Hayden v. Cut-Zaven, Ltd.

Citation614 S.W.3d 44
Decision Date22 September 2020
Docket NumberNo. ED 108695,ED 108695
Parties Joan Moore HAYDEN, Surviving Spouse of Marc Hayden (Deceased), Appellant, v. CUT-ZAVEN, LTD. and Papillion, Ltd., Respondents.
CourtCourt of Appeal of Missouri (US)

FOR APPELLANT: Thomas L. Stewart, 815 Geyer Avenue, St. Louis, Missouri 63104.

FOR RESPONDENT: Michael C. Margherio, 500 North Broadway, Suite 1550, St. Louis, Missouri 63102, Stephen A. McManus, 505 North 7th Street, Suite 2100, St. Louis, Missouri 63101, James B. Kennedy, 211 North Broadway, Suite 2500, St. Louis, Missouri 63102, Jaudon R. Godsey, 500 North Broadway, Suite 1500, St. Louis, Missouri 63102, William E. Paasch, Jr., 1010 Market Street, Suite 1510, St. Louis, Missouri 63101.

Philip M. Hess, Judge

Introduction

Joan Moore Hayden ("Claimant") appeals the Labor and Industrial Relations Commission's (the "Commission") decision affirming and supplementing the decision of the Administrative Law Judge ("ALJ"). Claimant is the surviving spouse of Marc Hayden ("Mr. Hayden"), a former hairdresser who filed a claim seeking workers’ compensation benefits on March 3, 2015. Mr. Hayden's claim alleged he developed mesothelioma because he was exposed to asbestos from using asbestos-containing hair dryers through his employment as a hairdresser. Mr. Hayden died from mesothelioma on April 26, 2016. After Mr. Hayden's death, Claimant was substituted on his claim for compensation. On November 3, 2017, the ALJ denied Claimant compensation after finding Claimant "failed to meet h[er] burden of proof regarding medical causation" and "[Mr. Hayden]’s employment was not the prevailing factor in his development of mesothelioma."

The Commission affirmed the ALJ's decision denying Claimant compensation but supplemented the award with a written opinion. Unlike the ALJ, the Commission found Claimant met her burden of production regarding medical causation by presenting expert medical testimony. Nonetheless, the Commission affirmed the ALJ's decision because it found the expert medical testimony regarding causation presented by Cut-Zaven and Papillion (collectively, "Employers") "more persuasive" than the expert medical testimony regarding causation presented by Claimant. In a footnote, the Commission also determined the "date of injury" for Mr. Hayden's claimed occupational disease was November 2013 because it found "the record ... [showed Mr. Hayden] first suffered the disabling effects of mesothelioma when he suffered a heart attack in November 2013." Thus, the Commission found the 2005 amendments, requiring the Missouri workers’ compensation law be strictly construed, governed Claimant's claim.

On appeal, Claimant argues the Commission erred in affirming the ALJ's award for several reasons. In Point I, Claimant argues the Commission acted without or in excess of its powers because it "failed to conduct its medical causation analysis under the correct legal standard." In Point II, Claimant argues the Commission's award was not supported by sufficient competent evidence. In Point III, Claimant argues the Commission acted without or in excess of its powers because it "applied an inaccurate legal standard for determining [Mr. Hayden's] appropriate ‘date of injury.’ " In Point IV, Claimant argues the Commission's determination of the date of Mr. Hayden's injury was not supported by sufficient competent evidence.

We find the Commission acted without or in excess of its powers by failing to analyze medical causation and Mr. Hayden's date of injury under the proper legal standards. We also find the Commission's award determining medical causation and Mr. Hayden's date of injury is not supported by sufficient competent evidence and is against the weight of the evidence. Accordingly, the Commission's award is reversed and remanded.

Factual and Procedural Background

Mr. Hayden worked as a hairdresser for forty-seven years. Mr. Hayden graduated from beauty school in the late 1960s and worked for several salons, including Employers. Mr. Hayden worked for Cut-Zaven from 1976 until 1979 and Papillion from 1979 until 1982. Mr. Hayden was a self-employed hairdresser from 1983 until 2014.

In November 2013, Mr. Hayden began feeling "little stitches in [his] lungs." Mr. Hayden was hospitalized and given cardiac catherization, which showed two of his three vein grafts were occluded. Mr. Hayden underwent chest x-rays, which revealed no pleural fluid or changes, and was sent home. One month later, Mr. Hayden experienced dyspnea upon exertion. On January 31, 2014, Mr. Hayden underwent a CT scan, which showed a pleural effusion and thickening on his right lung. On February 4, 2014, the pleural effusion on Mr. Hayden's right lung was drained of fluid. Mr. Hayden's condition appeared to improve until the dyspnea returned accompanied by right-sided pleuritic chest pain. On June 3, 2014, a CT scan showed the pleural thickening on Mr. Hayden's right lung had progressed. When Mr. Hayden underwent a thoracoscopy on June 20, 2014, thickened fused pleura was discovered in his right lung and pleural biopsies were performed. Mr. Hayden was diagnosed with malignant mesothelioma on June 26, 2014, and began chemotherapy. Mr. Hayden quit his employment as a hairdresser one month after his diagnosis.

