              SUPREME COURT OF MISSOURI
                                       en banc
VINCENT HEGGER (DECEASED), et al., )                          Opinion issued February 19, 2020
                                   )
                  Appellants,      )
                                   )
v.                                 )                          No. SC97993
                                   )
VALLEY FARM DAIRY COMPANY, et al., )
                                   )
                   Respondents.    )

APPEAL FROM THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

        The children of deceased employee Vincent Hegger (Claimants) appeal from a

decision of the labor and industrial relations commission denying their claim for enhanced

mesothelioma benefits under section 287.200.4(3)(a) of the workers’ compensation law. 1

Because Valley Farm did not “elect to accept mesothelioma liability,” Claimants are not

entitled to the enhanced benefit. The commission’s decision is affirmed.

                                       Background

        Vincent Hegger worked for Valley Farm Dairy Company from 1968 until 1984.

Valley Farm maintained a workers’ compensation insurance policy covering its entire




1
    Statutory references are to RSMo Supp. 2013 unless noted otherwise.
liability for occupational disease during Hegger’s employment. Valley Farm ceased

operations in 1998.

      Hegger’s employment with Valley Farm consisted mainly of servicing industrial

machinery. This work exposed him to asbestos gaskets, asbestos insulation, and other

products capable of producing inhalable asbestos fibers. Hegger was diagnosed in 2014

with mesothelioma caused by toxic exposure to asbestos during his employment with

Valley Farm. He died from the disease in 2015.

      Prior to his death, Hegger and his two adult children filed a claim for workers’

compensation benefits. Section 287.200.4(1) provides:

      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:
         (1) 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[.]

In accordance with subdivision 287.200.4(1), Claimants specifically sought enhanced

benefits under subdivision 287.200.4(3)(a) of “an additional amount of three hundred

percent of the state’s average weekly wage for two hundred twelve weeks.” 2 Following a



2
   The commission’s decision provides, “The parties stipulated the only benefits at issue
are the ‘enhanced benefits’ in § 287.200.4(3).” The record does not make it clear whether
this is because the parties already have stipulated to or otherwise paid the amounts due
under section 287.200.4(1) or whether, for reasons not in the record, those amounts are not
sought. In any event, as the claim for these regular benefits was not put before the
commission, it is not before this Court on appeal of the commission’s decision. The Court
takes no position whether Claimants would be entitled to the standard benefits as provided
in this provision.
                                            2
hearing, an administrative law judge denied the claim. Claimants appealed to the labor and

industrial relations commission, which affirmed the denial of benefits. The commission

held an employer that ceased operations 16 years before section 287.200.4(3)(a) took effect

could not have elected to accept enhanced liability under that section and Claimants,

therefore, were not entitled to recover the enhanced benefit. Claimants appealed the

commission’s decision to the court of appeals. This Court granted transfer after opinion

by the court of appeals pursuant to Rule 83.04. 3

                                   Standard of Review

        This Court reviews the commission’s decision to determine whether it is “supported

by competent and substantial evidence upon the whole record.” Mo. Const. art. V, § 18.

“A decision of the Commission will be disturbed only if (1) the [c]ommission acted without

authority or in excess of its authority; (2) the award was procured by fraud; (3) the facts do

not support the award; or (4) there was not sufficient, competent evidence to justify the

award.”     Accident Fund Ins. Co. v. Casey, 550 S.W.3d 76, 79 (Mo. banc 2018);

§ 287.495.1(1)-(4), RSMo 2000. The interpretation of the workers’ compensation law is a

question of law that is reviewed de novo. Dickemann v. Costco Wholesale Corp., 550

S.W.3d 65, 67 (Mo. banc 2018).

                                          Analysis

        When applicable, Missouri’s workers’ compensation law provides the exclusive

remedy by which injured workers may seek to recover benefits for injuries caused by



3
    References are to Missouri Supreme Court Rules (2019) unless noted otherwise.
                                              3
accidents suffered in the course of their employment. § 287.120.2. Prior to 2014, there

was confusion among the courts over whether the exclusivity provisions of the workers’

compensation law also applied to occupational diseases. Compare State ex rel. KCP&L

Greater Mo. Operations Co. v. Cook, 353 S.W.3d 14, 18-19 (Mo. App. 2011) (holding the

exclusivity provisions were limited to injuries or death caused by an “accident” and

occupational diseases do not arise out of an “accident”), with Peters v. Treasurer of Mo.,

404 S.W.3d 322, 327 (Mo. App. 2012) (holding the term “injury” in the Act encompassed

occupational diseases).

