McGhee v. WR Grace & Co.

• Court: Missouri Court of Appeals
• Writing for the Court: DON E. BURRELL
• Citation: McGhee v. W.R. Grace & Co., 312 S.W.3d 447 (Mo. App. 2010)
• Decision Date: 28 May 2010
• Docket Number: No. SD 30060,SD 30065.,SD 30060
• Parties: David G. McGHEE, Employee-Appellant/Respondent, v. W.R. GRACE & CO., Employer-Respondent/Cross-Appellant.

312 S.W.3d 447

David G. McGHEE, Employee-Appellant/Respondent, v. W.R. GRACE & CO., Employer-Respondent/Cross-Appellant.

Nos. SD 30060, SD 30065.

Missouri Court of Appeals, Southern District, Division One.

May 28, 2010.

COPYRIGHT MATERIAL OMITTED

R. David Ray, West Plains, MO, for Appellant.

Jennifer Arnett, Overland Park, KS, for Respondent.

DON E. BURRELL, Judge.

Appellant/Respondent David McGhee ("Claimant") contracted asbestosis after years of working for Respondent/Cross-Appellant W.R. Grace & Company ("Employer") in a plant that manufactured home insulation containing asbestos. The parties stipulated that Claimant had sustained an occupational disease that arose out of and in the course of his employment which rendered him permanently and totally disabled. The claim was tried on the issue of the amount of benefits to be awarded before an Administrative Law Judge ("ALJ"). The ALJ's decision was thereafter affirmed and adopted by the Labor and Industrial Relations Commission ("the Commission"). Both parties now appeal the Commission's decision to this court, and we have consolidated their separate appeals. Agreeing with the arguments asserted by Claimant, we affirm in part and reverse in part with instructions.

Factual and Procedural Background

Claimant began working at Employer's Zonolite Plant in St. Louis in 1964. Employer and Claimant agree that Claimant's average weekly wage at the time he ceased working for Employer in 1977 was $242.87. The work Claimant performed for Employer included the bagging of various materials, including Monokote (a fireproofing product) and vermiculite (a mineral used in attic insulation). The vermiculite Claimant was bagging contained asbestos. Claimant's exposure to this asbestos eventually caused him to contract asbestosis, a disease marked by the inflammation and scarring of lung tissue, caused by the breathing of asbestos fibers and the body's inability to expel those fibers.

Claimant testified that during the first six or seven years of his employment with Employer, he was not provided with any safety equipment or protective clothing. Claimant testified that in about 1972 or 1973, Employer began providing him with throwaway paper masks. When Employer began receiving complaints from its employees about these paper masks, it began providing a different type of mask. Employer presented no evidence in regard to its provision of safety equipment or protective clothing.

Claimant's asbestosis was first diagnosed in 2001. Claimant sought weekly wage benefits based on the average weekly wage statute in effect in 2001. Claimant also sought past and future medical benefits and included a claim for a statutory 15% penalty based on Employer's failure to provide safety equipment as required by law during his course of employment.

The ALJ applied the $95.00 cap on weekly wage benefits in effect in 1977— the year Claimant was last exposed to asbestos—to Claimant's weekly wage benefits claim. The ALJ awarded Claimant past and future medical benefits and also included a 15% penalty on all benefits awarded, including medical benefits. In their respective appeals of the ALJ's decision to the Commission, Claimant contested the ALJ's application of the 1977 weekly benefits cap, and Employer contested the imposition of the 15% statutory penalty. While Employer did not contest the ALJ's award of medical expenses, it did dispute the validity of including those expenses in the calculation of the 15% penalty. The Commission, with one commissioner dissenting, affirmed the ALJ's decision and incorporated her findings.

Analysis

Standard of Review

Our review of the Commission's decision is governed by article V, section 18 of the Missouri Constitution and by section 287.495.¹ "The court, on appeal, shall review only questions of law and may modify, reverse, remand for rehearing, or set aside the award upon any of the following grounds and no other:

(1) That the commission acted without or in excess of its powers;

(2) That the award was procured by fraud;

(3) That the facts found by the commission do not support the award;

(4) That there was not sufficient competent evidence in the record to warrant the making of the award.

