                        In the Missouri Court of Appeals
                                Eastern District
                                             DIVISION THREE

JAMES C. LAMBRICH, and                                   )         No. ED103128
DEBRA LAMBRICH,                                          )
                                                         )         Appeal from the Circuit Court of
        Appellants,                                      )         St. Louis County
                                                         )
vs.                                                      )
                                                         )
DWIGHT KAY et al.,                                       )         Honorable Barbara Wallace
                                                         )
        Respondents.                                     )         Filed: November 8, 2016
                                                         )

                                                  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.




1
 Debra Lambrich joined the lawsuit with a claim for loss of consortium. However, that claim is not before us.
2
 In addition to Respondent, Lambrich’s petition named Dwight Kay, Crawford & Company, and Tina Litwiller as
defendants in the lawsuit. The trial court entered judgment in favor of all the defendants. On appeal, Lambrich only
contests the judgment in favor of Respondent.

                                                         1
                                       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



3
  ISL is an administrative status assigned to CTC employees who are unable to work either (1) because they have a
personal injury or illness unrelated to work that prevents them from working or (2) because of an unresolved medical
disagreement about an employee’s ability to return to work that has arisen in a workers’ compensation claim.
Placement on ISL protects an employee’s position and seniority in the event the employee returns to work.
4
  Litwiller was an employee of Crawford & Company. CTC retained Crawford & Company to handle its workers’
compensation claims as a third-party administrator.

                                                         2
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



5
  Molter also managed CTC’s workers’ compensation program. Molter monitored and oversaw Litwiller’s handling
of the claims. Neither Cellitti, Gross, nor Nelson made decisions regarding claims filed against CTC.
6
  An employee who files a workers’ compensation claim may return to work with restrictions if they fit within the
employee’s job description.

                                                       3
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




7
  The ALJ concluded Lambrich had a history of psychiatric problems. In late 2002 and early 2003, Lambrich suffered
from depression and anxiety because of pain in his shoulder and his back problems. The ALJ concluded Lambrich has
been under regular psychiatric treatment since 2003 and takes anti-depressant drugs to control his symptoms.
8
  Since Lambrich only appeals the trial court’s judgment in favor of Respondent, we recite the facts pertinent to this
appeal.
9
  All further statutory references are to RSMo 2000, unless otherwise indicated.
Section 287.120.2 RSMo Cumm.Supp. 2007 provides:
          The rights and remedies herein granted to an employee shall exclude all other rights and remedies
          of the employee, his wife . . . at common law or otherwise, on account of such accidental injury or
          death, except such rights and remedies as are not provided for by this chapter.

                                                          4
6(h), 6(i), 6(j), 6(k), and 6(l) 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.




10
   Additional arguments and evidence relevant to Respondent’s motion to strike and/or dismiss and motion for partial
summary judgment will be set out as needed in sections IV and I, respectively, of this opinion.
11
   A transcript from the hearing conducted on Lambrich’s motions to compel was not included in the record on appeal.
12
   Additional arguments and evidence relevant to Lambrich’s motions to compel will be set out as needed in section
III of this opinion.

                                                         5
        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.



13
  Section 287.780 provides: “No employer or agent shall discharge or in any way discriminate against any employee
for exercising any of his rights under this chapter. Any employee who has been discharged or discriminated against
shall have a civil action for damages against his employer.”

                                                        6
                                             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




                                                  7
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 LaGrant Suggs.
       A: That’s correct.
       Q: Okay. And what – what benefit does that provide you, to have a one day
       seniority over him?
       A: Well, that would give me rights to choose jobs.
       Q: Okay.
       A: I guess it would give me rights to choose jobs. I don’t know. When Bob Cellitti
       came out to the shop, he just assigned jobs.

Lambrich also relied on the deposition testimony of Ostman:

       Q: Okay. Among the service porters, if you have two to three who are working on
       a given shift, how do they decide who gets to do what job?
       A: They usually by seniority will – if a guy likes fueling, he’ll take fueling
       initiatives because he’s got more seniority than somebody that doesn’t – he doesn’t
       want to service the trucks or doesn’t want to do tire work, its . . .
       Q: If the two or three service porters worked out amongst themselves that one
       would take care of the tire work and the other one would take care of the rest of the
       work, would there be any restriction on that?
       A: No.



