Issued by THE LABOR AND INDUSTRIAL RELATIONS...

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

Employee:

Employers:

Insurer:

FINAL AWARD ALLOWING COMPENSATION (Affirming Award and Decision of Administrative Law Judge)

Michael Landis, deceased

St. Luke's Hospital Children's Mercy Hospital Truman Medical Center

Self-Insured

Injury No.: 17-098196

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by§ 287.480 RSMo. Having reviewed the evidence and considered the whole record, the Commission finds that the award of the administrative law judge is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to § 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated October 10, 2019. The award and decision of Administrative Law Judge, Kenneth J. Cain, issued October 10, 2019, is attached and incorporated by this reference.

The Commission further approves and affirms the administrative law judge's allowance of attorney's fee herein as being fair and reasonable.

Any past due compensation shall bear interest as provided by law.

Given at Jefferson City, State of Missouri, this _ _,l_..fo,,_,tc.L./2,___ day of April 2020.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

Robert W. Cornejo, Chairman

(R~ ~ Reid K. Forrester, Member

NOT SITTING Shalonn K. Curls, Member

Attest:

~~~~ Secretary

Issued by: DIVISION OF WORKERS' COMPENSATION

Employee: Michael Landis

FINAL AWARD Employee: Michael Landis

Dependents: NIA

Injury No. 17-098196

Injury No. 17-098196

Employers: St. Luke's Hospital; Children's Mercy Hospital; Truman Medical Center

Insurers: Self-Insured

Additional Party: NI A

Hearing Date: August 27, 2019 Briefs filed on September 27, 20191

Checked by: KJCldrl

FINDINGS OF FACT AND RULINGS OF LAW

I. Are any benefits awarded herein? Yes.

2. Was the injuiy or occupational disease compensable under Chapter 287? Yes.

3. Was there an accident or incident of occupational disease under the Law? Yes.

4. Date of accident or onset of occupational disease: November 8, 2017.

5. State location where accident occurred or occupational disease occurred: Kansas City, Jackson County, Missouri.

6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes.

7. Did employer receive proper notice? Yes.

8. Did accident or occupational disease arise out of and in the course of the employment? Yes.

9. Was claim for compensation filed within time required by Law? Yes.

IO. Was employer insured by above insurer? Each of the employers were self-insured.

11. Describe work employee was doing and how accident occurred or occupational disease contracted: The evidence showed that the deceased employee, while in the course and scope of his employment as an operating engineer was exposed to asbestos on his jobs at the Kansas City Star, Saint Luke's Hospital and Children's Mercy Hospital in that order. The deceased employee developed mesothelioma of his right lung and died ofit. Children's Mercy Hospital is liable for the enhanced benefits and medical treatment based on the last exposure rule.

12. Did accident or occupational disease cause death? Yes. Date of death? June 5, 2018.

1 Truman Medical Center elected not to file a brief in the case.

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Issued by: DIVISION OF WORKERS' COMPENSA TJON

Employee: Michael Landis Injury No. 17-098196

13. Paii(s) of body injured by accident or occupational disease: Right lung and body as a whole.

14. Nature and extent of any permanent disability: Death

15. Compensation paid to date for temporary disability: None.

16. Value necessaty medical aid paid to date by employer/insurer: None.

17. Value necessary medical aid not furnished by employer/insurer: See additional findings of fact and rulings oflaw.

18. Employee's average weekly wages: NIA to claim only for enhanced benefits.

19. Weekly compensation rate: For enhanced benefits $2,637.18.

20. Method wages computation: Section 287.200.4 RSMo. 2014.

COMPENSATION PAY ABLE

21. Amount of compensation payable:

Unpaid medical expenses: $225,833.66. Weeks for pennanent patiial disability: NI A. Weeks for temporaty total (temporary patiial disability): NIA. Weeks for permanent total disability: NI A. Weeks for disfigurement: NIA. Weeks for enhanced benefits: 212 weeks@2,637.18 per week= $559,082.16. Burial Allowance: $5,000.00

TOTAL: $789,915.82

23. Future requirements awarded: None

Said payments to begin as of date of the award and to be payable and be subject to modification and review as provided by law.

The compensation awarded to the Claimant shall be subject to a lien in the amount of 25 percent of all payments hereunder in favor of the following attorney for necessary legal services rendered to the Claimant: O'Brien Law Firm.

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FINDINGS OF FACT and RULINGS OF LAW

Employee: Michael Landis InjuryNo. 17-098196

Dependents: NIA

Employers: St. Luke's Hospital; Children's Mercy Hospital; Truman Medical Center

Insurers: Self-Insured

Additional Party: N/ A

Hearing Date: August 27, 2019 Briefs filed on September 27, 20192

Checked by: KJC/drl

Mr. Michael Landis, the deceased employee, died on June 5, 2018 of mesothelioma of the right lung. He stated in his claim for compensation that he had two children: Christopher Allen Landis and Michael John Landis, Jr. Christopher Landis, however, filed an affidavit dated June 20, 2018 in which he stated that he was the only remaining son of Michael Landis, the deceased employee. Christopher was also substituted as the patty in interest in the case after Mr. Landis' death.

Prior to the hearing, the parties entered into various admissions and stipulations. The remaining issues were as follows:

1. Whether Mr. Michael Landis, the deceased employee, sustained an occupational disease arising out of and in the course and scope of his employment with St. Luke's Hospital, Children's Mercy Hospital, or Truman Medical Center or with a prior employer, the Kansas City Stat·;

2. Whether the deceased employee provided timely notice of his alleged occupational disease to St. Luke's Hospital, Children's Mercy Hospital, or Ttuman Medical Center;

3. Whether Mr. Landis filed a claim for compensation on a timely basis as to each of the employers;

4. The compensation rate for enhanced benefits under § 287,200.4 RSMo. 2005 and as amended effective with Jatmary 1, 20 I 4;

5. Liability of St. Luke's Hospital, Children's Mercy Hospital, or Truman Medical Center for $237,566.66 for past medical aid rendered to Mr. Landis; and

6. The liability of St. Luke's Hospital, Children's Mercy Hospital, or Truman Medical Center for enhanced benefits under§ 287.200.4 RSMo.

St. Luke's Hospital, Children's Mercy Hospital, and Truman Medical Center stipulated that they had accepted liability for enhanced benefits under the statute. Mr. Michael Landis, the deceased employee, was deposed in the case on February 19, 2018 by his attorney. Mr. Landis had only filed a claim against St. Luke's Hospital at the time of his deposition.

2 Truman Medical Center elected not to file a brief in the case.

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Mr. Landis testified in his deposition that he was 69 years old. He stated that he was divorced. He also stated that he had two children: Christopher Allen Landis and Michael John Landis, Jr. He testified that his sons were 48 and 47 years old and that neither was financially dependent on him.

Mr. Landis testified that he was diagnosed with mesothelioma in 2017. He stated that he was a member of the Operating Engineers Union. He stated that licensed operating engineers did "All engineering work, being licensed engineers, power plant operators, boiler operators and all equipment operations." He stated that during his years as an operating engineer he did not know that he was using asbestos-containing materials (ACM).

Mr. Landis testified that he now believed that he worked with ACM. He stated that he believed that he first worked with ACM during his employment with the Kansas City Star. He indicated that he believed that he worked for the Star from 1968 to 1976.

