Burns v. Employer Health Services, Inc.

• Decision Date: 29 September 1998
• Docket Number: No. WD,WD
• Citation: Burns v. Employer Health Services, Inc., 976 S.W.2d 639 (Mo. App. 1998)
• Parties: Judith M. BURNS, Appellant, v. EMPLOYER HEALTH SERVICES, INC., et al., Respondents. 55017.
• Court: Missouri Court of Appeals

Page 639

976 S.W.2d 639

Judith M. BURNS, Appellant, v.EMPLOYER HEALTH SERVICES, INC., et al., Respondents.

No. WD 55017.

Missouri Court of Appeals Western District.

Sept. 29, 1998.

James G. Lindquist, Kansas City, for Appellant.

Robert P. Numrich, Norman I. Reichel, Jr., Kansas City, for Respondents.

Before SPINDEN, P.J., and ULRICH and EDWIN H. SMITH, JJ.

EDWIN H. SMITH, Judge.

Judith M. Burns appeals from the judgment of the circuit court dismissing her petition for medical malpractice against Gallagher Woodsmall, Inc., Lynn Wells-Brownell, and Barbara Jones, respondents, for lack of subject matter jurisdiction, the court having determined that exclusive jurisdiction was vested in the Workers' Compensation Division(the Division) as to the alleged negligent acts of the respondents.

The appellant asserts two points on appeal.In both points, she claims that the trial court erred in dismissing her petition for lack of subject matter jurisdiction because the alleged medical malpractice of the respondents did not fall within the exclusive jurisdiction of the Division in that the Workers' Compensation Law (WCL), Chapter 287, ¹ did not apply.In Point I, she claims the WCL did not apply because, pursuant to § 287.120, the rights and remedies she sought with regard thereto were not provided for by the law.And, in Point II, she claims the WCL did not apply because under the law the respondents were "third persons," not employers or their agents, against whom a separate tort claim could be maintained.

We affirm.

Facts

On or about February 4, 1994, the appellant fell at her place of employment, a Price Chopper grocery store, and injured her right shoulder.On February 7, 1994, she was evaluated by an employee of Occupational Medicine Associates, a division of Employer Health Services, Inc., and diagnosed with a right shoulder strain.The appellant was subjected to physical therapy and work hardening regimens, and released to return to work.A later examination revealed that the appellant had a rotator cuff tear requiring surgery.

On August 23, 1996, the appellant filed a petition alleging medical malpractice against Employer Health Services, Inc., d/b/a Occupational Medicine Associates; M. Pourakbar, D.O.; John Doe and Mary Roe; Pamela S. Harris, M.D.; Gallagher Woodsmall, Inc., who provided case management on behalf of her employer; Barbara Jones, R.N., a contracted agent of Gallagher Woodsmall, Inc.; and, Lynn Wells-Brownell, an employee of Gallagher Woodsmall, Inc.She did not join her employer, Four-B Corporation d/b/a Price Chopper.The appellant alleged that Gallagher Woodsmall, Inc., and Wells-Brownell provided case management for Price Chopper and monitored and directed her medical treatment.She asserted that Gallagher Woodsmall, Inc., and its agents began monitoring and directing her medical treatment on or about February 7, 1994, and continued to monitor her treatment through July, 1995.Specifically, the appellant alleged that Gallagher Woodsmall, Inc., and its agents, including Barbara Jones and Lynn Wells-Brownell, were negligent in: (1) failing to refer her to an orthopedic surgeon; (2) placing her in a work hardening program; (3) returning her to work before her injury was properly diagnosed and treated; and, (4) failing to follow the prescriptions and orders of her treating physicians.

On March 25, 1997, Gallagher Woodsmall, Inc., and Wells-Brownell filed a motion and suggestions to dismiss the appellant's petition, claiming that the trial court lacked subject matter jurisdiction.On August 4, 1997, the trial court sustained the motion, finding that the Division had exclusive jurisdiction over the appellant's claims.On September 5, 1997, Jones filed a motion and suggestions to dismiss the appellant's petition claiming that the trial court lacked subject matter jurisdiction.On September 8, 1997, the trial court sustained the motion.The trial court also found that the dismissals of Gallagher Woodsmall, Inc., Wells-Brownell, and Jones were final judgments for the purpose of appeal.

This appeal follows.