                                                 8
In order to defeat Respondent’s summary judgment motion, Lambrich was required to establish

Respondent had an enforceable policy regarding seniority rights. In light of the above testimony

and the arguments on appeal, we agree with the trial court’s conclusion that Lambrich failed to

produce evidence that he had a vested seniority right.

       The court primarily based its determination on Lambrich’s testimony, concluding, in

pertinent part:

       The plaintiffs cited to . . . Lambrich’s deposition for the proposition that “if he had
       been given proper seniority status, the practice at the Fenton, Missouri terminal
       would have allowed him to choose job assignments.” Mr. Lambrich did not testify
       to that fact. Instead, Mr. Lambrich said he guessed it would give him rights, but he
       did not know.

On appeal, Lambrich argues the trial court placed too much emphasis on his statement, “I guess,”

while ignoring his more definitive testimony, “that would give me rights to choose jobs.” However,

we find Lambrich’s use of the phrase “I guess” significant. Not only does it highlight Lambrich’s

uncertainty as to the accuracy of his statement, but it also undercuts his argument that he had an

enforceable seniority right. To survive summary judgment, Lambrich must set forth more evidence

than mere speculation. See Stanbrough v. Vitek Solutions, Inc., 445 S.W.3d 90, 99 (Mo. App. E.D.

2014) (stating reliance only upon mere doubt and speculation is not enough to create an issue of

material fact). Moreover, Lambrich, by his own admission, testified he did not know what benefits,

if any, he was entitled to because Cellitti assigned jobs to the service porters. We find no evidence

in the record to suggest Cellitti either assigned jobs based on a formal seniority policy or even took

seniority into account when doing so.

       In addition, Lambrich argues Ostman’s testimony provides evidence that he had a seniority

right to choose his work assignments. However, Lambrich reads Ostman’s testimony too broadly.

Ostman testified the service porters acknowledged seniority amongst themselves when dividing



                                                  9
the work. This may demonstrate comradery, but it does not establish proof of an enforceable

seniority right. Thus, we find Ostman’s testimony is insufficient to create a genuine dispute.

          While Lambrich correctly argues we review the record in the light most favorable to the

non-moving party and accord the non-movant the benefit of all reasonable inferences from the

record, we will not find the existence of a genuine issue of fact based merely on “conjecture, theory

and possibilities.” ITT Commercial Fin. Corp., 854 S.W.2d at 378. Lambrich failed to meet his

burden of demonstrating a genuine dispute as to the facts underlying Respondent’s right to

judgment. See id. at 382.

          Therefore, we find Lambrich failed to demonstrate a genuine issue of material fact as to

his claim of seniority, and we affirm the trial court’s grant of summary judgment. Point one is

denied.

II. Point Three

          For ease of our analysis, we will address Lambrich’s remaining four points out of order. In

his third point, Lambrich argues the trial court erred in entering judgment for Respondent by

identifying motives for its conduct that were not in evidence. Specifically, that Respondent’s

conduct toward Lambrich was motivated by “mistakes and misunderstandings.” Lambrich argues

fundamental fairness requires that a plaintiff’s claim be afforded relief to prevent a defendant from

defeating a plaintiff’s claim by concealment prior to a decision, and that a plaintiff be able to

determine the opponent’s position before the trial concludes. Lambrich contends Respondent

refused to disclose any motive for its conduct in discovery or at trial, and the court identified

motives in its judgment.

          Our applicable standard of review on this point is derived from Murphy v. Carron, 536

S.W.2d 30 (Mo. banc 1976). On appeal from a judgment in a bench-tried case, this court will



                                                  10
sustain the judgment of the trial court unless there is no substantial evidence to support it, it is

against the weight of the evidence, it erroneously declares the law, or it erroneously applies the

law. Id. at 32. “Appellate courts should exercise the power to set aside a decree or judgment on

the ground that it is ‘against the weight of the evidence’ with caution and with a firm belief that

the decree or judgment is wrong.” Id.