Mr. Landis testified that he worked in the power plant at the Star. He stated that the insulation on the pipes and condensers contained asbestos. He stated that he had to remove insulation material from the pipes all the time. He stated that he scraped asbestos off gaskets and removed the asbestos material from the pumps and the firebox. He stated that he did boiler work. He referenced one time when all three boilers at the Star building went out. He stated that he had to get "in there" and "scrape and get all that stuff". He stated that he had to vacuum the "stuff" that he scraped. He also stated that he had to remove gaskets. He stated that he worked consistently with asbestos materials from 1968 to 1976 during his employment with the Star.

Mr. Landis testified that his next job was at St. Luke's Hospital (hereinafter referred to as SLH). He acknowledged that his social security records showed that he worked at the hospital from 1981 to 1985. He stated that he did the same type of work at SLH as he did for the Star, but he did not do as much repair work at SLH. He stated that SLH's boilers and power plant were newer and required less maintenance than those at the Star. He stated, however, that he did do repair work on pipes, turbines and valves at SLH and that he was exposed to asbestos.

Mr. Landis testified that the insulation on the pipes contained asbestos. He stated that he scraped ACM off the gaskets. He stated that on one occasion he scraped the big header valve. He stated that he was present when the inspectors opened up the boilers and removed the gaskets. He indicated that the gaskets had asbestos material on them.

Mr. Landis testified that his next job was at Children's Mercy Hospital (CMH) where he worked from 1985 to 1987. He stated that he cleaned out big tanks full of"really" bad scaly water at CMH. He stated that he did not believe that his work exposed him to asbestos.

On cross-examination by SLH, Mr. Landis indicated he was living at a rehab center. His deposition was taken at the rehab center.

Mr. Landis testified that he knew that he was working with asbestos at the Star and SLH by the gray color and little fibers in the material. He stated that while working for the Star he cut asbestos, installed it and removed it.

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Employee: Michael Landis Injury No.17-098196

Mr. Landis testified that his job title at SLH was Power Plant Operator. He stated that he ran the power plant. He alleged that workers were exposed to asbestos by just being in the power plant.

Mr. Landis stated that the cooling towers in the power plant at SLH had louvers. He stated that during the winter months, the cooling towers were shut down and that he had to go in there and scrape that "stuff'. He stated that the "stuff' was asbestos. He stated that the louvers were made out of asbestos. He stated that he did not wear a respirator while working at SLH.

Mr. Landis testified that his next job was at Children's Mercy Hospital (hereinafter referred to as CMH). He stated that there were pipes going to the tanks he cleaned on his job at CMH. He stated that he assumed that there was a gasket connecting the pipes to the tanks. He stated that there was probably asbestos at CMH, but he did not work around the asbestos areas.

Mr. Landis testified that he had subsequent jobs where he made wood pallets, whiskey barrels and did maintenance work at an apartment complex. He stated that his last job was at Truman Medical Center (hereinafter referred to as TMC).

Mr. Landis stated that he did not remember what he did for TMC. He stated that he did not remember if he worked in the boiler room or power plant at TMC. He stated that he could have been working on gaskets and "everything else", but he did not "think so" or remember. He admitted that he made more money per year on his job at TMC than he had ever made on any other job. He also stated that he was feeling "very" tired at that point in the deposition and that he was having trouble breathing.

Finally, Mr. Landis testified that he had to retire while working at TMC because his knees "went out". He stated that he had 14 surgeries on his knees.

Mr. Landis' Earlier Deposition Testimony from a Prior Workers' Compensation Case

SLH offered into evidence Mr. Landis' deposition testimony taken on July 22, 1988 by an attorney for CMH. Mr. Landis had alleged an April 1987 injury arising out of his employment for CMH.

Mr. Landis admitted in the deposition that his duties at CMH required him to go to the boiler room on every shift to check the boilers and to test the chemicals in the water in the boilers. He admitted that he worked in the power plant. He stated that his 1987 injury occmTed after he had been working in the hot boiler room for an extended period of time testing the chemicals, lifting heavy pipes and equipment and cleaning up for an inspection. He stated that he became sick and dizzy while working in the heat and that he stumbled and fell into a wall and sttuck his head.

Claimant's Other Evidence

After Mr. Landis' death, his son, Christopher Landis (hereinafter referred to as Claimant) was substituted as the party in interest in the case. Claimant offered into evidence the October 2017 biopsy report pe1iaining to Mr. Landis' right lung. The biopsy showed that Mr. Landis had a malignant neoplasm of the lung.

Claimant also offered into evidence corresponding medical records showing that Mr. Landis was diagnosed by several physicians with mesothelioma of the right lung. He offered Mr. Landis'

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Employee: Michael Landis Injury No, 17-098196

death ce1tificate showing that Mr. Landis died on June 5, 2018. The coroner concluded that Mr. Landis died ofmesothelioma of the right lung.

Claimant's Medical Opinion

Anthony Shen, M.D., a board certified pulmonologist and internal medicine specialist, testified by deposition for Claimant. Dr. Shen testified that he had been the director of the pulmonary division and pulmonary function lab at Missouri Baptist Hospital since 1986.

Dr. Shen testified that he did all the review work for Amaren's asbestos cases. He stated that he worked with Amaren and the boilermakers and operating engineers and supervisors about the environment in power plants.

Dr. Shen noted the evidence he reviewed in Mr. Landis' case. He stated that he agreed with the cause of death referenced in Mr. Landis' death ce1tificate. He stated that Mr. Landis' biopsy showed that Mr. Landis had biopsy-proven mesothelioma with extensive disease and impairment. He stated that in his opinion it was more likely than not that Mr. Landis died of mesothelioma that was contracted and associated with exposure in his employment.

Dr. Shen further noted that Mr. Landis' October 28, 2017 CT showed that he had "significant" pleural disease. He noted that Mr. Landis had a surgical decortication on October 31, 2017, which served as the basis for the mesothelioma diagnosis. He concluded that Mr. Landis' exposure to asbestos in his employment was the predominant factor for Mr. Landis' development of mesothelioma.

Finally, Dr. Shen testified that it was not unusual for 20 to 40 years to lapse between exposure and development of mesothelioma. He stated that Mr. Landis' medical bills were consistent and appropriate for the evaluation and management of Mr. Landis' pleural disease and pulmonary symptoms. He stated that a 30-day notice requirement was not feasible with asbestos-related lung diseases, because there was no known medical treatment or medication that would prevent the development of asbestosis and asbestos-related mesothelioma.

On cross-examination by SLH, Dr. Shen testified that he still treated mesothelioma patients. He stated that he diagnosed and managed the disease. He admitted that asbestos could not be identified by just looking at it. He stated that to determine whether something was asbestos required an analysis of it.

Dr. Shen stated that asbestos was part of the environment of all power plants when it was banned in the 1970s. He stated that, once installed, asbestos was encapsulated and sealed and not a hazard. He stated that it became a hazard when workers had to get involved with it while performing services on the building.