Standard of Review

A motion to dismiss for lack of subject matter jurisdiction is the correct method to raise as a defense to a tort action the exclusive jurisdiction of the Division, as provided in Chapter 287.State ex rel. McDonnell Douglas v. Ryan, 745 S.W.2d 152, 153(Mo. banc 1988).The trial court should grant such a motion when it appears by a preponderance of the evidence that the court lacks subject matter jurisdiction.State ex rel. Rival Co. v. Gant, 945 S.W.2d 475, 476(Mo.App.1997)(citation omitted);Rule 55.27(g)(3)."As the term 'appears' suggests the quantum of proof is not high."Parmer v. Bean, 636 S.W.2d 691, 694(Mo.App.1982).The movant bears the burden of showing that the trial court is without subject matter jurisdiction.Gabler v. McColl, 863 S.W.2d 340, 342(Mo.App.1993).In determining whether a case comes under the provisions of the WCL, the trial court may consider affidavits, exhibits, and evidence pursuant to Rules 55.27and55.28. Id.

The determination of whether a case falls within the exclusive jurisdiction of the Division is a question of fact.State ex rel. McDonnell Douglas, 745 S.W.2d at 154."When the court's jurisdiction turns on a factual determination the decision should be left to the sound discretion of the trial judge."Parmer, 636 S.W.2d at 694;seeFelling v. Wire Rope Corp., 854 S.W.2d 458, 461(Mo.App.1993);Gabler, 863 S.W.2d at 342.Thus, our review, here, is for an abuse of discretion."The trial court abuses its discretion when its ruling is clearly against the logic of the circumstances and is so arbitrary and unreasonable that it shocks the sense of justice and indicates a lack of careful consideration."Lohmann v. Norfolk & Western Ry. Co., 948 S.W.2d 659, 668(Mo.App.1997)(citingAnglim v. Missouri Pac. R.R., 832 S.W.2d 298, 303(Mo. banc 1992)cert. denied, 506 U.S. 1041, 113 S.Ct. 831, 121 L.Ed.2d 701(1992)).

Discussion

There is no dispute between the parties that the appellant injured her shoulder while working at the grocery store where she was employed by Four-B Corporation d/b/a Price Chopper.Further, there is no dispute as to the fact that the WCL applied to this injury and that it fell under the exclusive jurisdiction of the Division.The dispute centers around whether the facts alleged in appellant's petition for medical malpractice demonstrated that the WCL did not apply to the alleged negligent, post-accident "medical treatment" by the respondents of the appellant's work-related injury, placing her claim outside the Division's exclusive jurisdiction and requiring the trial court to overrule the respondents' motions to dismiss for lack of subject matter jurisdiction.Thus, the issue for us to decide is whether, based on the facts alleged in the appellant's petition, the WCL applied to the claimed medical malpractice of the respondents in treating the appellant's work-related injury, vesting exclusive jurisdiction in the Division and depriving the trial court of subject matter jurisdiction over her claim against the respondents.

Section 287.120 governs the determination of when an injury falls under the WCL, resulting in the Division having exclusive jurisdiction.In this respect, the WCL is wholly substitutional in character and works to deprive an employee of his or her tort claim against an employer and its agents, assuming that the law applies.Felts v. Ford Motor Co., 916 S.W.2d 798, 801(Mo.App.1995)(citingKillian v. J & J Installers, Inc., 802 S.W.2d 158, 160(Mo. banc 1991)(quotingJones v. Jay Truck Driver Training Ctr., Inc., 709 S.W.2d 114, 115(Mo. banc 1986))).As to when the WCL applies, § 287.120 states, in pertinent part, as follows:

1.Every employer subject to the provisions of this chapter shall be liable, irrespective of negligence, to furnish compensation under the provisions of this chapter for personal injury or death of the employee by accident arising out of and in the course of his employment, and shall be released from all other liability therefor whatsoever....

2.The rights and remedies herein granted to an employee shall exclude all other rights and remedies of the employee ... 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.

Relying on her interpretation of § 287.120, the appellant claims the WCL did not apply to the alleged negligent acts of the respondents in two respects.She claims in Point I that the WCL did not apply because the rights and remedies she sought in her dismissed suit were not provided for by the law in that the rights and remedies she sought were for a "separate and additional injury" sustained as a result of the combined medical negligence of her treating physicians and the respondents which did not arise out of and in the course of her employment.In Point II she claims that the trial court erred in dismissing her petition because her medical malpractice suit was not against her employer or its agents, but "third persons," who were not protected from civil liability under § 287.150.

I.

In Point I, as stated, supra, the appellant claims that the trial court erred in dismissing her petition for medical malpractice against the respondents for lack of subject matter jurisdiction because the Division did not have exclusive jurisdiction over her claim against the respondents in that the rights and remedies she sought for the alleged negligent acts of the respondents were not provided for by the WCL in that the rights and remedies she sought were for a "separate and additional injury" sustained as a result of the combined medical negligence of her treating physicians and the respondents which did not arise out of and in the course of her employment.In making this claim, the appellant relies on the language in § 287.120.2 that the rights and remedies provided...