On April 4, 2016 ALJ Mark Siedlik of the Kansas City Office
of the Division of Workers’ Compensation issued an Award in Casey v. E. J. Cody Co, (Inj. No. 14-102671).
This is, we believe, the first “occupational disease due to toxic exposure”
case which has been decided under the amendments which became effective on
January 1, 2014.
The salient facts are:
employee was a career-long floor tile installer.
retired in 1990 and the named employer was his last employer.
was diagnosed with mesothelioma in 2014 and died of the disease in 2015.
“last exposure” was predicated upon his being exposed to asbestos containing
material which was still on the customers’ premises when he arrived to install
new floor tile (which by then no longer contained asbestos).
insured employer had accepted mesothelioma liability by virtue of a
mesothelioma endorsement which was added to the policy which was in effect on
the date of diagnosis
claimants (wife and children) were only seeking the “enhanced benefit”, under
Sec. 287.200.4, for permanent total disability or death due to mesothelioma.
were fact driven disputes over exposure, medical causation, whether the
employee contracted an occupational disease arising out of and in the course of
his employment, and notice.
were legal disputes over whether the new amendments applied to a claim
involving employment and exposure that ended in 1990, whether the mesothelioma
policy endorsement provided coverage for the mesothelioma benefit which was
being sought in this case, and whether the application of the amendments to
these facts violated the Missouri and/or U. S. Constitutions.
The ALJ found:
employee contracted mesothelioma, an occupational disease which arose out of
and in the course of his employment.
employee was last exposed to the hazard of mesothelioma during his employment
by the named employer.
employer had notice of the occupational disease or was not prejudiced by any
lack of notice.
2014 amendments fix an employer’s (and insurer’s) liability on the date of
mesothelioma endorsement on its face provides coverage for the mesothelioma
benefits when it refers to Sec. 287.200.4 and then states that: “Your policy provides
insurance for these additional benefits”.
policy contains a provision which states that if any policy terms conflict with
the workers’ compensation law that the policy terms are changed to conform to
policy provision which states that in the case of an injury caused or
aggravated by an exposure, that the
exposure must occur during the policy period, is trumped by the endorsement,
and even if an ambiguity in the policy provisions exist, that the ambiguity
must be, under the law, resolved in favor of coverage.
ALJ lacked jurisdiction to adjudicate the constitutionality of a Missouri
Award will be appealed.
the 10 “occupational diseases due to toxic exposure”, only mesothelioma
requires acceptance or rejection of liability by the employer and the inclusion
of a corresponding policy endorsement.
date of diagnosis in this case was after January 1, 2014, but what about claims
where the date of diagnosis was prior to January 1, 2014?
what if all salient events, accept for the filing of the Claim, predated the
effective date of the amendments?
if this employer had been an individual self-insurer or the member of a
case is only the “first shot across the bow” in the coming battle over the 2014
occupational disease amendments.
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Copyright: Evans & Dixon, L.L.C., 2016