Hegger v. Valley Farm Dairy Co.

• Decision Date: 19 February 2020
• Docket Number: No. SC 97993,SC 97993
• Citation: 596 S.W.3d 128
• Parties: Vincent HEGGER (Deceased), et al., Appellants, v. VALLEY FARM DAIRY COMPANY, et al., Respondents.
• Court: Missouri Supreme Court

596 S.W.3d 128

Vincent HEGGER (Deceased), et al., Appellants,

v.VALLEY FARM DAIRY COMPANY, et al., Respondents.

No. SC 97993

Supreme Court of Missouri, en banc.

Opinion issued February 19, 2020

The claimants were represented by Thomas L. Stewart, Adam J. Reynolds and Andrea A. O’Brien of O’Brien Law Firm PC in St. Louis, (314) 588-0558.

Valley Farm was represented by Christopher T. Archer of Archer & Lassa LLC in St. Louis, (314) 241-2481.

Amerisure Insurance Company was represented by T. Michael Ward and Elaine M. Moss of Brown & James PC in St. Louis, (314) 421-3400; and Travelers Indemnity Company of America was represented by Jaudon R. Godsey of Morrow, Willnauer, Church LLC in St. Louis, (314) 282-9800.

W. Brent Powell, Judge

The children of deceased employee Vincent Hegger (Claimants) appeal from a decision of the labor and industrial relations commission denying their claim for enhanced mesothelioma

benefits under section 287.200.4(3)(a) of the workers’ compensation law.¹ Because Valley Farm did not "elect to accept mesothelioma liability," Claimants are not entitled to the enhanced benefit. The commission’s decision is affirmed.

Background

Vincent Hegger worked for Valley Farm Dairy Company from 1968 until 1984. Valley Farm maintained a workers’ compensation insurance policy covering its entire liability for occupational disease during Hegger’s employment. Valley Farm ceased operations in 1998.

Hegger’s employment with Valley Farm consisted mainly of servicing industrial machinery. This work exposed him to asbestos gaskets, asbestos insulation, and other products capable of producing inhalable asbestos fibers. Hegger was diagnosed in 2014 with mesothelioma

caused by toxic exposure to asbestos during his employment with Valley Farm. He died from the disease in 2015.

Prior to his death, Hegger and his two adult children filed a claim for workers’ compensation benefits. Section 287.200.4(1) provides:

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 subdivisions (2) and (3) of this subsection have been exhausted[.]

In accordance with subdivision 287.200.4(1), Claimants specifically sought enhanced benefits under subdivision 287.200.4(3)(a) of "an additional amount of three hundred percent of the state’s average weekly wage for two hundred twelve weeks."² Following a hearing, an administrative law judge denied the claim. Claimants appealed to the labor and industrial relations commission, which affirmed the denial of benefits. The commission held an employer that ceased operations 16 years before section 287.200.4(3)(a) took effect could not have elected to accept enhanced liability under that section and Claimants, therefore, were not entitled to recover the enhanced benefit. Claimants appealed the commission’s decision to the court of appeals. This Court granted transfer after opinion by the court of appeals pursuant to Rule 83.04.³

Standard of Review

This Court reviews the commission’s decision to determine whether it is "supported by competent and substantial evidence upon the whole record." Mo. Const. art. V, § 18. "A decision of the Commission will be disturbed only if (1) the [c]ommission acted without authority or in excess of its authority; (2) the award was procured by fraud; (3) the facts do not support the award; or (4) there was not sufficient, competent evidence to justify the award." Accident Fund Ins. Co. v. Casey , 550 S.W.3d 76, 79 (Mo. banc 2018) ; § 287.495.1(1)-(4), RSMo 2000. The interpretation of the workers’ compensation law is a question of law that is reviewed de novo. Dickemann v. Costco Wholesale Corp. , 550 S.W.3d 65, 67 (Mo. banc 2018).