CMH's cross-examination of Dr. Shen was cumulative of the doctor's earlier testimony. On redirect examination, Dr. Shen testified boilermakers, pipefitters, insulators and operating engineers working in asbestos environments such as power plants had a "very" high exposure to asbestos.

SLH's Other Evidence

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Mr. Gary Kannenberg, an environmental scientist, testified by deposition for SLH on August 5, 2019. Mr. Kannenberg testified that he had been an environmental scientist for 35 to 40 years. He stated that he had a master's degree in environmental science from the University of Montana. He stated that he began working in the asbestos field in 1984.

Mr. Kannenberg testified that in 1986 Congress passed the Asbestos Hazard Emergency Response Act (AHERA) which was a big impetus for asbestos work nationally. He stated that the University of Kansas was one of the four national asbestos training centers set up by the EPA to train people to do asbestos work. He stated that he was hired by the University of Kansas to develop the course for asbestos inspectors, an inspection management planner course, and an asbestos contractor and worker course. He also stated that he developed the asbestos abatement projects and classes for the University of Kansas national asbestos training center. He stated that he taught at the asbestos training center for several years. He stated that he had been working as an asbestos consultant since 1988. He stated that he had worked on asbestos abatement projects, abatement design projects and the monitoring of air for asbestos.

Mr. Kannenberg testified that he reviewed Mr. Landis' two depositions, social security earnings records and his work history. He noted that Mr. Landis had worked for a number of years as an operating engineer in large power plants. He noted that Mr. Landis' 1988 deposition testimony showed that Mr. Landis had also worked in the boiler room and power plant at CMH.

Mr. Kannenberg concluded that Mr. Landis was exposed to asbestos on every job he had as an operating engineer. He stated that during the period 1984 to 1986 he did a lot of work in power plants in hospitals and other buildings. He stated that he observed their conditions. He stated that typically there was a lot of damaged asbestos insulation in the power plants and that the operating engineers worked around the asbestos every day. He stated that when there were leaks, the operating engineer removed the insulation and fixed the pipe and then re-insulated the pipe. He concluded that it was likely that Mr. Landis had asbestos exposure on each of his jobs as an operating engineer and a good chance that he was exposed to asbestos on his job in apartment maintenance if he worked on the popcorn ceilings which contained asbestos at that time.

Mr. Kannenberg further noted that Mr. Landis was not exposed to asbestos in the three specific instances in which Mr. Landis alleged exposure at SLH. He noted that one of the instances involved wet asbestos which according to the EPA and OSA is not a health hazard. He stated that the other two alleged instances involved Mr. Landis scraping asbestos material by hand. He noted that per EPA and OSA guidelines asbestos would not become friable unless a power tool was used to cut, drill, sand, scrape, grind or grate the material, but not scraping by hand.

On cross-examination by Claimant, Mr. Kannenberg testified that in his opinion Mr. Landis had "significant" exposure to asbestos in his work as an operating engineer. He admitted that in his opinion Mr. Landis was exposed to asbestos in his work at SLH where he served as an operating engmeer.

Mr. Kannenberg testified that he had worked as a consultant on asbestos management surveys and abatement projects in the 1980s and 1990s in numerous hospitals and large power plants, including the Mayo Hospital, the VA Hospital in Kansas City, the Kansas University Medical Center, Spellman Hospital in Smithville, Missouri, the Fort Riley Hospital, a couple of air force

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base hospitals, a hospital in Joplin, Missouri, several medical school hospitals, the hospitals of the State University system of New York and a hospital in Des Moines, Iowa.

Mr. Kannenberg testified that all the hospital power plants were "roughly" the same. He stated that the engineers' work in the power plants of all the hospitals was the same. He stated that the power plants in all the hospitals in the Kansas City area from 1968 to 1994 had "vast quantities" of asbestos-containing materials (ACM) in the insulation on the boilers, tanks, pipes and equipment. He stated that he had personally observed the ACM on the boilers, tanks, pipes and equipment in various power plants and hospitals. He stated that the presence of asbestos was consistent with each hospital he visited and which had been constrncted prior to the mid- I 970s.

In addition, Mr. Kannenberg testified that it was "Typical in the 1980s and early 1990s to walk into a power plant or boiler room of a building and find ACM that was damaged". He stated that during the 1980s and early 1990s, ACM debris was on the floor and equipment of the facilities. He stated that construction, renovation and maintenance activities in the power plants during the period Mr. Landis worked in the power plants rarely had any measures to control asbestos exposure, which resulted in exposure by the workers to airborne fibers.

Finally, Mr. Kannenberg reiterated that in his opinion, "Mr. Landis had significant asbestos exposure in every position he had as an operating engineer from 1968 to 1994".

On cross-examination by CMH, Mr. Kam1enberg testified that he read Mr. Landis' 1988 deposition where Mr. Landis discussed his job duties at CMH as showing that Mr. Landis' duties as an operating engineer were the same at SLH and CMH. He specifically stated that he disagreed with CMH' s assertion that Mr. Landis' jobs as an operating engineer were different at CMH and SLH.

Finally, Mr. Kannenberg testified that he knew for ce1iain that ACM was contained in the insulation around the boilers, pipes and tanks at CMH. He stated that the insulation on the pipes at CMH contained friable asbestos. He specifically stated that there was, "no doubt in my mind that boiler rooms at Children's Mercy Hospital had asbestos insulation on the boilers and tanks" because "every boiler room in America at that point in time had asbestos insulation on their boilers and tanks".

On cross-examination by TMC, Mr. Kannenberg admitted that he had no specific lmowledge or specific inf01mation as to Mr. Landis' job duties at TMC. He admitted that he had no knowledge of any exposure or potential exposure at TMC. Mr. Kannenberg was asked the following question, "Okay. So if he worked in the hospital and had no.access to the boiler room he would not be exposed to asbestos based on the information in your rep01i. Is that a correct statement?" Mr. Kannenberg responded "No." There were, however, no follow \-up questions to get a clarification of Mr. Kannenberg's answer to the vague question.

Mr. Kannenberg's Report

Mr. Kannenberg's report was cumulative of his testimony. He noted in his rep01i, however, that all power plants built before 1976 had asbestos containing materials (ACM) in the insulation on the boilers. He noted that the EPA did not ban ACM in the insulation until 1975 and that with the ban the EPA did not require power plants to identify or remove the ACM installation already

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in existence in the power plants. He stated that the power plants had more ACM than any other part of the building.

Mr. Kannenberg noted that all the power plants Mr. Landis worked in were built before 1976, and that, therefore, it was reasonable to conclude that all the power plants had ACM in the insulation on all the equipment in the boiler rooms, which was standard at the time.

Mr. Kannenberg testified that none of the power plants he worked in during the 1980s had any type of asbestos management program to identify, label or monitor the ACM in the plant. He stated that none had any employee training or protection program for ACM. He stated that it was typical in the 1980s and 1990s to walk into a power plant or boiler room of a building and find damaged ACM and ACM debris on the floor and on equipment and no knowledge at the facility of asbestos regulations or practices.

