Missouri has radically changed the comp rules for workers with mesothelioma with a new category of “occupational disease due to toxic exposure.”
What is mesothelioma?
Mesothelioma is a rare and highly aggressive disease related to asbestos exposure. It can be distinguished from lung cancer and asbestosis. CDC reports the three primary types are pleural (cancer of the covering of the lung), peritoneal (cancer of the abdomen) and pericardial (cancer of the lining/surrounding of the heart).
The mortality rate is 80% within two years and 92% within five years.
How much exposure is “too much”?
The Mo comp statute, unlike OSHA, provides no “safe harbor” for permissible exposure limits.
It takes one expert, if believed, to make the case. In Collier v Board of Education of City of St. Louis, 2006 MO WCLR Lexis 134 (lexis.com) 2006 MO WCLR Lexis 134 (Lexis Advance), the only medical evidence in the case was the mesothelioma flows from work “whenever” there was an exposure. Claimant alleged she worked around dilapidated buildings. The employer offered no expert and was ordered to provide treatment.
Some assertions in civil cases are similarly vague of “things” floating in the air. Nugent v Owens Corning, 925 S.W.2d 925 (Mo. App. 1996) (lexis.com) 925 S.W.2d 925 (Mo. App. 1996) (Lexis Advance)
What are potential sources?
Asbestos exposure is a heightened concern for employers operating in older buildings or undergoing renovations. Drill or hammer into a wall built before President Clinton’s term and no one knows what Pandora’s box has been opened. Some asbestos-containing products remain in the market.
Civil cases identify various sources: ceiling tiles, Wagner v Bondex, 368 S.W.3d 340 (Mo. App. 2012) (lexis.com) 368 S.W.3d 340 (Mo. App. 2012) (Lexis Advance) (4.5 million judgment), mechanical room Hoskins v Business Men’s Assurance, 116 S.W.3d 557 (Mo. App. 2003) (lexis.com) 116 S.W.3d 557 (Mo. App. 2003) (Lexis Advance), 79 S.W.3d 901 (Mo. App. 2002) (lexis.com) 79 S.W.3d 901 (Mo. App. 2002) (Lexis Advance); contaminated relatives clothes, Hagan v Celotex, 816 S.W.2d 667 (Mo. 1991) (lexis.com) 816 S.W.2d 667 (Mo. 1991) (Lexis Advance), 1991 Mo App. Lexis 249 (Mo App. 1991) (lexis.com) 1991 Mo App. Lexis 249 (Mo App. 1991) (Lexis Advance); 791 S.W.2d 452 (Mo. App. 1990) (lexis.com) 791 S.W.2d 452 (Mo. App. 1990) (Lexis Advance); Goede v Aerojet, 143 S.W.3d 14 (Mo. App. 2004) (lexis.com) Goede v Aerojet, 143 S.W.3d 14 (Mo. App. 2004) (Lexis Advance).
The occupations most impacted by asbestos exposure are somewhat predictable such as plumbers, carpenters, janitors, farmers and electricians. What is striking is what is also included: managers are listed twice as often on death certificates for meso than plumbers. Teachers have a greater incident rate of contracting meso than electricians or truck drivers.
What does this change mean if you are an employer?Several things are new. The exposure of such cases has gone up. The chance to subrogate any recovery is now gone. The enhanced benefits are due as a lump sum to the estate at the time of death.
These cases are challenging even before reform. An employer must defend a claim with a former employee who typically has been retired a long time, who now has a recent diagnosis of a terminal illness, and the employer must challenge statements about exposures and safety practices that may have occurred 20 or 30 years earlier. In a no-fault comp system an employer pays more for failing to comply with safety procedures.
An employer with the last exposure cannot seek contribution from earlier employers. The last exposure rule in Missouri tags the last employer with the entire liability. In Lute v BGM Industries, 2007 MO WCLR Lexis 181 (lexis.com) 2007 MO WCLR Lexis 181 (Lexis Advance), the claimant worked a total of 29 years performing construction, maintenance and repair but he employer he worked for during the last 6 years was found liable to provide life time medical benefits but failed to establish any disability from pleural plaques which the records indicate might produce mesothelioma. This rule runs contrary to most medical findings that the chance of contacting meso within 10 years of an exposure is virtually impossible.