       At trial, the court weighed and considered the evidence, and the credibility of the witnesses.

In its judgment, the court concluded:

       The Court does not find the actions of Defendants were done with animus, or intent
       to discriminate or punish. They were business decisions made similarly to those
       made routinely in these situations. Some actions might have reflected a
       misunderstanding of work requirements or a mistake, but the Court does not find
       intentional wrongdoing towards Lambrich motivated these mistakes or
       misunderstandings.

We find the trial court did not identify any motives on the part of Respondent but merely drew

reasonable inferences from the evidence presented at trial. “A trial court, functioning as a fact-

finder, can draw all reasonable inferences from the evidence presented to it and can base its

ultimate conclusions upon such reasonable inferences.” Neal v. Neal, 776 S.W.2d 861, 868 (Mo.

App. S.D. 1989). During trial, numerous exhibits were admitted, and portions of deposition

testimonies were read into evidence. Further, the court heard testimony from Cellitti, Nelson,

Litwiller, Molter, and Gross, all of whom unequivocally testified they would never punish or

discriminate against an employee for filing a workers’ compensation claim. The court found their

testimonies credible. See Frontenac Bank v. T.R. Hughes, Inc., 404 S.W.3d 272, 283–84 (Mo.

App. E.D. 2012) (finding the trial court “is in a better position not only to judge the credibility of

the witnesses and the persons directly, but also their sincerity and character and other trial

intangibles which may not be completely revealed by the record.”). As a result, the court

specifically found there was no evidence of animus, or intent to discriminate or retaliate against

                                                 11
Lambrich at all. While the court concluded Respondent’s actions “might have reflected a

misunderstanding of work requirements or a mistake,” we find this to be a reasonable inference in

light of the evidence presented at trial. Such judgments of the trial courts deserve appellate court

deference. See First Nat’l Ins. Co. of Am. v. Clark, 899 S.W.2d 520, 521 (Mo. banc 1995).

Accordingly, we find the trial court’s judgment was not against the weight of the evidence. Point

three is denied.

III. Point Four

        In his fourth point, Lambrich argues the trial court erred in denying his motion to compel

Respondent’s manager (Molter) to answer deposition questions regarding Respondent’s motive in

its treatment of him based on an alleged lack of relevance. Lambrich contends Rule 57.03 14 does

not allow a witness to refuse to answer on the basis of relevance and an employer’s motive is

always relevant in a retaliation case.

        “A trial court is vested with broad discretion in administering the rules of discovery, and

an appellate court should not disturb the rulings absent an abuse of discretion.” State ex rel. Plank

v. Koehr, 831 S.W.2d 926, 927 (Mo. banc 1992). A trial court abuses its discretion only if its order

is clearly against the logic of the circumstance, is arbitrary and unreasonable, and indicates a lack

of careful consideration. Green v. Fred Weber, Inc., 254 S.W.3d 874, 880 (Mo. banc 2008).

        Prior to trial, Lambrich deposed Litwiller and Molter, seeking answers regarding

Lambrich’s workers’ compensation claims. Respondent objected on the grounds of attorney-client

privilege and work product privilege. Thereafter, Lambrich filed motions to compel answers to the

deposition questions. The trial court held a hearing on the motions and concluded, “[T]he motions

are denied at this time and [Defendant’s] objections are sustained, based on [Defendant’s]


14
  All rule references are to Missouri Supreme Court Rules (2015) unless otherwise indicated. Rule 57.03 sets forth
the requirements for depositions upon oral examination.

                                                        12
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.”

       On appeal, Lambrich argues the trial court denied his motions to compel because it

concluded Respondent’s motive was irrelevant. Lambrich’s argument requires us to review the

record to determine what representations, if any, were made to the court during the hearing as well

as the basis for the court’s finding. Therefore, a transcript of the hearing is indispensable to our

review. See Poke v. Mathis, 461 S.W.3d 40, 42 (Mo. App. E.D. 2015). However, Lambrich did

not file a transcript of the hearing with the record on appeal.

