Missouri Workers' Compensation Enhanced Benefits for Mesothelioma Victims: Too Crispy or Too Chewy?

• Author: Hambuchen, Grace

Hegger v. Valley Farm Dairy Co., 596 S.W.3d 128 (Mo. 2020) (en banc).

1. INTRODUCTION

   One of the most polarizing debates in history surrounds the best chocolate chip cookie recipe. (1) With all controversial, highly opinionated topics, certain parties, or sides, arise. Some argue the ideal cookie is soft and chewy, while others opt for the crispy and crunchy. However, most dedicated cookie enthusiasts argue the objectively best cookie is a compromise - soft in the middle with a slight crunch on the edges. Baking involves precision. If too much or too little of a simple ingredient is added, the entire cookie changes. The cookie might be "fine," and still edible, but it is not the "best." This compromise involves a delicate procedure of harmonizing components.

   A similar compromise consisting of complicated mechanisms is workers' compensation law. The legislature strives to find the perfect balance between compensating the vulnerable employee for their injuries and protecting employers from financially crippling liability. (2) One particularly susceptible area of the workforce is employees who are diagnosed with mesothelioma where victims see a slim survival rate. (3) Mesothelioma is an aggressive, deadly form of cancer with no cure and few productive treatments. (4) Workers' compensation reform sought to provide enhanced benefits for those victims to compensate for his or her extreme suffering, but also insulate employers from the million-dollar verdicts arising in court. (5) However, this compromise proves only to be "fine," protecting some employees and employers, but it is not the "best." According to a recent Supreme Court of Missouri decision in Hegger v. Valley Farm Dairy Co., the particular language of "elect to accept" in the enhanced benefits provision leaves a certain vulnerable class of employees with shaky compensation and employers with almost no protections. (6)

   Part II of this Note first explores the facts and holding of Hegger. Next, Part III analyzes the legal background surrounding workers' compensation law generally, and dives specifically into the impact of mesothelioma on the law. Then, Part IV discusses the majority opinion and dissenting opinion of the Supreme Court of Missouri on Hegger. Finally, Part V analyzes the impact the present interpretation of the enhanced benefits statute has on workers' compensation law, mesothelioma victims, and employers at risk for mesothelioma litigation. This Note ultimately argues the enhanced mesothelioma statute as it stands is scant, only helping some of those it explicitly sought to protect. The Missouri legislature should not settle with such deficiency considering the gravity of the consequences.

2. FACTS AND HOLDING

   The late Vincent Hegger worked for Valley Farm Dairy Company ("Valley Farm") from 1968 to 1984. (7) Hegger mostly serviced industrial machinery, resulting in exposure to asbestos gaskets, asbestos insulation, and other components emitting inhalable asbestos fibers. (8) In 2014, Hegger's physician diagnosed him with mesothelioma caused by toxic asbestos exposure. (9) Hegger died from the cancer in 2015. (10) Valley Farm retained a workers' compensation insurance policy "covering its entire liability for occupational disease during Hegger's employment" until it ceased operations in 1998. (11) Before his death, Hegger and his two adult children ("the Family") filed a claim for workers' compensation benefits. (12) Specifically, the Family sought enhanced benefits under Section 287.200.4(3)(a) of the Missouri Revised Statutes. (13) This Section reads as follows:

   (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. (14)

   In brief, this Section concerning enhanced benefits allows for mesothelioma victims to recover additional benefits in addition to the benefits recovered under a traditional workers' compensation claim. (15)

   After an evidentiary hearing on the matter, (16) an administrative law judge ruled Hegger's exposure to asbestos during his work at Valley Farm was the reason for Hegger's mesothelioma diagnosis. (17) But the administrative law judge denied the claim regarding the Family's request for enhanced benefits, and the Family appealed the decision. (18) The Labor and Industrial Relations Commission affirmed the denial of the benefits and incorporated the administrative law judge's decision. (19) The Commission held the Family was not entitled to recover the enhanced benefit because "an employer that ceased operations sixteen years before [S]ection 287.4(3)(a) took effect could not have elected to accept enhanced liability under" the statute. (20)