       The general assembly amended the workers’ compensation law in 2013 to provide

the exclusive remedy for occupational diseases caused by toxic exposure in the workplace

in some instances. § 287.200.4(3)(b). The amended statute provides:

       (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. Employers
      that elect to accept mesothelioma liability under this subsection may do
      so by either insuring their liability, by qualifying as a self-insurer, or by
      becoming a member of a group insurance pool. A group of employers may
      enter into an agreement to pool their liabilities under this subsection. If such
      group is joined, individual members shall not be required to qualify as
      individual self-insures. Such group shall comply with section 287.233. In
      order for an employer to make such an election, the employer shall provide
      the department with notice of such an election in a manner established by the
      department. The provisions of this paragraph shall expire on December 31,
      2038.

§ 287.200.4(3)(a) (emphasis added). Employers that elect to accept enhanced liability

under this subsection are not subject to civil liability for occupational disease caused by

                                             4
toxic exposure. See § 287.120.2. But if an employer does not elect to accept enhanced

mesothelioma liability, “then the exclusive remedy provisions under section 287.120 shall

not apply to such liability.” § 287.200.4(3)(b).

       A. Valley Farm could not elect to accept enhanced liability

       This case requires the Court to determine whether a now-defunct employer can

“elect to accept mesothelioma liability” under a statute that did not take effect until 16

years after the company ceased operations. Claimants argue the commission erred in

determining Valley Farm did not elect to accept liability for the enhanced benefit.

Claimants point to section 287.200.4(3)(a), which provides an employer may elect to

accept enhanced mesothelioma liability by “insuring their liability.” Claimants and the

dissenting opinion argue that, because Valley Farm maintained an insurance policy that

insured its entire workers’ compensation liability during the time it employed Hegger, then

Valley Farm elected to accept mesothelioma liability under the plain language of the

statute. The commission rejected this argument, finding that electing to accept enhanced

liability under section 287.200.4(3)(a) requires employers to take affirmative action with

respect to the enhanced benefit and that simply maintaining a workers’ compensation

insurance policy, which was secured prior to 2014 and did not contemplate coverage for

the enhanced benefit, was insufficient. Claimants and the dissenting opinion contend the

commission erred in this respect, arguing the plain language of the statute allows recovery




                                             5
of the enhanced benefit so long as the employer at the time of last exposure 4 simply

maintained an insurance policy that insured the company’s entire liability for occupational

disease.

       The commission did not err in finding that electing to accept enhanced

mesothelioma liability under section 287.200.4(3)(a) requires an affirmative act by the

employer. The term “elect” is the operative verb in section 287.200.4(3)(a), but it is not

defined in the workers’ compensation law. 5 When a term is not defined by statute, this

Court will give the term its “plain and ordinary meaning as derived from the dictionary.”

Mo. Pub. Serv. Comm’n v. Union Elec. Co., 552 S.W.3d 532, 541 (Mo. banc 2018).

       The dictionary defines the term “elect” to mean “to make a selection” or “to

choose.” Webster’s New Int’l Dictionary 731 (3d ed. 2002). Both selecting and choosing

require an affirmative act by the one making the selection or doing the choosing. Giving

these definitions their plain and ordinary meaning in the context of section 287.200.4(3)(a)

indicates the legislature intended to require employers to take some affirmative action with



4
   “Section 287.063.2, deemed the ‘last exposure rule,’ provides the ‘employer liable for
[workers’ compensation benefits] shall be the employer in whose employment the
employee was last exposed to the hazard of the occupational disease.’” Casey, 550 S.W.3d
at 80 (quoting § 287.063.2).
5
  Claimants focus on the term “insuring” in section 287.200.4(3)(a) (“Employers that elect
to accept mesothelioma liability under this subsection may do so by . . . insuring their
liability.” (emphasis added)). Claimants argue the term “insuring” should control over the
term “elect.” But Claimants’ reliance on the term “insuring” is misplaced because that
term does not operate as a verb in section 287.200.4(3)(a). It stands instead as a gerund,
the noun form of the verb “to insure,” which operates as the object of the preposition “by.”
See SSM Cardinal Glennon Children’s Hosp. v. State, 68 S.W.3d 412, 416 (Mo. banc
2002); see also Webster’s New Int’l Dictionary 952 (3d ed. 2002). The operative verb—
the action the employer must take to accept enhanced liability—is “elect.”
                                             6
respect to the enhanced benefits to accept enhanced mesothelioma liability. It is axiomatic

that a business entity that no longer exists cannot affirmatively select or choose to do

anything. Because Valley Farm ceased operations in 1998, and the enhanced benefit did

not exist until 2014, Valley Farm could not affirmatively elect to accept liability for the

enhanced benefit under section 287.200.4(3)(a).

       B. Casey does not support Claimants’ position

       Claimants point to this Court’s decision in Casey in support of their position. In

Casey, employee Casey worked for a construction contractor from 1984 to 1990. 550

S.W.3d at 78. This work exposed Casey to asbestos in various forms. Id. Casey was

diagnosed with mesothelioma in 2014 and eventually died from the disease. Id. at 79.