       Rule 81.12(a) provides, “The record on appeal shall contain all of the record, proceedings

and evidence necessary to the determination of all questions to be presented . . . to the appellate

court for decision.” Lambrich did not comply with this requirement with respect to the question

he has presented for our decision. “Where no transcript is filed or exhibits are not made a part of

the record on appeal, such evidentiary omissions will be taken as favorable to the trial court’s

ruling and unfavorable to the appellant.” Saturn of Tiffany Springs v. McDaris, 331 S.W.3d 704,

712 (Mo. App. W.D. 2011) (internal citations omitted). We presume, therefore, that the transcript

of the hearing on the motions, which was not included in the record on appeal, supported the trial

court’s order. See id.

       Accordingly, we cannot conclude the trial court abused its discretion in denying

Lambrich’s motions to compel. Point four is denied.

IV. Points Two and Five

       Finally, we address Lambrich’s second and fifth points together. In his second point,

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



                                                 13
defense of workers’ compensation exclusivity can only be entered pursuant to a motion for

summary judgment.

       Prior to the Missouri Supreme Court’s decision in McCracken v. Wal-Mart Stores East,

LP, 298 S.W.3d 473 (Mo. banc 2009), defendants could raise the exclusivity provision of the

Workers’ Compensation Law as a defense in a motion to dismiss for lack of subject matter

jurisdiction. Fortenberry v. Buck, 307 S.W.3d 676, 678 (Mo. App. W.D. 2010). Thus, courts would

apply the standard of review appropriate for a motion to dismiss. Id. However, the court

subsequently clarified in McCracken that the exclusivity provision does not affect the trial court’s

subject matter jurisdiction. McCracken, 298 S.W.3d at 479. Rather, the exclusivity provision must

be raised as an affirmative defense in a motion for summary judgment “to the circuit court’s

statutory authority to proceed with resolving [the] claim.” Id. at 477 (emphasis in original); see

also Cooper v. Chrysler Group, LLC, 361 S.W.3d 60, 65 (Mo. App. E.D. 2011); Treaster v. Betts,

324 S.W.3d 487, 490 (Mo. App. W.D. 2010). Therefore, in order to grant summary judgment based

on the exclusivity provision, the court must find there is no genuine dispute as to the existence of

each of the facts necessary to support the defendant’s affirmative defense. Fortenberry, 307

S.W.3d at 679; ITT Commercial Fin. Corp., 854 S.W.2d at 381.

       However, when the applicability of section 287.120.2 “appears from the face of the

petition, a defendant can also properly file a motion to dismiss for failure to state a claim upon

which relief can be granted [see Rule 55.27(a)(6)] or for judgment on the pleadings pursuant to

Rule 55.27(b) if the affirmative defense appears from the petition and other pleadings.” Pierce v.

Zurich Am. Ins. Co., 441 S.W.3d 208, 212 (Mo. App. W.D. 2014) (internal citation omitted).

       In this case, we find Respondent properly raised the exclusivity provision in a motion to

dismiss for failure to state a claim as authorized by Pierce. Respondent moved to strike and/or



                                                14
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(l) stricken as being barred by the

exclusivity defense. However, the court did not strike the allegations regarding Lambrich’s

discrimination claim. We agree with the trial court’s ruling.

       Section 287.120.2 sets forth the exclusivity provision of the Workers’ Compensation Law,

providing:

       The rights and remedies herein granted to an employee shall exclude all other rights
       and remedies of the employee, his wife . . . at common law or otherwise, on account
       of such accidental injury or death, except such rights and remedies as are not
       provided for by this chapter.

Thus, if an injury falls within the Missouri Workers’ Compensation Law, then “recovery can be

had, if at all, only under the terms set out in the act.” Mo. Alliance for Retired Ams. v. Dep’t of

Labor and Indus. Relations, 277 S.W.3d 670, 679 (Mo. banc 2009).

       We first address the allegations of inadequate medical treatment in paragraphs 6(g)(1),

6(g)(6), and (6)(m). In paragraphs 6(g)(1) and 6(g)(6), Lambrich alleged discrimination based on

Respondent “requiring Plaintiff to perform specific tasks after being advised those tasks would

cause Plaintiff further injury or aggravate his existing injuries” and “requiring Plaintiff to return

to work after doctors had advised Defendants he had not been cleared to return to his regular job

duties.” In paragraph 6(m), Lambrich alleged, “Defendants denied medical treatment

recommended by doctors Defendants selected to evaluate Plaintiff.”