Mr. Kannenberg concluded that it was "extremely" likely that CMH had ACM in the insulation on the boilers and pipes in its power plant and boiler room and that the asbestos was disturbed with any maintenance or repairs. He further stated that it was reasonable to conclude that Mr. Landis worked as an operating engineer at TMC, because he was still a member of the Operating Engineers Union and based on his earnings at TMC.

CMH's Evidence

CMH deposed Thomas B. Kibby, M.D. on August 21, 2019. Dr. Kibby testified that he had also completed an occupational medicine residency, during pati of which he received a Masters of Public Health degree with a major in epidemiology (the study of how and why diseases often develop in different groups of people). He stated that he was now working as a physician for Barnes Care Center and as an instructor in emergency medicine at the Washington University School of Medicine.

Dr. Kibby admitted that he had never treated any patients with an asbestos-related illness. CMH then asked Dr. Kibby ifhe was aware that Mr. Landis had worked as an operating engineer for St. Luke's and Children Mercy Hospitals. 3 Dr. Kibby answered in the affirmative.

Next, CMH asked Dr. Kibby, "Did you form an opinion on whether that mesothelioma was caused by his employment at Children's Mercy Hospital".4 Dr. Kibby responded that he had formed an opinion. He stated that Mr. Landis had "substantial" exposure to asbestos with his first two major employers, the Kansas City Star and SLH and that the exposure "likely would have been sufficient to explain the cause of his mesothelioma, since most, if not all mesothelioma is related to some type of asbestos exposure".

Dr. Kibby stated that by Mr. Landis' "own words, that Children's Mercy Hospital was not likely a more likely than not source of asbestos exposure to explain his mesothelioma".

CMH's cover or engagement letter to Dr. Kibby also misstated Mr. Kannenberg's opinion. CMH stated in the cover letter that Mr. Kannenberg had concluded that Mr. Landis was not

3 In pretrial discussions on the morning of the hearing, CMH denied any knowledge as to whether Mr. Landis worked as an operating engineer at CMH. Dr. Kibby was deposed eight days before the hearing.

4 This is a last exposure case. The last exposure rule is not a rule of causation as set out later in the award.

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exposed to asbestos at SLH. Mr. Kannenberg never made any such statement in his report or in his testimony. In fact, his opinion was the opposite. Mr. Kannenberg concluded that Mr. Landis was exposed to asbestos while working as an operating engineer at both SLH and CMH.

CMH also asked Dr. Kibby to address the following question in his report: "Whether the claimant's employment at Children's Mercy Hospital would have been the prevailing factor in the development of his diagnosis/medical condition and ultimate death?"5

Law

After considering all the evidence, including Mr. Landis' two depositions, Mr. Kannenberg's testimony and repo1t, the depositions and reports ofDrs. Shen and Kibby, the medical records and the stipulations of the patties, I find and believe that Claimant met his burden of proving that his deceased father filed a timely claim for compensation. He proved that Mr. Landis' named employers were not prejudiced by any defects in the notice. He also proved that his deceased father sustained an occupational disease as defined by Missouri law. The evidence showed that under the last exposure rule, CMH was liable for the occupational disease. See § 287.067 RSMo. 2005. Therefore, CMH is ordered to pay the enhanced benefits and medical bills as set out in the award plus the burial allowance.

Burden of Proof

Claimant, the son of Mr. Landis, the deceased employee, was substituted as the party in interest after his father's death. The claim is for enhanced benefits due to a toxic exposure and the payment of medical bills. Claimant had the burden of proof. See Fischer v. Arch Diocese of St. Louis ~ Cardinal Richter Inst., 703 SW 2nd 196 (Mo .App. E.D. 1990); ovenuled on other grounds by Hampton vs. Big Boy Steel Erections, 121 SW 3rd 220 (Mo. Banc 2003); Griggs v. A.B. Chance Company, 503 S.W. 2d 697 (Mo. App. W.D. 1973); Hall v. Country Kitchen Restaurant, 935 S.W. 2d 917 (Mo. App. S.D. 1997); ovenuled on other grounds by Hampton. He met his burden.

Whether the Limitation Period Had Expired Prior to the Filing of the Claim for Compensation

Mr. Landis filed a claim for compensation based on an alleged occupational disease due to exposure to asbestos. The applicable statutes pertaining to the limitation period for an occupational disease provide as follows:

287.430. Limitation as to action, exception. - Except for a claim for recovery filed against the second injury fund, no proceedings for compensation under this chapter shall be maintained unless a claim therefor is filed with the division within two years after the date of injwy or death, or the last payment made under this chapter on account of the injury or death, except that if the repo1t of the injmy or the death is not filed by the employer as required by section 287.380, the claim for compensation may be filed within three years after the date of injury, death, or last payment made under this chapter on account of the injury or death. The filing of any form, repo1t, receipt, or agreement, other than a claim for compensation, shall

5 The question was irrelevant. The last exposure rule has nothing to do with whether Mr. Landis' employment at CMH was the prevailing factor in causing Mr. Landis' mesothelioma.

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not toll the running of the periods oflimitation provided in this section. The filing of the report of injury or death three years or more after the date of injury, death, or last payment made under this chapter on account of the injury or death, shall not toll the running of the periods of limitation provided in this section, nor shall such filing reactivate or revive the period oftime in which a claim may be filed .... The statute of limitations contained in this section is one of extinction and not of repose.

§ 287.430 RSMo. 2005

See also the statute pe1iaining specifically to the limitation period for occupational diseases, which provides as follows:

3. The statute of limitation refened to in section 287.430 shall not begin to run in cases of occupational disease until it becomes reasonably discoverable and apparent that an injury has been sustained related to such exposure, ...

§ 287.063.3 RSMo. 2005.

Thus, an employee has two years from the date of injury or occupational disease to file a claim for compensation unless the employer fails to file a rep01i of injury on a timely basis. The report of injury must be filed within 30 days of knowledge of the injury or occupational disease. See § 287.380 RSMo. 2005. If the employer does not file a timely rep01i of injury, the employee has three years to file the claim for compensation.

In an occupational disease case, the statute of limitations does not begin to run until it becomes reasonably discoverable and apparent that an injury has been sustained related to such exposure. Mr. Landis began experiencing problems with breathing in the SUlllffier of 2017. The surgical pathological report of his right lung contained a final diagnosis of mesothelioma on November 8, 2017.

Mr. Landis admitted in his deposition that prior to his diagnosis, he knew that mesothelioma was caused by exposure to asbestos. He testified that he worked with asbestos prior to his diagnosis. Thus, it was reasonably discoverable and apparent that Mr. Landis had sustained an alleged occupational disease due to exposure to asbestos as of the date of his mesothelioma diagnosis on November 8, 2017.

Mr. Landis, however, filed his claim for compensation against SLH on December 22, 2017. The claim was filed within two years of November 8, 2017, when it was reasonably discoverable and apparent that Mr. Landis had sustained an occupational disease related to exposure to asbestos.

