MO Court of Appeals Releases Decision Addressing Enhanced Remedy Benefits in Toxic Exposure Claims

On May 21, 2019, the MO Court of Appeals, Eastern District, handed down the long-awaited decision addressing enhanced remedy benefits in toxic exposure claims in Hegger v. Valley Farm Dairy Company.

Enhanced Remedy Benefit Section, 287.200.4 RSMo
The Missouri legislature enacted the enhanced remedy benefit section, 287.200.4 RSMo for certain toxic exposure claims on January 1, 2014.This law created additional benefits for claimants exposed to certain toxic substances. One part of the new statute dealt specifically with claimants diagnosed with mesothelioma due to asbestos exposure. This statute would allow employers to come under the exclusive remedy protections of the Workers’ Compensation Act for claims of mesothelioma if the employer elected to accept coverage under the Act. If the employer did not elect to accept coverage under the Act they would be subject to civil liability. The enhanced remedy benefit is 300% of the state average weekly wage for 212 weeks. At present, the enhanced remedy benefit totals $573,996 for mesothelioma claims.

The Court of Appeals held that an employer who was no longer in existence on January 1, 2014, when the law was enacted, could still be liable for enhanced remedy benefits for mesothelioma, reversing the ALJ and Labor and Industrial Relations Commission (LIRC) decisions.

ALJ and Commission Findings
The ALJ and Commission both found:

(1) Claimant’s exposure to asbestos at work was the prevailing factor in his diagnosis of mesothelioma;

(2) Hegger was last exposed to the hazards of asbestos working for Valley Farm; and

(3) Claimant did not meet his burden of proving entitlement to the benefits provided in 287.200.4

because Valley Farm was not in existence as of January 1, 2014, and therefore could not “elect to accept” coverage under section 287.200.4 (3)(a).

Court of Appeals Findings
The Court of Appeals held that the employer, although not in existence on January 1, 2014, did elect to accept coverage for enhanced remedy benefits by insuring their liability when the claimant was last exposed to the hazards of asbestos in 1984.

A dissenting opinion was filed by Judge Odenwald. He found that an employer simply insuring their liability at a point when the claimant last worked for them or when last exposed did not constitute an election to accept enhanced remedy benefits under the Workers’ Compensation Act. Therefore, an employer not in existence as of January 1, 2014 would not be liable for enhanced remedy benefits under the Workers’ Compensation Act because they could not make an election to accept workers compensation coverage for these benefits.

What comes next?
This case was remanded to the LIRC for determination of which insurance carrier was liable.

The question remains as to whether the carrier on the date of last exposure, last date of employment or even last day the employer existed is liable.

This case may be appealed to the MO Supreme Court.

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