       While Lambrich argues Respondent’s actions were discriminatory and outside the purview

of the Division, we disagree and find Felts v. Ford Motor Co. instructive. In Felts, Felts sued Ford,

his employer, alleging a violation of his rights under section 287.780 to be free of retaliation and

                                                 15
discrimination after he filed a workers’ compensation claim. Felts v. Ford Motor, Co., 916 S.W.2d

798, 799 (Mo. App. W.D. 1995). Felts alleged Ford required him to perform job tasks he was

medically unable to perform, which exceeded his doctor’s restrictions, and interfered with medical

treatment for his work-related injuries. Id. at 800. However, the appellate court dismissed Felts’s

claims, relying on section 287.140, which provides that an employer is obligated to provide

medical treatment as may be reasonably required to cure the employee’s injury or disability. Felts,

916 S.W.2d at 801. The court held, “The decision as to what type of care is reasonable under the

circumstances lies within the exclusive domain of the Workers’ Compensation Division.” Id.; see

also Wiley v. Shank & Flattery, Inc., 848 S.W.2d 2, 3–5 (Mo. App. W.D. 1992) (holding claims

that employer interfered with medical care and treatment, required employee to return to work,

and prevented employee from following his doctor’s advice were barred by the exclusivity

provision). Similarly, Lambrich’s claims in paragraphs 6(g)(1), 6(g)(6), and (6)(m) attempt to seek

damages indirectly caused by Respondent’s denial and interference with medical treatment. Thus,

they fall within the exclusive jurisdiction of the Division.

       Next, we address paragraphs 6(h), 6(i), 6(j), 6(k), and 6(l), the allegations of improper

investigation and administration of the compensation claims. Lambrich alleged Respondent

“created, ordered and/or facilitated the creation of false reports relating to [Lambrich]” that

resulted in the loss of TTD benefits; edited videotaped surveillance of him; presented the edited

surveillance tapes to physicians to review and give opinions that exaggerated his ability to perform

manual labor; and provided inaccurate information to third parties regarding his job duties, and

destroyed or concealed information that accurately depicted his normal job duties. We find each

of these claims also falls within the exclusive jurisdiction of the Division.




                                                 16
       Again, the Felts court addressed similar claims, finding the allegations that Ford

discriminated against Felts through the administration of his claim, and the denial of his workers’

compensation benefits was exclusively barred by the Workers’ Compensation Law. Felts, 916

S.W.2d at 802. Moreover, the Eight Circuit in Phillips v. Ford Motor Co. noted that to the extent

an employee is “seeking a remedy based directly or indirectly upon the employer’s denial of

workers’ compensation benefits, their claims [are] subject to the exclusive rights and remedies

provided in the state’s workers’ compensation laws and likewise [are] within the exclusive original

jurisdiction of the Division.” Phillips v. Ford Motor Co., 83 F.3d 235, 238 (8th Cir. 1996) (citing

Felts, 916 S.W.2d at 803).

       Although Felts, Wiley, and Phillips were decided prior to McCracken, the McCracken court

only abrogated Felts and Wiley to the extent it held the exclusivity provision does not affect the

trial court’s subject matter jurisdiction, and that defendant must raise the issue as an affirmative

defense rather than on a motion to dismiss. Thus, McCracken did not affect the substantive

holdings that an employee cannot base a discrimination claim on allegations that fall within the

exclusivity provision of the Workers’ Compensation Law.

       Accordingly, we find the trial court appropriately struck the allegations in paragraphs

6(g)(1), 6(g)(6), 6(h)–(m) because they fall within the exclusive jurisdiction of the Division. Point

two is denied.

       In his fifth point, 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 the exclusivity provision. Specifically, Lambrich

asserts section 287.780 prohibits discrimination “in any way,” and the exclusivity defense only

applies to injuries caused by “accidents” that can be compensated through the workers’



                                                 17
compensation system. Lambrich contends his allegations pled ways in which Respondent

discriminated against him, and did not involve either injuries caused by an “accident” or damages

that could be remedied through the workers’ compensation system.

