Articles & Updates


by James B. Kennedy

Those who handle mesothelioma defense under the 2013 WC amendments were, earlier in the year, encouraged, and relieved, with the outcome in Hegger v. Valley Farm Dairy. In Hegger, after the Court of Appeals reversed a denial of liability issued at the Division and Commission levels, the Supreme Court reinstated the denial. The Supreme Court held that the enhanced benefit for mesothelioma could not be forced upon the historical insurer, the insurer on the risk on the date of the last exposure to asbestos, in circumstances where the employer had gone out of business before 01/01/2014, the date that the 2013 occupational disease amendments became effective. The Supreme Court ruled that an employer which no longer existed on 01/01/2014 could not have opted to reject mesothelioma liability, or accept that liability through the addition of a mesothelioma endorsement to their WC policy, or via self-insurance. But behind Hegger, another mesothelioma case in which compensation was denied was working its way through the appellate process – Hayden v. The Cut-Zaven and Papillion, LTD. However, as of 09/22/202, Hegger is no longer a victory for the defense since the Court of Appeals reversed the earlier denials of compensation.

Hayden was a career hairdresser who claimed that he contracted mesothelioma as the result of exposure to the asbestos found in many hand-held hairdryers. He testified at a deposition before his death to having no other history of asbestos exposure. The evidence established that into the late 1970’s some, but not all, hairdryers contained asbestos as an insulator or in decorative features. Hayden had testified that he often cleaned the dryers he used but couldn’t tell whether they contained asbestos. Asbestos containing dryers were being removed from the market at a about the time that Hayden left Cut-Zaven in 1979 to go to Papillion.

The claimant’s expert testified that since: 1) asbestos exposure was by far the most likely and most recognized cause of mesothelioma; 2) some of the hairdryers Hayden used contained asbestos; 3) and, there was no other known exposure to asbestos, that the exposure to asbestos at work was the prevailing factor in causing Hayden’s mesothelioma. However, the defense expert testified that due t 1) the lack of a known connection between the use of hairdryers and mesothelioma; 2) the lack of any mention of asbestos exposure on the Death Certificate: 3) the lack of any lab studies showing the presence of asbestos fibers in Hayden’s lungs; and, 4) the absence of relevant epidemiological studies, that asbestos exposure was not the prevailing factor in causing the employee’s disease, although he had admitted that Hayden was exposed to some asbestos during his career as a hair stylist. The Administrative Law Judge and the Commission favored the testimony of the defense expert and denied compensation in turn.

The Court of Appeals reversed the denial of compensation, holding that the Commission’s reliance on the defense expert’s testimony subjected the claimant to a heavier burden of proof than that which has been determined to be the correct burden of proof in an occupational disease case. The Court cited several cases which speak to the burden of proof issue, but none involved the 2013 amendments and two involved exposure to contagious or communicable diseases, which the defense argued were cases subject to separate proof requirements than the requirements applicable to a mesothelioma case.

Under the law, the Commission is the final trier of fact, including judging the credibility of both lay and expert witnesses. However, in Hegger the Court determined that: 1) the Commission’s credibility determinations favoring the defendants’ expert were not supported by sufficient competent evidence; 2) the Commission failed to analyze the causation issue using the proper legal standards; 3) and, when the medical causation issue is analyzed under the correct standards, that the claimant met her burdens of production and persuasion. Thus, the Court reversed the denial of benefits and remanded the case to the Commission, directing the Commission to decide the remaining issues, which include the date of last exposure and the liable employer and insurers.

Note: The decision in Hayden is not final since motions for rehearing or transfer may yet be filed.


It is very uncommon for an appellate court to overrule the Commission’s credibility determinations. That the Court did so, is one complaint which the defense may have with the decision. In addition, many feel that the passage of the 2013 amendments requires a fresh examination of the burden of proof to apply in claims involving one the “occupational diseases due to toxic exposure”. In, Hayden, the Court of Appeals applied existing law, including relying on two cases which involved a contagious or communicable disease. The defense argued that the subsection which deals with the compensability of such diseases, Sec. 287.067.7, contains in effect, a presumption of compensability, a presumption absent from Sec. 287.200.4, the subsection which covers the newly designated occupational diseases. But one thing which we have learned thus far is that the 2013 amendments have been, and will continue to be, major litigation generators, for good, or bad.

Copyright Evans @ Dixon, LLC 2020


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