Mr. Hayden filed a claim for workers’ compensation benefits on March 3, 2015, alleging he developed mesothelioma because he was exposed to asbestos from using asbestos-containing hair dryers through his employment as a hairdresser. On April 26, 2016, while his workers’ compensation claim remained pending, Mr. Hayden died of mesothelioma. Following Mr. Hayden's death, Claimant was substituted for Mr. Hayden on his claim for compensation.

On August 15, 2017, a hearing was held before an ALJ. At the hearing, the ALJ considered Mr. Hayden's deposition testimony.1 Mr. Hayden testified he believed the hand-held hair dryers he used while working for Employers exposed him to asbestos. He testified he used these brands of hand-held hair dryers while working for Employers: Conair "Pro Style," Clairol "Son of a Gun," and "General Electric Power Turbo." He testified he believed asbestos was used around the hair dryer coils as a heat-reduction mechanism. Mr. Hayden testified he regularly opened the hair dryers and cleaned the filters if they became dirty until roughly 1979, although Mr. Hayden could not remember which specific models of hair dryers he cleaned.

While working for Employers, Mr. Hayden testified he was responsible for providing his own hair dryers. Mr. Hayden testified he owned two or three hair dryers at a time and replaced them at least twice a year. Mr. Hayden began missing work because of his mesothelioma roughly one month after his diagnosis on June 26, 2014. He admitted no doctor told him his exposure to hair dryers caused his mesothelioma. He also admitted he conducted no tests on hair dryers to determine whether his mesothelioma was caused by asbestos in the hair dryers. Mr. Hayden testified he never performed any home remodeling, construction work, or automobile maintenance in an occupational or non-occupational capacity.

The ALJ also considered the deposition testimony and reports of Dr. Thomas Hyers, a board-certified physician specializing in internal medicine and pulmonology. Dr. Hyers conducted an independent medical examination of Mr. Hayden at Claimant's attorney's request. Dr. Hyers prepared his first report on May 14, 2015. Dr. Hyers reviewed Mr. Hayden's medical records, digital images of x-rays, scholarly articles and documents regarding asbestos emissions from hair dryers provided by Claimant's attorney, and a letter including Mr. Hayden's "exposure history" provided by Claimant's attorney. Dr. Hyers stated one article from 1978 reviewing National Institute for Occupational Safety and Health ("NIOSH") testing "concern[ed] the excess release of asbestos fibers from hair dryers compared to other environmental sources of asbestos fibers." Another article "list[ed] asbestos-containing hair dryers published by the U.S. Consumer Product Safety Commission ["(CPSC")] in 1980." Another study published by the NIOSH and the CPSC in September 1979 concluded "the great majority of hair dryers tested emitted asbestos fibers above background."2

Dr. Hyers stated the "exposure history" provided to him by Claimant's attorney indicated:

[Mr. Hayden] worked as a hair stylist from 1967 to 1979 with several models of hair dryers that contained asbestos insulation linings. Many of the hand-held hair dryers of that time had asbestos insulation linings inside their barrels, and use of the dryers caused asbestos fibers to become airborne. Mr. Hayden would have inhaled these fibers during his work. Asbestos insulation linings were discontinued in hair dryers around 1979.

Based on his review of these materials, Dr. Hyers found Mr. Hayden suffered from malignant mesothelioma of the right pleura because he used asbestos-containing hair dryers at his workplace between 1967 and 1979. Dr. Hyers opined the inhalation of airborne asbestos fibers from the hair dryers Mr. Hayden used at his workplace was the prevailing factor causing Mr. Hayden's mesothelioma. Dr. Hyers concluded Mr. Hayden was completely and permanently disabled by his mesothelioma.

On December 19, 2016, Dr. Hyers prepared a second report at Claimant's attorney's request after receiving Mr. Hayden's death certificate. In that report, Dr. Hyers noted "malignant mesothelioma has a long latency period. That is, the disease is associated with asbestos exposures that usually began 15 years or much longer before the appearance of clinical disease."

On April 4, 2017, Dr. Hyers testified by deposition. Dr. Hyers testified asbestos exposure caused Mr. Hayden's mesothelioma. Dr. Hyers opined Mr. Hayden was exposed to airborne asbestos fibers from the exhaust or affluent from hair...

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