       On appeal from a judgment in a bench-tried case, this court will sustain the judgment of

the trial court unless there is no substantial evidence to support it, it is against the weight of the

evidence, it erroneously declares the law, or it erroneously applies the law. Murphy, 536 S.W.2d

at 32. “Appellate courts should exercise the power to set aside a decree or judgment on the ground

that it is ‘against the weight of the evidence’ with caution and with a firm belief that the decree or

judgment is wrong.” Id.

       Here, Lambrich claimed he was prematurely released to return to work after Dr. Nogalski

examined him and found he had reached MMI. Lambrich’s TTD benefits were discontinued, and

thereafter he was placed on ISL status due to the conflicting medical opinions. Lambrich sought

damages for his financial losses and for the psychological injuries caused by his inability to work.

In its judgment, the trial court found the exclusivity provision bars employees “from seeking, in a

civil action, benefits or compensation otherwise available to them under the Workers’

Compensation Law.” The court found Lambrich’s claims that he was released to return to work

improperly, causing his TTD benefits to be prematurely discontinued, as well as the financial

losses and psychological injuries, were the same as those sought in his workers’ compensation

claims. Accordingly, the court concluded they were barred by the exclusivity provision. Relying

on Felts, Wiley, and Phillips, the court further found, “The Exclusivity Provision has been

interpreted so an employee may not claim civil discrimination under § 287.780 R.S.Mo. in

connection with a denial of worker’s compensation benefits or the way in which his or her workers’

compensation claim is administered.” We agree.



                                                 18
          Here, Lambrich is essentially seeking the same remedies as the plaintiffs in Felts and Wiley.

Felts alleged he suffered “aggravation of his injuries which prolonged his recovery; new injuries

resulting in additional permanent disability; pain and suffering; severe and prolonged economic

hardship that resulted and continues to result in emotional and mental distress; and loss in Mr.

Felts’ quality of life.” Felts, 916 S.W.2d at 802. The appellate court concluded, “All of Felts’

claims fall under the provisions of the Act. The injuries for which he seeks compensation arose

out of his employment at Ford as is required by § 287.120. Remedies under the Act include

compensation for mental conditions.” Id. (internal citation omitted). Similarly, in Wiley, the

plaintiff alleged his employer interfered with his care and treatment by requiring him to return to

his job against his doctor’s advice, and requiring him to continue to work when he was physically

unable to do so. Wiley, 848 S.W.2d at 3. The appellate court affirmed the trial court’s dismissal of

the petition because plaintiff’s exclusive remedy was under the Workers’ Compensation Law. Id.

at 4–5.

          The same analysis applies here. We find, like Felts and Wiley, that Lambrich’s claims for

financial losses and psychological injuries arising out of his inability to work are barred by the

exclusivity provision, and his remedy falls squarely within the Workers’ Compensation Law. To

hold otherwise, as the Phillips court acknowledged, “would open the door for every claimant who

is denied benefits to avoid the administrative review of such claims required by Missouri Workers’

Compensation Law.” Phillips, 83 F.3d at 237 (internal citation omitted).

          Moreover, the issues of unpaid TTD benefits and psychological injuries before the trial

court were the same as those previously heard by the Division. Following Lambrich’s workers’

compensation hearing, the ALJ concluded Lambrich was not entitled to TTD benefits. However,

Lambrich was awarded 15% PPD of the left shoulder, and 5% PPD of the body as a whole for his



                                                   19
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. After hearing the evidence, the trial court

concluded, “Essentially, Lambrich is seeking damages of the same character in this matter as those

he sought in his worker’s compensation case, as well as damages he claims were indirectly caused

by the denial of these worker’s compensation benefits.” Other than the claims of financial losses

and psychological injuries before the Division, nothing in the record suggests Lambrich provided

any evidence at trial that he suffered additional damages. Therefore, we agree with the trial court. 15

        Notwithstanding the exclusivity defense, the trial court reached the merits of Lambrich’s

claim. At the time of trial, Hansome v. Northwestern Cooperage Co., governed the cause of action

under section 287.780. In Hansome, the Missouri Supreme Court held the action authorized by

section 287.780 has four elements: “(1) plaintiff’s status as employee of defendant before injury,

(2) plaintiff’s exercise of a right granted by Chapter 287, (3) employer’s discharge of or

discrimination against plaintiff, and (4) an exclusive causal relationship between plaintiff’s actions

and defendant’s actions.” Hansome v. Nw. Cooperage Co., 679 S.W.2d 273, 275 (Mo. banc 1984).