Section 287.495.1. "There is nothing in the constitution or section 287.495.1 that requires a reviewing court to view the evidence and all reasonable inferences drawn therefrom in the light most favorable to the award." Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 223 (Mo. banc 2003). "We defer to the Commission on issues of fact." Copeland v. Associated Wholesale Grocers, 207 S.W.3d 189, 191 (Mo.App. S.D.2006). However, "questions of law are reviewed de novo." Id. "When the commission incorporates the ALJ's opinion and decision, as in this case, the reviewing court will consider the commission's decision as including those of the Administrative Law Judge." Id. at 193 n. 5 (citing Clark v. FAG Bearings Corp., 134 S.W.3d 730, 734 (Mo.App. S.D.2004)).

Claimant's Point² on Appeal (SD30060): Date of Injury

Claimant argues the Commission erred in applying the cap in effect in 1977 to his claim for weekly wage benefits because section 287.200 provides that compensation is calculated as of the "date of the injury for which compensation is being made" and that that date for Claimant was in 2001—the date when he was first diagnosed with asbestosis, not (as found by the Commission) the date of his last exposure to asbestos. We agree.

The resolution of this case involves the interpretation of workers' compensation statutes and their application to Claimant's claim. "Decisions which are clearly interpretations or applications of law, rather than determinations of fact, are reviewed by us for correctness without deference to the Commission's judgment. `Findings of ultimate facts reached through application of rules of law, rather than by natural reasoning based on facts alone, are conclusions of law' which are reviewable for misstatement or misapplication." Sanders v. St. Clair Corp., 943 S.W.2d 12, 16 (Mo.App. S.D.1997) (citing and quoting Simmerly v. Bailey Corp., 890 S.W.2d 12, 14 (Mo.App. S.D.1994)).

Claimant's claim for weekly wage benefits was brought pursuant to section 287.200, which, in pertinent part, states:

1. Compensation for permanent total disability shall be paid during the continuance of such disability for the lifetime of the employee at the weekly rate of compensation in effect under this subsection on the date of the injury for which compensation is being made. The amount of such compensation shall be computed as follows:

....

(4) For all injuries occurring on or after August 28, 1991, the weekly compensation shall be an amount equal to sixty-six and two-thirds percent of the injured employee's average weekly earnings as of the date of the injury; provided that the weekly compensation paid under this subdivision shall not exceed an amount equal to one hundred five percent of the state average weekly wage.

Section 287.200.1. As previously indicated, the parties stipulated that Claimant's last weekly wage while working for Employer was $242.87. If the date of Claimant's "injury" was when he was diagnosed with asbestosis in 2001, his weekly benefit under the law in effect at that time would be two-thirds of that amount, or $161.91 per week. If, on the other hand, his date of injury was the date of his last exposure to asbestos, when Claimant ceased working for Employer in 1977, the parties stipulate that his wage compensation would be capped at $95.00 per week pursuant to the version of the statute in effect at that time.

In reaching her decision that the date of Claimant's injury for purposes of section 287.200 was 1977, the ALJ relied on Enyard v. Consolidated Underwriters, 390 S.W.2d 417 (Mo.App. St.L.D.1965). Although the ALJ noted that "the issue of the wage rate was not truly in dispute in Enyard," she relied on Professor Larson's interpretation of Enyard as set forth in his treatise on workers' compensation occupational disease cases. That treatise purports to answer the question before this court as follows:

The question of which benefit level applies is encountered in its most acute form in long-latency occupational disease cases. If a worker's last injurious exposure was in 1965 and his disability appeared in 1995, the choice between date of exposure and date of disability might well mean the difference between $50 and $350 a week.

The majority rule, as a result of either judicial decision or statutory provision, is that the level at the time of exposure does not control; rather, the time of disability, knowledge, or manifestation is decisive.

In a substantial minority of states, however, again by either statute or decision, the `last exposure benefit rule' is still in force. Several states in this group have softened the impact of the rule somewhat. In Maine and Minnesota, supplemental benefits are provided which approximately close the gap between current benefits and time-of-exposure benefits.

2-53 Arthur L. Larson & Lex Larson, Larson's Workers' Compensation, § 53.051 (Desk Edition 2007). Larson's treatise then includes Missouri within the minority of states he says follow the "last exposure benefit rule," citing Enyard. We believe Professor Larson has oversimplified the actual holding in Enyard.

In Enyard, 390 S.W.2d at 419, the claimant had worked for a steel company from 1936 to 1943 and became disabled with advanced silicosis in 1960, thereafter filing a claim for workmen's compensation. Id. When faced with the question of whether the claim was filed within the applicable statute of limitations period, the court held:

In latent injury or latent occupational disease the statute of limitations commences to run from the time it becomes reasonably discoverable and apparent to the employee that he has sustained a compensable injury. The injury is reasonably discoverable and apparent when the employee loses time from his work

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