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Lambrich v. Kay

Court of Appeals of Missouri, Eastern District, Third Division

November 8, 2016

JAMES C. LAMBRICH, and DEBRA LAMBRICH, Appellants,
v.
DWIGHT KAY et al., Respondents.

         Appeal from the Circuit Court of St. Louis County Honorable Barbara Wallace

          Angela T. Quigless, PJ

          Introduction

         James C. Lambrich ("Lambrich") and his wife, Debra Lambrich, [1] filed a petition against Cassens Transport Company ("CTC" or "Respondent"), [2] alleging retaliatory discrimination against Lambrich after he filed workers' compensation claims. Following a bench trial, the court entered judgment in favor of Respondent. Lambrich appeals, arguing the trial court erred in its rulings of several pre-trial motions, and its final judgment. We affirm.

          Factual and Procedural History

         A. Lambrich's Injuries and Other Relevant Factual History

         Lambrich worked as a service porter at CTC's Fenton terminal. The duties of a service porter include servicing and fueling CTC trucks, and changing tires and oil. On April 1, 2002, Lambrich reported to Bob Cellitti ("Cellitti"), his direct supervisor, that he injured his shoulder. Cellitti took Lambrich to the hospital where he received an MRI, which revealed no abnormality. Dr. Michael Nogalski, an orthopedic specialist, examined Lambrich and returned him to full duty. On August 23, 2002, Lambrich reinjured himself. Lambrich reported the injury to Cellitti and Steven Gross ("Gross"), CTC's terminal manager, indicating he could not work because of the injury. Lambrich, however, did not complete a workers' compensation injury report. Due to the confusion over whether this was a work-related injury, Gross placed Lambrich on indefinite sick leave ("ISL").[3]

         Later, Lambrich completed a workers' compensation injury report. Tina Litwiller ("Litwiller"), the adjuster responsible for handling CTC's workers' compensation claims, [4] sent Lambrich to Dr. Nogalski. Thereafter, Dr. Nogalski excused Lambrich from work except for light duty with a 10-pound weight-lifting restriction. CTC placed Lambrich on workers' compensation status, and Lambrich received temporary total disability ("TTD") benefits.

         In September 2002, Dr. Nogalski sent a letter to Litwiller, opining Lambrich had reached maximum medical improvement ("MMI") and was released to return to work. Dr. Nogalski limited Lambrich's work to infrequent lifting of 55 pounds and frequent lifting of 35 pounds. CTC's service porter position requires the lifting of up to 60 pounds for fueling and of up to 50 pounds for tire work. After consulting Bill Molter ("Molter"), CTC's director of safety, [5] Litwiller believed the restrictions fit within Lambrich's position as a service porter.[6] On September 25, 2002, Litwiller told Lambrich to contact CTC about returning to work, and that his TTD payments would end that day. Lambrich did not return to CTC after September 2002 because he believed he could not work.

         Later, Lambrich saw Dr. Raymond Cohen and received a slip excusing him from work. When Kevin Nelson ("Nelson"), CTC's safety coordinator, received the slip, he placed Lambrich on ISL as of October 1, 2002 because of the apparent medical disagreement regarding Lambrich's ability to work. Nelson testified CTC placed injured employees who had filed claims on ISL if there were conflicting medical opinions as to whether the employee was released to return to work.

         Thereafter, CTC authorized Lambrich to be placed under surveillance. Lambrich was videotaped engaging in work activities at his greenhouse. Dr. Nogalski reviewed the surveillance tapes and opined that Lambrich could return to work at full duty with no restrictions. In December 2002, Dr. Nogalski reexamined Lambrich and reconfirmed he could return to work. To date, Lambrich has not returned to work at CTC and remains on ISL without pay.

         B. Lambrich's Workers' Compensation Claims, the Parties' Pre-Trial Motions, and Other Relevant Procedural Posture

         Lambrich filed two claims for his injuries with the Division of Workers' Compensation (the "Division"). A hearing was held, and the administrative law judge ("ALJ") entered Findings of Fact and Rulings of Law on May 27, 2011. The ALJ concluded Lambrich was not entitled to TTD benefits. Lambrich, however, was awarded 15% permanent partial disability ("PPD") of the left shoulder, and 5% PPD of the body as a whole for his psychiatric injuries[7] as a result of his April 1, 2002 injury. Lambrich also was awarded 12-1/2% PPD of the body as a whole for his back, and 10% PPD of the body as a whole for his psychiatric injuries as a result of his August 23, 2002 injury.

         While Lambrich's workers' compensation claims were pending, Lambrich filed his petition in this matter, alleging retaliatory discrimination. Specifically, Lambrich alleged Respondent retaliated against him for filing workers' compensation claims by placing him on ISL without pay, prematurely discontinuing his TTD benefits, requiring him to perform tasks that would aggravate his injury, and denying him seniority rights.[8] Lambrich sought damages for financial losses and psychological injuries caused by his inability to work. Respondent filed an answer and pled section 287.120.2, [9] the exclusivity provision, of the Missouri Workers' Compensation Law as an affirmative defense.

         Prior to trial, Respondent filed a motion to strike and/or dismiss a number of Lambrich's allegations, arguing they were barred by the exclusivity provision. Thereafter, the court ordered the allegations of inadequate medical treatment in paragraphs 6(g)(1), 6(g)(6), and 6(m), and the allegations of improper investigation and administration of the compensation claims in paragraphs 6(h), 6(i), 6(j), 6(k), and 6(1) stricken as being barred by the exclusivity defense. However, the court did not strike the allegations regarding Lambrich's discrimination claim.