Mr. Landis amended his claim on May 7, 2018 and named SLH, CMH and TMC as employers. Again, May 7, 2018 was within two years of November 8, 2017 when it was reasonably discoverable and apparent that Mr. Landis had sustained an occupational disease related to exposure to asbestos.

SLH, CMH and TMC failed in their burden of proof on the affirmative defense that the limitation period had expired prior to the filing of the claim.

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Notice

The applicable statute pettaining to notice provides as follows:

No proceedings for compensation for any accident under this chapter shall be maintained unless written notice of the time, place and nature of the injury, and the name and address of the person injured, has been given to the employer no later than thirty days after the accident, unless the employer was not prejudiced by failure to receive the notice. No proceedings for compensation for any occupational disease or repetitive trauma under this chapter shall be maintained unless written notice of the time, place, and nature of the injury, and the name and address of the person injured, has been given to the employer no later than thirty days after the diagnosis of the condition unless the employee can prove the employer was not prejudiced by failure to receive the notice.

287.420 RSMo 2005

Notice is an affirmative defense. Aramark Educational Services, Inc. v. Leona Faulkner, 408 S.W3d 271 (Mo. App. E.D. 2013); Snowv. Hicks Bros. Chevrolet, Inc., 480 S.W.2d 97 (Mo. App. 1972). Mr. Landis' employers had the burden of proof on the affirmative defense. Aramark; Snow.

Again, Mr. Landis was diagnosed with mesothelioma on November 8, 2017. It appears from the evidence that he provided written notice to SLH on December 22, 2017 when he filed his claim for compensation. He provided written notice to CMH and TMC on May 7, 2018 when he filed an amended claim for compensation naming CMH and TMC as employers.

Thus, each of Mr. Landis' employers met their burden of proving that Mr. Landis did not provide timely notice of his alleged occupational disease. The burden of proof then shifted to Mr. Landis to prove that his employers were not prejudiced by the failure to receive timely and proper notice of the alleged occupational disease. See Sell v. Ozark Medical Center, 333 S.W.3d 498 (Mo. App. 2011); Soos v. Mallinckrodt Chem.Co., 19 S.W3d 683 (Mo. App. E.D. 2000) overruled on other points by Hampton v. Big Boy Steel Erections, 121 S.W. 3d 220 (Mo. bane 2003); Harley-Davidson Motor Co., Inc. v. Kenneth Jones and Treasurer of State of Missouri, Custodian of the Second Injury Fund; 557 S.W.3d 328 (Mo. App.W.D. 2018).

Mr. Landis met his burden of proving that his employers were not prejudiced by his failure to provide timely or proper notice of the occupational disease. Dr. Shen, an expe1t in treating and managing the care of mesothelioma patients, testified that a 30-day notice requirement was not "feasible" with asbestos-related lung diseases, because there was no known medical treatment or medication that would prevent the development of asbestosis and asbestos-related mesothelioma. Dr. Shen noted that there was no cure for mesothelioma.

Dr. Shen's opinion was credible. The evidence supp01ted his opinion. Regardless of whether Mr. Landis had provided notice within 30 days of the diagnosis, the results were going to be the same. He was going to require treatment for his lung disease, including chemotherapy ifhe chose that option, and death was going to be the end result. His employers were not prejudiced by the

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notice received by SLH 44 days after the diagnosis instead of within 30 days, and CMH and TMC 180 days after the diagnosis. He died 209 days after the diagnosis.

Whether Mr. Landis Sustained an Occupational Disease Due to Exposure to Asbestos in the Workplace Resulting in His Mesothelioma and His Resulting Death

The applicable statute pertaining to occupational diseases provides in pertinent parts as follows:

287.067. Occupational disease defined - repetitive motion, loss of hearing, radiation injury, communicable disease, others. - 1. In this chapter the term "occupational disease" is hereby defined to mean, unless a different meaning is clearly indicated by the context, an identifiable disease arising with or without human fault out of and in the course of the employment. . . The disease need not to have been foreseen or expected but after its contraction it must appear to have had its origin in a risk connected with the employment and to have flowed from that source as a rational consequence.

2. An injury or death by occupational disease is compensable only if the occupational exposure was the prevailing factor in causing both the resulting medical condition and disability. The "prevailing factor" is defined to be the primary factor, in relation to any other factor, causing both the resulting medical condition and disability ...

§ 287.067 RSMo. 2005.

Thus, the employee must prove an identifiable disease arising out of and in the course of his employment. He also must prove that the occupational exposure was the prevailing factor in causing the resulting medical condition and disability.

Claimant, as noted above, met his burden of proof. Mr. Landis, the deceased employee, worked as an operating engineer for the Kansas City Star, SLH and CMH in that order. He also later worked at TMC and he did maintenance work at an apartment complex.

Mr. Landis' medical records showed that he had an identifiable disease. On November 8, 2017, he was diagnosed with mesothelioma of his right lung. His death certificate stated that he died of mesothelioma. Dr. Shen, a board-ce1tified pulmonologist and a specialist in asbestos-related cases, testified that Mr. Landis' mesothelioma was caused by Mr. Landis' exposure to asbestos. He testified that Mr. Landis' death resulted from mesothelioma.

Occupational Exposure

Mr. Landis alleged in his original claim for compensation that he was exposed to asbestos on his job at SLH. Mr. Landis' attorney deposed Mr. Landis on Febrnary 19, 2018.

Mr. Landis provided detailed testimony in his deposition about his job duties at the Kansas City Star and SLH. He worked at the Star from 1968 to 1976 as an operating engineer. He worked

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at SLH from 1981 to 1985 as an operating engineer. He testified that he was exposed to asbestos on both jobs. 6

Mr. Landis testified that he scraped asbestos material from gaskets on both jobs and that he worked around deteriorating insulation which contained asbestos on the pipes and other equipment on both jobs. He stated that he had to remove the old insulation on the pipes and equipment and replace it with new insulation on both jobs.

CMH admitted in the deposition of Dr. Kibby that Mr. Landis was an operating engineer at CMH. SLH offered into evidence Mr. Landis' 1988 deposition taken by CMH. Mr. Landis admitted in the deposition that he went into the boiler room at CMH on every shift to check the boiler and to test the chemicals in the water in the boiler. He noted, as set out earlier, that his 1987 injury at CMH occun-ed after he had been working extensively in the hot boiler room lifting heavy pipes and equipment and cleaning up the boiler room for an inspection.

Mr. Kannenberg, an industrial scientist and an expert on asbestos in the workplace, and Dr. Shen, a pulmonologist, who treated asbestos patients and worked extensively with labor and management, testified that Mr. Landis had "significant" exposure to asbestos in his work as an operating engineer. Mr. Kannenberg testified that the power plants and boiler rooms of all hospitals were "roughly" the same and that asbestos was all over the pipes, boilers, tanks, equipment and floors in all boiler rooms during the period where Mr. Landis worked as an operating engineer at the Kansas City Star, SLH, CMH and TMC.7

Dr. Shen testified that asbestos was part of the environment of all power plants when it was banned in the 1970s. He stated that asbestos became a hazard whenever workers got involved with it while perfon-ning services on the building. He testified that boilermakers, pipefitters, insulators and operating engineers working in asbestos enviromnents such as power plants had a "very" high exposure to asbestos.