Analysis

When applicable, Missouri’s workers’ compensation law provides the exclusive remedy by which injured workers may seek to recover benefits for injuries caused by accidents suffered in the course of their employment. § 287.120.2. Prior to 2014, there was confusion among the courts over whether the exclusivity provisions of the workers’ compensation law also applied to occupational diseases. Compare State ex rel. KCP&L Greater Mo. Operations Co. v. Cook , 353 S.W.3d 14, 18-19 (Mo. App. 2011) (holding the exclusivity provisions were limited to injuries or death caused by an "accident" and occupational diseases do not arise out of an "accident"), with Peters v. Treasurer of Mo. , 404 S.W.3d 322, 327 (Mo. App. 2012) (holding the term "injury" in the Act encompassed occupational diseases).

The general assembly amended the workers’ compensation law in 2013 to provide the exclusive remedy for occupational diseases caused by toxic exposure in the workplace in some instances. § 287.200.4(3)(b). The amended statute provides:

(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-insures. Such group shall comply with section 287.233. 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.

§ 287.200.4(3)(a) (emphasis added). Employers that elect to accept enhanced liability under this subsection are not subject to civil liability for occupational disease caused by toxic exposure. See § 287.120.2. But if an employer does not elect to accept enhanced mesothelioma

liability, "then the exclusive remedy provisions under section 287.120 shall not apply to such liability." § 287.200.4(3)(b).

A. Valley Farm could not elect to accept enhanced liability

This case requires the Court to determine whether a now-defunct employer can "elect to accept mesothelioma

liability" under a statute that did not take effect until 16 years after the company ceased operations. Claimants argue the commission erred in determining Valley Farm did not elect to accept liability for the enhanced benefit. Claimants point to section 287.200.4(3)(a), which provides an employer may elect to accept enhanced mesothelioma liability by "insuring their liability." Claimants and the dissenting opinion argue that, because Valley Farm maintained an insurance policy that insured its entire workers’ compensation liability during the time it employed Hegger, then Valley Farm elected to accept mesothelioma liability under the plain language of the statute. The commission rejected this argument, finding that electing to accept enhanced liability under section 287.200.4(3)(a) requires employers to take affirmative action with respect to the enhanced benefit and that simply maintaining a workers’ compensation insurance policy, which was secured prior to 2014 and did not contemplate coverage for the enhanced benefit, was insufficient. Claimants and the dissenting opinion contend the commission erred in this respect, arguing the plain language of the statute allows recovery of the enhanced benefit so long as the employer at the time of last exposure⁴ simply maintained an insurance policy that insured the company’s entire liability for occupational disease.

The commission did not err in finding that electing to accept enhanced mesothelioma

liability under section 287.200.4(3)(a) requires an affirmative act by the employer. The term "elect" is the operative verb in section 287.200.4(3)(a), but it is not defined in the workers’ compensation law.⁵ When a term is not defined by statute, this Court will give the term its "plain and ordinary meaning as derived from the dictionary." Mo. Pub. Serv. Comm'n v. Union Elec. Co. , 552 S.W.3d 532, 541 (Mo. banc 2018).

The dictionary defines the term "elect" to mean "to make a selection" or "to choose." Webster’s New Int'l Dictionary 731 (3d ed. 2002). Both selecting and choosing require an affirmative act by the one making the selection or doing the choosing. Giving these definitions their plain and ordinary meaning in the context of section 287.200.4(3)(a) indicates the legislature intended to require employers to take some affirmative action with respect to the enhanced benefits to accept enhanced mesothelioma

liability. It is axiomatic that a business entity that no longer exists cannot affirmatively select or choose to do anything. Because Valley Farm ceased operations in 1998, and the enhanced benefit did not exist until 2014, Valley Farm could not affirmatively elect to accept liability for the enhanced benefit under section 287.200.4(3)(a).

B. Casey does not support Claimants’ position

Claimants point to this Court’s decision in Casey in support of their position. In Casey , employee Casey worked for a construction contractor from 1984 to 1990. 550 S.W.3d at 78. This work exposed Casey to asbestos in various forms. Id. Casey was diagnosed with mesothelioma

in 2014 and eventually died from the disease. Id. at 79. Before his death, Casey filed a claim for workers’ compensation benefits against his last employer. Id. That employer was still in business when Casey filed...