Court of Appeals of Missouri, Eastern District, Third Division
JAMES C. LAMBRICH, and DEBRA LAMBRICH, Appellants,
DWIGHT KAY et al., Respondents.
from the Circuit Court of St. Louis County Honorable Barbara
T. Quigless, PJ
C. Lambrich ("Lambrich") and his wife, Debra
Lambrich,  filed a petition against
Cassens Transport Company ("CTC" or
"Respondent"),  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
Lambrich's Injuries and Other Relevant Factual
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
Lambrich completed a workers' compensation injury report.
Tina Litwiller ("Litwiller"), the adjuster
responsible for handling CTC's workers' compensation
claims,  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
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,  Litwiller
believed the restrictions fit within Lambrich's position
as a service porter. 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.
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
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
Lambrich's Workers' Compensation Claims, the
Parties' Pre-Trial Motions, and Other Relevant Procedural
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 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.
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. 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,  the exclusivity provision, of the Missouri
Workers' Compensation Law as an affirmative defense.
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.
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.
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 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."
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
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
Lambrich filed a motion to amend judgment and for new trial.
The court subsequently denied the motion. This appeal
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'
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
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).
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.
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
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