         Respondent also filed a motion for partial summary judgment on Lambrich's claim that CTC discriminated against him by denying him seniority rights to which he was entitled. The court granted Respondent's motion, finding Lambrich failed to produce evidence that he had a seniority right to choose his work assignments as a service porter.[10]

         In addition, Lambrich filed motions to compel deposition answers from Litwiller and Molter. During the depositions, Lambrich's counsel sought answers regarding Lambrich's workers' compensation claims. Respondent objected on the grounds of attorney-client privilege and work product privilege. The trial court heard the motions[11] and denied them "based on [Defendant's] representations that the subject matter of the questions discussed in these motions is not relevant. Parties can revisit this ruling, if necessary, based upon the outcome of future substantive motions." [12]

         Thereafter, during a bench trial, the court heard the merits of Lambrich's case. The evidence adduced at trial consisted of numerous exhibits, portions of deposition testimonies, and live testimony from Lambrich, Cellitti, Nelson, Litwiller, Molter, and Gross. The court weighed and considered the evidence, and the relative credibility of the witnesses. On February 25, 2015, the court entered its Findings of Fact, Conclusions of Law, Order and Judgment in favor of Respondent.

          First, the trial court found the issues of unpaid TTD benefits and psychological injures were the same as those previously before the Division. Thus, the court found Lambrich's claims of retaliatory discrimination and injury against Respondent were barred by the exclusivity provision. Second, the court found even if the exclusivity defense did not apply, Lambrich failed to prove Respondent either discharged or discriminated against him as required by section 287.780.[13]

         Thereafter, Lambrich filed a motion to amend judgment and for new trial. The court subsequently denied the motion. This appeal follows.

         Points on Appeal

         Lambrich asserts five points on appeal. In Point I, Lambrich argues the trial court erred in granting summary judgment on the claim that he was deprived of seniority rights after he exercised his workers' compensation rights. In Point II, Lambrich argues the trial court erred in granting Respondent's motion to strike and/or dismiss his allegations based on the exclusivity defense because a pre-trial dismissal based on the affirmative defense of workers' compensation exclusivity can only be entered pursuant to a motion for summary judgment. In Point III, Lambrich argues the trial court erred in entering judgment for Respondent by identifying motives for Respondent's conduct that were not in evidence. In Point IV, Lambrich argues the trial court erred in denying his motion to compel Respondent's manager to answer deposition questions regarding Respondent's motive in its treatment of Lambrich based on an alleged lack of relevance. In Point V, Lambrich argues the trial court erred in holding, as a matter of law, that his allegations that Respondent retaliated against his exercise of workers' compensation rights by placing him on ISL without pay were barred by workers' compensation exclusivity.

          Discussion

         I. Point One

         In his first point, Lambrich argues the trial court erred in granting summary judgment on his claim that he was deprived of seniority rights after he exercised his workers' compensation rights. Specifically, Lambrich argues (1) the court ignored his more definitive testimony that he had a right to choose his job assignments; (2) the trial court's order did not address the testimony of James Ostman ("Ostman"), CTC's shop manager; and (3) the court failed to give him the benefit of all reasonable inferences.

         We review the entry of summary judgment de novo. ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). "As the trial court's judgment is founded on the record submitted and the law, an appellate court need not defer to the trial court's order granting summary judgment." Id. We review the record in the light most favorable to the non-moving party. Zafft v. Eli Lilly & Co., 676 S.W.2d 241, 244 (Mo. banc 1984). We accord the non-movant the benefit of all reasonable inferences from the record. Martin v. City of Washington, 848 S.W.2d 487, 489 (Mo. banc 1993).

         To prevail on a motion for summary judgment, a defending party, such as Respondent, must establish any one of the following: (1) facts that negate any one of the claimant's elements; (2) the non-movant, after an adequate period of discovery, has not been able to produce, and will not be able to produce, evidence sufficient to allow the trier of fact to find the existence of any one of the claimant's elements; or (3) there is no genuine dispute as to the existence of each of the facts necessary to support the movant's properly pleaded affirmative defenses. ITT Commercial Fin. Corp., 854 S.W.2d at 381. Once the moving party has established a right to judgment as a matter of law, the burden shifts to the non-movant to demonstrate there is a genuine dispute as to the facts underlying the movant's right to judgment. Id. at 381-82.

         Among other allegations, Lambrich alleged Respondent discriminated against him by "denying [Lambrich] seniority rights to which he was entitled, which would have enabled him to choose job assignments that would not have aggravated his existing injuries or otherwise cause him further injury." Thereafter, Respondent moved for summary judgment on this claim. Specifically, Respondent argued Lambrich neither set forth any evidence that he had the right to choose his specific job assignments nor did he produce any evidence that he asserted such a right, which was denied to him. Respondent further argued even if such a right did exist and Lambrich was denied that right, there is no evidence that any such denial was exclusively caused by his filing of a compensation claim.

         To support his claim, Lambrich relied on the following portion of his deposition testimony:

Q: In terms of seniority, what - you - you've described - let me back up a moment.
I know there was a - a movement to give you seniority over ...

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