Before his death, Casey filed a claim for workers’ compensation benefits against his last

employer. Id. That employer was still in business when Casey filed his claim. See id. At

the time of Casey’s claim, the employer was covered under a policy of insurance that

included an endorsement titled “Missouri Notification of Additional Mesothelioma

Benefits.” Id. That endorsement provided in pertinent part:

       Section 287.200.4, subdivision (3), of the Missouri Revised Statutes provides
       additional benefits in the case of occupational diseases due to toxic exposure
       that are diagnosed to be mesothelioma and result in permanent total disability
       or death. Your policy provides insurance for these additional benefits.

Id. (emphasis added). This Court held, “Employer elected to accept mesothelioma liability

under section 287.200.4 . . . by selecting a policy that explicitly contemplated enhanced

compensation for mesothelioma claims.” Id. at 80.




                                             7
       It is true that this Court, in Casey, held the employer elected to accept enhanced

mesothelioma liability under section 287.200.4 by insuring against such liability. But the

Court reached this result because the employer affirmatively purchased insurance that

expressly contemplated coverage for the enhanced benefit after section 287.200.4(3)(a)

took effect. See id. The same is not true of Valley Farm. Although Valley Farm was

covered by a policy of insurance against its “entire” workers’ compensation liability during

Hegger’s employment, Valley Farm’s policy did not expressly contemplate coverage for

the enhanced benefit provided by section 287.200.4(3)(a). Indeed, Valley Farm’s policy

could not have contemplated such coverage because that enhanced benefit did not exist

until 16 years after Valley Farm ceased operations. See id. (explaining, “Missouri’s

workers’ compensation law was amended in 2014 to provide enhanced compensation for

individuals diagnosed with occupational diseases such as mesothelioma”).

       C. Now-defunct employers are not deemed to have elected to accept enhanced
          liability under section 287.200.4(3)(a) solely by virtue of having workers’
          compensation insurance at the time of an employee’s last exposure to
          asbestos

       Claimants urge this Court to find that section 287.200.4(3)(a) creates a “default”

rule in claims against defunct employers facing claims for workers’ compensation benefits

for occupational disease caused by toxic exposure. Claimants argue defunct employers

should be deemed to have elected to accept liability for the enhanced benefit provided by

section 287.200.4(3)(a) so long as the employer insured its entire workers’ compensation

liability at the time of the employee’s last exposure. Accepting Claimants’ position,

however, would require a reading of section 287.200.4(3)(a) unsupported by the plain


                                             8
language of this provision. In fact, the plain language of section 287.200.4(3)(a) causes

employers to default to the opposite position because electing to accept enhanced liability

requires employers to take affirmative action. “This Court’s primary rule of statutory

interpretation is to give effect to legislative intent as reflected in the plain language of the

statute at issue.” Peters v. Wady Indus. Inc., 489 S.W.3d 784, 789 (Mo. banc 2016).

       Section 287.200.4(3)(a) speaks in terms of employers “that have elected to accept”

enhanced liability for mesothelioma under this subsection.           This plain language, as

explained above, requires employers to make an affirmative election under section

287.200.4(3)(a) to accept liability for the enhanced benefit. If the employer does not make

such an election, the employer has rejected enhanced mesothelioma liability under the plain

language of the statute. The default position under section 287.200.4(3)(a), therefore, is

that employers reject enhanced mesothelioma liability if they do not affirmatively elect to

accept it. In that default position, “the exclusive remedy provisions under section 287.120

shall not apply to such liability.” § 287.200.4(3)(b). An Employer’s default status under

section 287.200.4(3)(a) changes only if the employer affirmatively elects to accept the

enhanced liability.

       The Court, accordingly, holds now-defunct employers facing claims for workers’

compensation benefits for mesothelioma caused by toxic exposure are not deemed to have

elected to accept enhanced liability under section 287.200.4(3)(a) solely by virtue of having

workers’ compensation coverage at the time of an employee’s last exposure to asbestos.

This Court holds the plain language of section 287.200.4(3)(a) operates such that

employers that do not make the requisite affirmative election to accept liability for the

                                               9
enhanced benefit are deemed to reject such liability under 287.200.4(3)(b) and thereby are

exposed to civil liability outside the context of the workers’ compensation statutes.

                                        Conclusion

       Because Valley Farm ceased operations 16 years before the legislature created the

enhanced benefit provided by section 287.200.4(3)(a), Valley Farm could not affirmatively

elect to accept liability for the enhanced benefit as required under the statute. Claimants

are not entitled to the enhanced benefit because Valley Farm did not elect to accept such

liability. The commission’s decision is affirmed.



