxic exposure which result in permanent and total disability
or death." Section 287.200.4. Employers may either
accept or reject liability for mesothelioma. If an employer
elects to accept liability, it must insure its "entire
liability" under the [A]ct, which includes accepting all
of the [A]ct's provisions. Section 287.280.1; Allen
v. Renfrey, 237 Mo.App 542, 174 S.W.2d 345, 350 (1943).
In other words, an insurer cannot avoid certain liabilities
by constructing its policy to exclude certain provisions of
the workers' compensation statute and cover only the
provisions it prefers.
Id. at 80.
insurer argued that it could not be held liable because it
did not insure the employer when Mr. Casey was last exposed
to asbestos. Id. Section 287.063.2 is referred to as
the "last exposure rule" and provides that the
"employer liable for [workers' compensation
benefits] shall be the employer in whose employment the
employee was last exposed to the hazard of the occupational
disease." Id. The court stated that the last
exposure rule was immaterial for the case being considered
and the "relevant inquiry in this matter is not under
whose employment Mr. Casey was last exposed, but whether the
terms of Employer's policy provide coverage."
Id. at 81. The court held that "[i]nsurer
provided coverage to Employer by expressly adopting section
287.200.4 into its endorsement." Id.
court next considered the constitutional challenge to Section
287.200. The court concluded that because certain facts, such
as Casey's exposure, were antecedent to the 2014
amendments this did not render Section 287.200.4 an
unconstitutional retrospective law as applied to Casey's
claim. Id. at 81-82. Casey is
distinguishable from the present case but is instructive.
instant case presents an issue of first impression for this
Court. The Commission stated that, "the crux of this
matter is whether the insurer of a long-defunct employer can
be held liable for the new 'enhanced benefits' set
forth in [Section] 287.200.."
their first point, Claimants contend the Commission erred by
denying compensation because Valley Farm elected to accept
liability for the benefits set forth in Section
287.200.4(3)(a). Claimants assert "an election to accept
is itself defined within the strictly ...