Dr. Shen and Mr. Kannenberg were credible in their testimony that Mr. Landis was exposed to asbestos in his jobs as an operating engineer in power plants. The evidence supported their testimony. No contrary evidence was offered. Also, the Missouri Court of Appeals for the Western District has recognized that the trier of fact may make reasonable inferences from the evidence in mesothelioma and in all cases. See Wagner v. Bondex Int'!, Inc., 368 S.W.3d 340 (Mo. App. W.D. 2012). Claimant proved that Mr. Landis sustained an occupational disease resulting from his exposure to asbestos in his employment causing his mesothelioma and death.

Whether SLH or CMH or TMC Was Liable for Mr. Landis' Occupational Disease

The applicable statute pe1iaining to liability in cases involving multiple employers and occupational diseases provides as follows:

6 All the experts agreed that asbestos could not be identified by its appearance and texture. A microscopic analysis was needed to properly identify the material as asbestos.

7 Mr. Kannenberg based his opinion that Mr. Landis was an operating engineer at TMC on Mr. Landis' earnings at the hospital and Mr. Landis' continuing membership in the Operating Engineers' Union. Neither, however, constituted sufficient proof that Mr. Landis was an operating Engineer at TMC. Similarly, there was no evidence showing that Mr. Landis worked around asbestos on his job doing maintenance work at an apartment complex.

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287.063. Occupational diseases, presumption of exposure - last employer liable - statute of limitations, starts running, when. - 1. An employee shall be conclusively deemed to have been exposed to the hazards of an occupational disease when for any length of time, however short, he is employed in an occupation or process in which the hazard of the disease exists, subject to the provisions relating to occupational disease due to repetitive motion, as is set forth in subsection 8 of section 287.067.

2. The employer liable for the compensation in this section provided shall be the employer in whose employment the employee was last exposed to the hazard of the occupational disease prior to evidence of disability, regardless of the length of time of such last exposure, subject to the notice provision of section 287.420. ( emphasis added) ...

Thus, the statute provides that the employee shall be conclusively deemed to have been exposed to the hazards of an occupational disease when for any length of time, however shmi, he is employed in an occupation or process in which the hazard of the disease exists. Id. The statute must be strictly construed. See§ 287.800 RSMo. 2005.

In addition, the statute specifically provides that the last employer to expose the employee to the hazard of the occupational disease prior to evidence of disability is liable, regardless of the length of time of the last exposure.

As noted in the preceding section, Mr. Landis worked in an occupation, operating engineer in a power plant, where the hazard of the occupational disease, asbestos, existed. Mr. Landis worked as an operating engineer for the Kansas City Star, SLH and CMH in that order. As noted earlier, he worked extensively in the boiler rooms and power plants at the Kansas City Star, SLH and CMH where asbestos was prevalent.

The evidence showed that Mr. Landis worked as an operating engineer for the Kansas City Star from 1968 to 1976 and that he was exposed to asbestos on the job. He worked as an operating engineer for SLH from 1981 to 1985 and he was exposed to asbestos on the job. He worked as an operating engineer at CMH from 1985 to 1987 and he was exposed to asbestos on the job.

Thus, the evidence showed that CMH was the last employer to expose Mr. Landis to the hazard of exposure to asbestos. Therefore, per § 287.063 RSMo. 2005, as set out above, CMH is liable for Mr. Landis' mesothelioma occupational disease. CMH is ordered to pay the enhanced benefits to Claimant as set out below and to pay the medical bills incuITed by Mr. Landis for reasonable and necessary treatment rendered to treat and relieve Mr. Landis from the effects of his mesothelioma lung disease. '

Finally, CMH's arguments were considered. SLH, CMH and TMC were asked in pretrial discussions on the morning of the hearing about Mr. Landis' job title. SLH stated that Mr. Landis was an operating engineer. CMH and TMC denied any knowledge as to Mr. Landis' job title. Eight days before the hearing, however, CMH had deposed Dr. Kibby, its medical expe1i. CMH had explicitly stated in the deposition that Mr. Landis was an operating engineer at CMH. (See Kibby deposition page 9).

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SLH, CMH and TMC were asked if Mr. Landis did any work in the boiler room or power plant of the respective hospitals. SLH responded that Mr. Landis worked in the boiler room and power plant. TMC stated that Mr. Landis had testified in his 2018 deposition that he could not remember what he did at TMC and that TMC had no knowledge as to what Mr. Landis did at TMC.8

CMH stated that Mr. Landis did not work in the boiler room or the power plant at CMH. CMH stated that Mr. Landis had testified in his 2018 deposition that he only cleaned some tanks at CMH. CMH did not disclose in the pretrial discussions that it had furnished a copy of Mr. Landis' 1988 deposition taken by CMH to Dr. Kibby prior to the hearing. Mr. Landis testified in the 1988 deposition that he worked in the boiler room and power plant at CMH.

In addition, CMH chose to defend the case based on a defense not available in the statute where there were multiple employers who exposed the employee to the hazard of the occupational disease. Id. CMH' s defense was irrelevant under the last exposure rule as set out in the statute.

CMH based its defense on causation. 9 CMH argued that it had no liability based on Dr. Kibby's opinion. 1° CMH asked Dr. Kibby in the deposition," ... {Did} you form an opinion on whether that mesothelioma was caused by his employment at Children's Mercy Hospital {CMH}". Dr. Kibby responded that Mr. Landis had "substantial" exposure to asbestos with his

8 Mr. Landis was in extremely poor health at the time of his 2018 deposition. He died less than four months after the deposition. He had spent most of the deposition testifying on direct examination about his job duties at the Kansas City Star and SLH. When discussing his job duties at CMH and TMC on cross-examination, Mr. Landis complained about extreme fatigue and shortness of breath. He declined the opportunity for a break, indicating that he wanted the deposition to end as soon as possible. Mr. Landis' 1998 deposition testimony was closer in time to when he worked at CMH and it was entitled to more weight than his testimony 30 years later in a deposition where he was extremely fatigued and experiencing breathing problems.

9 CMH appeared to have abandoned its argument of no liability based on causation and prevailing factor theories in its brief. CMH acknowledged in its brief for the first time the last exposure rule. Arguments in a brief, however, do not constitute evidence. CM H's evidence was that it had no liability based on Dr. Kibby's opinion that Mr. Landis' jobs at the Kansas City Star and SLH were more likely than not the prevailing factor in causing Mr. Landis' mesothelioma than his job at CMH. Also, in its brief, CMH abandoned its earlier argument in the pretrial discussions that Mr. Landis only cleaned a tank in his two years of employment at CMH and never went into the boiler room. Instead, CMH argued in its brief that there was no evidence that there was any friable asbestos in the boiler room at CMH. Again, CMH misinterpreted the opinions offered by Mr. Kannenberg, an industrial scientist and a specialist in asbestos in the workplace and Dr. Shen who has treated mesothelioma patients and worked with management and labor on asbestos-related issues. Both provided credible testimony to support a finding that Mr. Landis was exposed to asbestos in all of his jobs as an operating engineer. Furthermore, absolute proof of asbestos in a particular workplace is not required. Again, CMH failed to recognize the specific language in the occupational disease statute. See § 287.063.1 RSMo. 2005 which provides that: "An employee shall be conclusively deemed to have been exposed to the hazards of an occupational disease when for any length of time, however short, he is employed in an occupation or process in which the hazard of the disease exists". Here, Dr. Shen testified that there was a "very" high exposure to asbestos of operating engineers. Mr. Kannenberg testified that asbestos was all over the boiler rooms and power plants where operating engineers worked. Their testimony was credible. Mr. Landis was clearly employed in an occupation or process at CMH where the hazard of the disease existed.

