Facts: In Haden v. The Cut-Zaven, decided on 01/08/2020, the facts are as follows:
Marc Hayden (Dec’d) was a hairdresser who was employed by The Cut Zaven, Inc. between 1976 and 1979, Papillion between 1979 and 1982, and was self-employed thereafter. Employee was diagnosed with mesothelioma on 06/26/2014 and died from the disease on 04/26/2016. The claimant, his spouse, alleged Hayden was exposed to asbestos from using hairdryers throughout his employment as a hairdresser. The defendants were comprised of the two employers, three insurers, and a forth insurer which was joined, while the appeal was pending, due to the Supreme Court’s holdings in Accident Fund v. Casey.
The Administrative Law Judge denied the claim, concluding claimant had not established that Hayden’s employment was the prevailing factor in causing his mesothelioma. The Commission affirmed the ALJ’s award denying compensation. However, in reaching this result, the Commission engaged in an analysis which will have an effect not only on future mesothelioma and other “toxic exposure occupational disease” cases, but on occupational disease claims generally.
Commission’s Analysis: The Commission focused on the difference between a claimant’s burden of production versus a claimant’s burden of persuasion. The Commission relied on the holdings in Vickers v. MO Dep’t of Pub. Safety and Smith v. Capital Region Med. Ctr. to emphasize that in occupational disease claims, a claimant does not have to introduce evidence of a specific or actual exposure to an injurious agent at work to meet their burden of production but only have to establish that there was the probability that working conditions caused the disease. Furthermore, a single medical expert’s opinion supporting causation is sufficient to satisfy the burden of production.
To further their point, the Commission rejected certain of the ALJ’s finding in her award. For instance, in support of her denial, the ALJ found that because the claimant could not be certain the hairdryers he was using were the models containing asbestos, there was no substantial and competent evidence of exposure. However, the Commission concluded claimant did not need to prove that the employee experienced actual or specific exposure to the asbestos-containing hairdryers. Furthermore, the Commission found claimant did satisfy her burden of production through the claimant’s expert’s medical opinion on causation.
However, as to the claimants’ burden of persuasion, the Commission concluded that the defendants’ medical expert’s opinion was more credible than that of the claimant’s expert. The defense expert relied on the lack of a recognizable link between the use of hairdryers and mesothelioma, and the fact that there are other causes of mesothelioma beside asbestos exposure, to arrive at his conclusion that Hayden’s work was not the prevailing factor in causing his mesothelioma.
Comments: In reaching their conclusion, the Commission had to deal with the holdings in Vickers and Smith, both infectious disease cases, perhaps not the best precedents for a cases involving exposure to chemicals or irritants, where some threshold of exposure is needed to create the hazard of the disease, even in mesothelioma cases.
Interestingly, in the Commission’s Footnote 3, they state that since the employee’s first date of disability was when he suffered a heart attack in 2013, that the 2005 amendments apply to the case, not the 2013 amendments, and even though the date of diagnosis of mesothelioma was in 2014. And then in Footnote 5, the Commission observed that from a logical viewpoint, it is hard to understand how the prevailing factor standard can be met without identifying, with some degree of specificity, the actual injurious exposure.
The Commission’s Award will very likely be appealed to the Court of Appeals.
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Copyright: Evans & Dixon, L.L.C., 2020