Missouri: Special “Enhanced Benefit” for Worker’s Mesothelioma Does Not Apply Ex Post Facto

A special provision in the Missouri Act that provides for an additional amount of compensation equal to 300 percent of the state’s average weekly wage for 200 weeks if the employer has elected to accept liability for mesothelioma did not apply to the claim of a deceased employee where the employer ceased business in 1984, 16 years before the Missouri Legislature created the benefit, held a state appellate court in a split decision. Claimants had argued that under Mo. Rev. Stat. § 287.200.4(3)(a), employers could elect to accept enhanced mesothelioma liability by “insuring their liability.” The claimants contended that although the special statute had not been enacted at the time the employer ceased operations, its decision to secure full coverage for workers’ compensation claims during the years of its operation qualified as an election. The majority of the court disagreed, stressing that the work “elect” was undefined in the Act, and that its ordinary meaning required some affirmative action. A business could not make an affirmative election 16 years after ceasing operations.

Thomas A. Robinson, J.D., the Feature National Columnist for the LexisNexis Workers’ Compensation eNewsletter, is co-author of Larson’s Workers’ Compensation Law (LexisNexis).

LexisNexis Online Subscribers: Citations below link to Lexis Advance.

See Allen v. Hegger v. Valley Farm Dairy Co., 2020 Mo. LEXIS 55 (Feb. 19, 2020)

See generally Larson’s Workers’ Compensation Law, § 53.05.

Source: Larson’s Workers’ Compensation Law, the nation’s leading authority on workers’ compensation law

For a more detailed discussion of the case, see

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