10 Dr. Kibby has never treated a mesothelioma patient. He is not a pulmonologist. He has no specialties in asbestos-related matters. He is not an industrial scientist. He has no expertise as to whether Mr. Landis' occupation as an operations engineer exposed him to asbestos. He did not address the last exposure rule in his opinion.

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first two major employers, the Kansas City Star and SLH and that the exposure "likely" would have been sufficient to explain the cause of his mesothelioma.

Dr. Kibby explained his opinion by stating that "Children's Mercy Hospital was not likely a more likely than not source of asbestos exposure to explain his mesothelioma". Whatever that was intended or supposed to mean, it was of no probative value on the issue of CMH's liability. Nevertheless, CMH argued that it had no liability based on Dr. Kibby's opinion.

Again, the statute specifically states that the last employer to expose the employee to the hazard of the occupational disease prior to evidence of disability is liable regardless of the length of time of the last exposure. Id. The Missouri Supreme Court has made it clear that the last exposure rule is not a rule of causation. See Johnson v. Denton, 911 S.W.2d 286 (Mo. bane 1995); Endicott v. Display Technologies, 77 S.W.3d (Mo. 2002); Pierce v. BSC, Inc. & Builders Association SelfInsurer's Fund, 207 S.W.3d 619 (Mo. 2006). The last exposure rule is a rule of convenience. Pierce; Tunstill v. Eagle Sheet Metal Works and Federated Insurance Company and Tunstill v. Eagle Sheet Metal Works and Allied Mutual Insurance Company, 870 S.W. 2d (Mo. App. S.D. 1994).

The legislature adopted a rule of convenience for occupational disease cases, because it is impossible to determine which employer caused the disease. The rule is particularly pertinent in toxic exposure cases, such as asbestos exposure because the disease has a latency period of up to 40 years or more, and the employee, like Mr. Landis, may have worked for numerous employers in the 40 years.

CMH could have defended the case based on the last exposure rule, as did SLH. CMH could have subpoenaed Mr. Landis' personnel records at TMC in an effort to discern his job title and whether he worked in the boiler room or power plant or worked around pipes with asbestos in the insulation. CMH could have deposed the human resources director at TMC or Mr. Landis' son. CMH could have requested Mr. Landis' workers' compensation records. The records usually set out the employee's job title. It appeared that SLH requested Mr. Landis' workers' compensation records and discovered Mr. Landis' 1998 deposition in the records.

CMH did not follow-up with Mr. Kannenberg's suggestion that Mr. Landis might have been exposed to asbestos in Mr. Landis' job in apartment maintenance subsequent to Mr. Landis' employment at CMH.

CMH's causation defense failed. CMH is liable under the last exposure rule. CMH is ordered to pay the enhanced benefits and medical bills as set out below.

Enhanced Benefits

The applicable statute pertaining to enhanced benefits in mesothelioma cases provides at § 287 .200.4 RSMo. 2005 and as amended effective with January I, 2014 in pe1iinent paiis as follows:

4. For all claims filed on or after January 1, 2014, for occupational diseases due to toxic exposure which result in a permanent total disability or death, benefits in this chapter shall be provided as follows:

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' ' ' Issued by: DIVISION OF WORKERS' COMPENSATION


(!) Notwithstanding any provision of law to the contrary, such amount as due to the employee during said employee's life as provided for under this chapter for an award of permanent total disability and death, except such amount shall only be paid when benefits under subdivisions (2) and (3) of this subsection have been exhausted;

(2) For occupational diseases due to toxic exposure, but not including mesothelioma, an amount equal to two hundred percent of the state's average weekly wage as of the date of diagnosis for one hundred weeks paid by the employer; and

(3) In cases where occupational diseases due to toxic exposure are diagnosed to be mesothelioma:

'(a) For employers that have elected to accept mesothelioma liability under this subsection, an additional amount of three hundred percent of the state's average weekly wage for two hundred twelve weeks shall be paid by the employer or group of employers such employer is a member of. . ..

(4) The provisions of subdivision (2) and paragraph (a) of subdivision (3) of this subsection shall not be subject to suspension of benefits as provided in subsection 3 of this section; and

(5) Notwithstanding any other provision of this chapter to the contrary, should the employee die before the additional benefits provided for in subdivision (2) and paragraph (a) of subdivision (3) of this subsection are paid, the additional benefits are payable to the employee's spouse or children, natural or adopted, legitimate or illegitimate, in addition to benefits provided under section 287.240. If there is no surviving spouse or children and the employee has received less than the additional benefits provided for in subdivision (2) and paragraph (a) of subdivision (3) of this subsection the remainder of such additional benefits shall be paid as a single payment to the estate of the employee;

(6) The provisions of subdivision (1) of this subsection shall not be constrned to affect the employee's ability to obtain medical treatment at the employer's expense or any other benefits otherwise available under this chapter.

5. Any employee who obtains benefits under subdivision (2) of subsection 4 of this section for acquiring asbestosis who later obtains an award for mesothelioma shall not receive more benefits than such employee would receive having only obtained benefits for mesothelioma under this section.

Thus, § 287.200.4 RSMo. 2005 and as amended effective with January 1, 2014 provides for enhanced benefits for claims filed on or after January 1, 2014 in cases involving toxic exposure resulting in mesothelioma. 11 The statute only applies where the employers have elected to accept

11 The statutes also allow for death benefits in a workers' compensation case where enhanced benefits are owed by the employer. See § 287.240 RSMo. 2005. Only the spouse and minor children or children physically or mentally

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., ' ' 1,



liability for enhanced benefits. The attorneys for SLH, CMH and TMC affirmed that their clients had elected to accept liability for enhanced benefits. 12

Mr. Landis was not survived by a spouse. Christopher Landis, the deceased employee's son, filed an affidavit dated June 20, 2018 stating that he was the only surviving son of the deceased employee. Mr. Landis, however, had testified in his deposition on February 29, 2018 that he had two sons, Christopher and Michael Landis, Jr.

Therefore, pursuant to§ 287.200.4 (5) as amended effective with January 1, 2014, Mr. Landis' son Christopher, the claimant in the workers' compensation case is entitled to the entire amount of the enhanced benefits under the statute as long as Mr. Landis' other son, Michael Landis, Jr. had predeceased his father. The evidence showed that Mr. Landis, the deceased employee, died on June 5, 2018. Christopher, as noted above, filed the affidavit on June 20, 2018.