                                                        ___________________
                                                        W. Brent Powell, Judge




Wilson, Russell, Stith, and Fischer, JJ., concur;
Draper, C.J., dissents in separate opinion filed;
Breckenridge, J., concurs in opinion of Draper, C.J.




                                            10
            SUPREME COURT OF MISSOURI
                                       en banc
VINCENT HEGGER (DECEASED), et al., )
                                   )
                  Appellants,      )
                                   )
v.                                 )                          No. SC97993
                                   )
VALLEY FARM DAIRY COMPANY, et al., )
                                   )
                   Respondents.    )

                                DISSENTING OPINION

       I respectfully dissent from the principal opinion. I believe Valley Farm Dairy

Company (hereinafter, “Valley Farm”) made an affirmative decision to purchase

workers’ compensation insurance, which, as a matter of law, covered future occupational

injuries. Once Vincent Hegger (hereinafter, “Hegger”) suffered his occupational injury,

his compensation should have been that to which he was statutorily entitled at the time of

his injury rather than when he was exposed to asbestos. I would reverse the Labor and

Industrial Relations Commission’s (hereinafter, “Commission”) decision and remand this

case for further proceedings.
       Hegger began working for Valley Farm in 1968 and remained in its employ until

sometime in 1984. During the course of his employment with Valley Farm, Hegger was

exposed to asbestos.

       As required by law, Valley Farm maintained workers’ compensation insurance.

Valley Farm asserts the insurance it procured covered its entire liability for any

employee’s future occupational disease. During Hegger’s employment with Valley

Farm, there were at least two different insurance companies providing Valley Farm

coverage.

       Hegger was diagnosed with mesothelioma in 2014 due to his regular, repeated

exposure to asbestos at Valley Farm. 1 Hegger and two of his children filed a claim for

workers’ compensation benefits. Hegger died in 2015 due to his occupational injury.

       The principal opinion denies Hegger enhanced mesothelioma benefits, finding

Valley Farm could not elect mesothelioma liability pursuant to section 287.200.4(3)(a). 2

I disagree.

       Every employer is required to insure its entire liability under the workers’

compensation law. Section 287.280.1. To meet its obligation, Valley Farm maintained

workers’ compensation insurance through multiple insurance companies during Hegger’s


1
  Mesothelioma is an asbestos-related disease, which is a rare and aggressive form of
cancer. Asbestos-related diseases have a long latency period, which typically take
decades to develop and are traceable to workplace exposure. Exposed workers also
endanger their family members because the asbestos fibers remain on clothing and tools
brought home after the work day. Due to this exposure, family members deal with
secondhand asbestos exposure concerns and bear an elevated risk of developing asbestos-
related diseases.
2
  Statutory references are to RSMo Supp. 2013, unless otherwise indicated.
                                             2
employment. Pursuant to the last exposure rule, Valley Farm would have procured

insurance policies that would insure it “regardless of the length of time” wherein an

occupational disease would manifest and be compensable. See Section 287.063.2, RSMo

Supp. 1983.

       While Hegger’s date of last exposure to asbestos at Valley Farm is not in the

record, it is undeniable his date of injury was in 2014, when he was diagnosed with

mesothelioma. Compensation under the workers’ compensation law is not made when a

claimant is last exposed to asbestos, but rather when the claimant has been injured and

when that injury is diagnosed. McGhee v. W.R. Grace & Co., 312 S.W.3d 447, 456 (Mo.

App. S.D. 2010). “Exposure to disease-producing conditions is not synonymous with

contraction of the disease.” Tunstill v. Eagle Sheet Metal Works, 870 S.W.2d 264, 272

(Mo. App. S.D. 1994).

       Currently, the workers’ compensation law provides specific, enhanced

compensation for workers who are injured due to mesothelioma. Section 287.200.4(3)(a)

sets forth three exclusive means to demonstrate an employer “elect[s] to accept”

mesothelioma liability. To do so, an employer may either: (1) insure its liability;

(2) qualify as a self-insurer; or (3) become a member of a group insurance pool. Id.

       Valley Farm knew it could be liable for a future occupational disease, and it

affirmatively purchased insurance to mitigate its future liability. As an injured employee,

Hegger should be provided compensation for which he is statutorily entitled to at the time

of his injury.



                                             3
      I would find Valley Farm made an affirmative election to provide Hegger

workers’ compensation coverage at the point in the future he was injured. Hegger should

be provided enhanced mesothelioma benefits. Accordingly, I would reverse and remand

the Commission’s decision. Upon remand, I would instruct the Commission to determine

which insurer provided Valley Farm coverage when Hegger was last exposed to asbestos.



                                                     _________________________
                                                     GEORGE W. DRAPER III
                                                     CHIEF JUSTICE




                                           4