However, in 2014, the Missouri Supreme Court overruled Hansome’s causation standard, holding

an employee need only demonstrate that his exercise of rights under chapter 287 was a

“contributing factor” of the discrimination or discharge. Templemire v. W&M Welding, Inc., 433

S.W.3d 371, 373 (Mo. banc 2014).

        To prevail on his claim under section 287.780, Lambrich must establish he was discharged

or discriminated against for exercising rights under the Workers’ Compensation Law. See id. at

378; Hansome, 679 S.W.2d at 275. Lambrich failed to meet his burden. The trial court concluded


15
  We do not conclude that all psychological damages alleged in retaliatory discrimination cases are barred by
section 287.120.2, the exclusivity provision, of the Workers’ Compensation Law.

                                                        20
Lambrich’s placement on ISL was not “tantamount to a discharge.” ISL is an administrative status

designed to protect the jobs of employees who are unable to work either (1) because they have a

personal injury or illness unrelated to work that prevents them from working or (2) because of an

unresolved medical disagreement about an employee’s ability to return to work that has arisen in

a workers’ compensation claim. Lambrich was placed on ISL on two occasions. Lambrich was

first placed on ISL due to the confusion over whether the injury was work related, and his

resistance to completing a workers’ compensation injury report. Later, Lambrich was placed on

ISL after Dr. Nogalski and Dr. Cohen gave conflicting medical opinions regarding Lambrich’s

ability to return to work. Respondent testified Lambrich was never discharged and can return to

work when able. Accordingly, we find the trial court properly concluded Lambrich’s placement

on ISL was consistent with CTC’s practice and policy, and did not amount to a discharge. See

Rutherford v. Davis, 458 S.W.3d 456, 458 (Mo. App. E.D. 2015) (“We accept as true all evidence

and reasonable inferences favorable to the prevailing party and disregard contrary evidence and

inferences.”).

       The trial court further concluded Lambrich failed to establish Respondent discriminated

against him. To prove discrimination, Lambrich must show that Respondent acted with retaliatory

motive or purpose. See Reed v. Sale Mem’l Hosp. & Clinic, 698 S.W.2d 931, 935 (Mo. App. S.D.

1985). The court found credible the testimonies of Litwiller, Molter, Nelson, Gross, and Cellitti,

all of whom testified they would never punish or discriminate against an employee for filing a

workers’ compensation claim. The court subsequently concluded their actions were taken without

animus or intent to discriminate or punish. We defer to the trial court’s determination as to the

credibility of the witnesses. See McAllister v. McAllister, 101 S.W.3d 287, 290–91 (Mo. App. E.D.

2003); Milligan v. Helmstetter, 15 S.W.3d 15, 24 (Mo. App. W.D. 2000) (“The trial judge has



                                               21
absolute discretion as to the credibility of witnesses and the weight of their testimony is a matter

for the trial court, and its findings on witness credibility are never reviewable by the appellate

court.”).

        While recognizing the legal standard of causation required to prevail under section 287.780

changed after trial from “exclusive cause” to “contributing factor,” the trial court made a specific

finding that “[u]nder either standard of causation . . . Plaintiff failed to establish his burden,” and

Respondent did not discharge or discriminate against Lambrich for exercising his workers’

compensation rights.

        We find the trial court’s judgment was not against the weight of the evidence, and

Lambrich’s claims of retaliatory discrimination were barred by the exclusivity provision. Point

five is denied.

                                             Conclusion

        We affirm the judgment of the trial court.




                                                              _______________________________
                                                              Angela T. Quigless, P.J.

Robert G. Dowd, Jr., J., and
Lisa S. Van Amburg, J., Concur.




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