Thus, if Michael Landis, Jr., the deceased employee's other son had died prior to Mr. Landis' death on June 5, 2018, Christopher, the claimant in the workers' compensation case was the only surviving son as of the date of his father's death and as such Christopher was entitled to the entire amount of the enhanced benefits.

If Michael Landis, Jr. died after June 5, 2018 but prior to June 20, 2018 when Christopher filed the affidavit as referenced above, Michael Landis, Jr. was also a surviving son and Michael Jr. was entitled to½ of the enhanced benefits with Michael Jr.'s share of the benefits to be paid to Michael Jr.'s estate.

Amount of Enhanced Benefits to be Paid

The statute sets out the fo1mula for determining the amount of the enhanced benefits to be paid in cases involving a death due to mesothelioma arising out of and in the course and scope of the employee's employment. The applicable statute provides at§ 287.200.4 (3) (a) RSMo. 2014 as follows:

(3) In cases where occupational diseases due to toxic exposure are diagnosed to be mesothelioma:

'(a) For employers that have elected to accept mesothelioma liability under this subsection, an additional amount of three hundred percent of the state's average weekly wage for two hundred twelve weeks shall be paid by the employer ....

§ 287.200 RSMo. 2005 and as amended effective with January 1, 2014.

Thus, in Mr. Landis' case, the enhanced benefits shall be based on 300 percent of the state's average weekly wages for 212 weeks. Mr. Landis, the deceased employee was diagnosed with mesothelioma on November 8, 2017. Per the statute and the Division's chart for detennining the

handicapped may collect total death benefits under§ 287.240. Mr. Landis was not survived by a spouse or any children able to collect total death benefits under the statute.

12 The statute provides immunity from suit in a civil action for toxic exposure cases if the employer accepts liability for enhanced benefits.

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average weekly wage, 105 percent of the state average weekly wage on November 8, 2017 was $923.01 per week.

Therefore, the state's average weekly wage as of November 8, 2017 was $879.06 per week. Three hundred percent of the state's average weekly wage as of November 8, 2017 was $2,637.18 per week. The 212 weeks as set out in the statute at $2,637.18 per week equals $559,082.16.

CMH is ordered to pay $559,082.16 in enhanced benefits. As noted above, if Michael Landis, Jr. predeceased his father who died on June 5, 2018, the entire $559,082.16 shall be paid to Christopher Landis. If Michael died subsequent to his father's death on June 5, 2018 but prior to June 20, 2018 the date of the affidavit filed by Christopher stating that he was the only surviving son of Michael Landis, the $559,082.16 shall be paid in an equal amount to Michael Jr. and Christopher with Michael Jr. 's share paid to his estate.

Medical Benefits

The statute provides at§ 287.140 RSMo. 2005 provides in pertinent parts as follows:

287.140. Employer to provide medical and other services, transportation, artificial devices, reactivation of claim - duties of health care providers -refusal of treatment, effect - medical evidence - division, commission responsibilities - notice to health care provider of workers' compensation claim, contents, effect - use of employee leave time. - 1. In addition to all other compensation paid to the employee under this section, the employee shall receive and the employer shall provide such medical, surgical, chiropractic, and hospital treatment, including nursing, custodial, ambulance and medicines, as may reasonably be required after the injury or disability, to cure and relieve from the effects of the injury ...

§ 287.140 RSMo. 2005.

Thus, the employer is liable for all reasonable and necessary treatment needed to cure and relieve the employee from the effects of his injury on the job. Here, Mr. Landis received treatment for his mesothelioma. 13 He had several medical consultations, several medical procedures, a

13 CMH argued in its brief that Claimant presented no evidence that the treatment was reasonable and necessary and the charges fair and reasonable. Dr. Shen provided testimony that the treatment was fair and reasonable. Also, Claimant attached affidavits to the medical bill wherein the affiants attested to the reasonableness of the charges. In addition, the Missouri Supreme Court has loosened the standard for proving liability for medical bills. In Martin v. Mid-America Farm Lines, Inc., 769 S.W.2d 105 (Mo. ban 1989) there was a dispute between the employee and the employer over liability for medical bills. The Missouri Supreme Court found that once the employee submitted the medical bills into evidence and testified that the treatment upon which the bills were based was the result of the injury on the job and that the bills related to the professional services rendered as shown by the medical bills in evidence, the burden of proof shifted to the employer to prove that the treatment was not reasonable and necessary and that the charges for the treatment were not fair and reasonable. Mr. Landis died within 7 months of his diagnosis and prior to the hearing. Other than his testimony at the hearing, his case was virtually synonymous with the facts in Martin. The bills were submitted into evidence in Mr. Landis' case and the itemized bills and Dr. Shen's testimony showed that the treatment resulted from the occupational disease. The itemized charges also showed that the bills were related to the professional services rendered. CMH chose to base its entire defense in the case on the argument that it had no liability on a causation and prevailing

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biopsy and his diabetes had to be monitored closely during the treatment. After his biopsy and mesothelioma diagnosis, Mr. Landis required treatment and he had chemotherapy. He died on June 5, 2018.

Claimant submitted medical bills totaling $237,575.66 for Mr. Landis' medical treatment. Centerpoint Medical Center's charges were $99,296.39. Midwest Heart and Vascular Specialists' charges were $5,495.00. St. Luke's East Hospital's charges were $130,022.77. Midwest Oncology bills were $2,862.00. Claimant also submitted affidavits with the medical bills stating that the charges were reasonable.

Dr. Shen, a pulmonologist, noted that in his practice he diagnosed and managed the care of mesothelioma patients. He stated that Mr. Landis' bills were consistent and appropriate for the evaluation and management of Mr. Landis' pleural disease and pulmonary symptoms with thoracentesis and pneumothorax.

Dr. Shen's opinion was credible. The medical records, Dr. Shen's opinion, and the affidavits were sufficient to meet Claimant's burden of proof as to the reasonableness and necessity of the medical treatment and the reasonableness and fairness of the charges, except as set out below.

There were three charges from St. Luke's Hospital which were not adequately addressed to prove CMH's liability for the bills. The three charges were for a CT scan of Mr. Landis' pelvis in the amount of$6,903.00; an MRI scan of his cervical spine in the amount of$4,662.00, and gait training in the amount of $177.00. There was no showing that the $11,742 in charges for those treatments at St. Luke's Hospital constituted reasonable and necessary treatment for Mr. Landis' mesothelioma of his right lung.

Thus, Claimant proved that CMH was liable for $225,833.66 for the charges submitted by the medical providers. ($237,575.66 minus $11,742.00 = $225,833.66). CMH is ordered to pay that amount to Claimant. CMH is also ordered to pay the $5,000.00 burial allowance allowed in the statute.

~~;~~4~~~ Administrative Law Judge

Division of Workers' Compensation

factor theory and chose not to offer any evidence challenging the reasonableness and necessity of the treatment or the fairness of the charges. See also Metcalf v. Castle Studios, 946 S.W.2d 282 (Mo. App. W.D. 1997) where the Court noted that the employer made no effort to challenge the bills and found liability of the employer for the medical bills on the basis of the standard as set out in Martin. CMH is liable for those bills as set out later in the award.

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