On December 19, 2017, the Missouri Court of Appeals Western District transferred Casey v. E.J. Cody Company, Inc., 2017 WL 6453636, to the Missouri Supreme Court after determining there was a real and substantial challenge to the validity of §287.200.4, which provides enhanced benefits in cases of mesothelioma.
In Casey, Employee was exposed to the hazards of asbestos through his work with Employer as a floor tile installer. Twenty-four years after retiring from Employer, Employee was hospitalized and diagnosed with mesothelioma. Subsequently, he filed a workers’ compensation claim against Employer. At hearing, Employee stipulated that he was only seeking benefits under §287.200.4 which became effective January 1, 2014. Employee did not raise the issue of liability for traditional occupational disease benefits. Employer stipulated that it had elected mesothelioma coverage under the statute through its insurance carrier and Insurer provided a policy covering Employee’s date of diagnosis. The ALJ held that the last exposure rule applied to cases brought under §287.200.4 and held the Insurer at the time of Employee’s diagnosis liable for the enhanced benefits of $521,545.44. Employer and Insurer appealed the decision to the Commission, who affirmed the opinion.
On Appeal to the Western District, Employer and Insurer argued that the application of §287.200.4 was unconstitutional and violated the Missouri Constitution’s prohibition against retrospective laws. Additionally, Insurer alleged it could not be liable for benefits under the last exposure rule and Employer challenged the sufficiency of Employee’s evidence.
In its decision, the Court of Appeals determined that because Employer and Insurer argued the legislature had no authority to dictate that §287.200.4 applied to claims where last exposure occurred before 2014, jurisdiction was proper at the Supreme Court. Despite Employee’s arguments that Employer and Insurer failed to preserve their constitutional challenge by not providing the defense in the answer to the claim, the Court held that Employer and Insurer were not required to raise the challenge before the ALJ or Commission since neither had jurisdiction to decide constitutionality. Furthermore, the Court conceded that Employer’s arguments that the statute retroactively eliminated immunity while mandating additional liability, eliminated subrogation, imposed new obligations by increasing amounts of compensation, and extended liability beyond death, rendered the constitutional challenge real and substantial rather than just colorable.
Ultimately, the opinion by the Western District does not alter current law. The Casey Commission decision was not overturned, and until the Supreme Court rules the law remains unclear. However, the Court’s decision to transfer the case to the Supreme Court without deciding the specific issues does signify that they believe the law, as currently written, may present serious constitutional questions. The Court’s decision discussed Employer and Insurer’s arguments at length and made little mention of Employee’s arguments. Presently, the case of Hegger v. Valley Farm Dairy Co., 2017 WL 6501762 (Mo. Lab. Ind. Rel. Com.) is being appealed to the Eastern District Court of Appeals. That case held that an employer who no longer existed at the time of diagnosis could not be liable for enhanced benefits under §287.200.4. It is likely, based on Casey, the Eastern District may also transfer that decision to the Supreme Court. It will also be interesting to see how the Commission continues to enforce §287.200.4 as it prepares to take on the appeal of Marc Hayden v. Cut Zaven Ltd., and Papillion Ltd., Injury No.: 14-103077, which is the first case that requires the application of both the enhanced benefit and traditional benefits to a case of occupational disease due to toxic exposure diagnosed to be mesothelioma
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