The new law puts meso cases back in the more limited liability no-fault comp system at least most of time.
The claimant who starts in circuit court stays in circuit court if the employer does not assert timely defenses and prove affirmative defenses of exclusive jurisdiction. McCracken v Wal-mart Stores East, 298 S.W.3d 473 (Mo. 2009) (lexis.com) 298 S.W.3d 473 (Mo. 2009) (Lexis Advance). A claimant does not have an unequivocal right to proceed in circuit court, but an employer who doesn’t use its defenses loses them.
One unintended consequence of the 2005 reform was to eliminate the exclusive remedy defense of asbestos exposure. State ex rel KCP&L Greater Missouri Operations Co., 353 S.W.3d 14 (Mo. App. 2011) (lexis.com) 353 S.W.3d 14 (Mo. App. 2011) (Lexis Advance), applied strict construction and concluded the exclusive remedy did not apply to occupational disease and rejected the employer’s motion for summary judgment whether a claimant could proceed with a meso case in circuit court.
SB1 in 2013 sought to “fix” the 2005 “fix” by putting occupational disease such as asbestos exposure back into worker’s compensation.
The exclusive remedy defense still does not apply unless it is asserted (McCracken); the employer has insurance (287.280) (lexis.com) (287.280) (Lexis Advance) or has elected coverage for mesothelioma. After a “fix” of the 2005 “fix” the world is back to 2004. A claimant can survive an exclusive remedy defense the same way it did back in 2004 by establishing “something more.” The bad employer in a bad case can still face the wrath of a runaway jury.
SB1 creates a separate Missouri Mesothelioma Risk Management Fund to collect premiums and pay awards against members of the fund. The Board is staffed by the director of the department of labor and four members appointed by the governor. (287.223) (lexis.com) (287.223) (Lexis Advance). An employer who does want to join the new state “pool” needs to obtain its own coverage or lose the exclusive remedy defense in comp. Exactly how the Fund operates, what it charges, and liabilities of its participants remains to be clarified.
The Division has now issued new claim forms and form letters advising injured workers of potential occupational diseases they may have incurred and the opportunity to seek additional benefits.
In compensable meso cases, the employer must pay enhanced benefits of 212 weeks at 300% of the state average weekly wage due to toxic exposure diagnosed as mesothelioma and then pay permanent total disability benefits if liability exceeds 212 weeks. 287.200.4(3) (lexis.com) 287.200.4(3) (Lexis Advance). At the current Missouri average weekly wage that represents $516,724.56 as a minimum recovery for disability alone whether the claimant survives or not. Even when there is no family there remains liability to the estate.
In addition, a claimant after Jan 1 2014 also is also eligible for enhanced benefits for other toxic-exposure diseases: asbestosis, beryliosis (metal poisoning) , coal worker’s pneuomoconiosis, bronchiolitis obliterans (associated with over-exposure to noxious chemicals), silicosis, silcotuberculosis, mangaism, acute myelogenous leukemia (a cancer sometimes associated with benzene exposure) myelodysplastic syndrome (bone cancer associated sometimes with radiation or chemical exposure). The enhanced rate and lump sum is lower than in meso.
The new meso law guarantees in compensable cases the equivalent of 12 years of comp benefits to be paid to a claimant who rarely survives more than 2 years. Comp disability benefits conceptually substitutes wage loss or loss of earning capacity. This model does not apply to the meso when a claimant is most often diagnosed after retirement. Comp pays to cure or relieve injured workers but the medical in the meso case is entirely palliative. Traditional therapies have had essentially no improvement in survival rate since the 1970s. Comp awards for safety violations can help change practices, but that never happens when the offending conduct occurred 3 decades earlier.
The rate in Missouri for mesothelioma is below the national average of less than 1 in 100,000. The state clearly intends to enhance awareness to access the comp system and provide financial incentives for more expensive experts to prove a case.
This compensation model of enhanced benefits for the typical meso patient is not about wage loss. In some respects, it is arguably a de facto loss of consortium remedy. It is payback for unintended consequences. Reform has made comp a lot more expensive to fight the bogeyman of runaway juries.
Source: Martin Klug, Huck, Howe & Tobin. Read Martin Klug’s Mo. Workers’ Comp Alerts.
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