   The Family appealed the case to the Missouri Court of Appeals, Eastern District. (21) The appellate court found for the Family by interpreting the intent of the legislature in its creation of the enhanced benefits statute through a consideration of the plain and ordinary meaning of the statute's terms, and gave effect to said intent. (22) The appellate court interpreted "elect to accept" to be defined as a constraint on the options by which an employer can "elect to accept" mesothelioma liability. (23) Thus, the appellate court held, under the first method, Valley Farm "elected to accept by insuring their liability." (24) In other words, because Valley Farm's insurance policy covered Valley Farm's entire liability, regardless of the length of time, Valley Farm "elected to accept" the enhanced benefits by insuring their liability. (25) Moreover, the appellate court reasoned this interpretation of the enhanced benefits statute gives effect to the intent of the legislature in enacting the statute, which recognized the severity of mesothelioma requiring increased benefits for employees and limiting potential civil liability for employers. (26) This interpretation allows victims like Hegger to recover the enhanced benefits as their exclusive remedy, thus shielding Valley Farm from any civil liability. (27) Valley Farm appealed. (28)

   The Supreme Court of Missouri held the Family was not entitled to the enhanced benefits because Valley Farm could not have affirmatively elected to accept such liability, as required by Section 287.200.4(3)(a), since Valley Farm ceased operations sixteen years before the statute was enacted by the

   legislature. (29)

3. LEGAL BACKGROUND

   Mesothelioma, or malignant mesothelioma, is a cancer of the tissue lining the lungs, stomach, heart, or other organs. (30) It has become one of the most prominent categories of workers' compensation claims. (31) There are approximately 3,000 new mesothelioma diagnoses and about 2,500 mesothelioma-related deaths in the United States each year. (32) Research suggests twenty million people in the United States risk developing mesothelioma at some point in their lives. (33) Typically, the cancer starts in the lungs. (34) Most people diagnosed with mesothelioma worked jobs where they inhaled asbestos particles. (35) After asbestos exposure, the cancer usually develops approximately fifteen to thirty years later. (36) This time gap is known as the latency period. (37) Tragically, mesothelioma is uniformly fatal with a life expectancy of twelve to twenty-one months from diagnosis. (38) The cost of mesothelioma treatment could average between $11,000 to $12,000 per month including chemotherapy, surgery, and radiation. (39)

   One of the more provocative aspects of mesothelioma is the timeline concerning when employers knew of asbestos exposure danger. (40) Case law suggests there was a known risk of exposure to asbestos by the mid-1930s. (41) A retroactive analysis may seem iniquitous, but a flood of asbestos litigation swamping the courts in the 1980s made the dangers to asbestos exposure general knowledge. (42)

   With the serious aforementioned repercussions stemming from asbestos exposure in the workplace, victims sought compensation for their suffering, and employers sought protection from liability to ensure their companies would not drown legally or financially. (43) Originally, in Missouri, an injured employee's only recourse for recovery was through common law tort subject to employer defenses which often undermined employee's claims. (44) Once the Missouri legislature ascertained data suggesting a majority of workers who suffered work-related injuries received no compensation, it enacted a workers' compensation statute in 1925. (45) The purpose of the statute was to "relieve society of the burden of supporting injured workers and their families, and place the cost and expense of production-related injuries on the consumer." (46) As a component of the functioning statute, employers purchase workers' compensation insurance to cover their liability for future employee injuries. (47) In theory, the consumer in the end pays the cost, but in practice, the employer purchases the insurance policy, providing a shield from future tort liability. (48)

   In brief, the legislature struck a bargain. (49) The workers' compensation statute allowed injured employees to recover compensation for their work-related injuries without proving fault and ensured employers protection from future litigation. (50) This protection provides employees an exclusive remedy under workers' compensation. (51) In other words, in most cases, the employee may only recover damages via the workers' compensation legal system. (52)

   In general, an employee files a claim and an administrative law judge, assigned by the Missouri Labor and Industrial...