Hopkins v. Tip Top Plumbing and Heating Co., WD

• Decision Date: 29 January 1991
• Docket Number: No. WD,WD
• Citation: Hopkins v. Tip Top Plumbing and Heating Co., 805 S.W.2d 280 (Mo. App. 1991)
• Parties: Larry HOPKINS, Respondent, v. TIP TOP PLUMBING AND HEATING COMPANY, Appellant. 42394.
• Court: Missouri Court of Appeals

Page 280

805 S.W.2d 280

Larry HOPKINS, Respondent, v. TIP TOP PLUMBING AND HEATING COMPANY, Appellant.

No. WD 42394.

Missouri Court of Appeals Western District.

Jan. 29, 1991.

Motion for Rehearing and/or Transfer to

Supreme Court Denied March 5, 1991.

Application to Transfer Denied April 9, 1991.

Jerome T. Wolf, Kansas City, for appellant.

J. Michael Rumley, Kansas City, for respondent.

Before KENNEDY, P.J., and SHANGLER and GAITAN, JJ.

SHANGLER, Judge.

The plaintiff Larry Hopkins brought an action against Tip Top Plumbing and Heating Co. for wrongful discharge from employment for the exercise of rights under the Workers Compensation Law. § 287.780, RSMo 1986. The jury awarded the plaintiff $46,681 and judgment was entered on the verdict. The appeal is from that judgment.

The plaintiff Hopkins was employed by Tip Top as a plumber from September of 1985 until January 20, 1987. Tip Top was a union shop and so Hopkins became a member. In January of 1987 he was paid the $16.92 per hour union-negotiated wage. He worked mostly with copper pipes, which he cut and then soldered with lead flux to connect onto water lines.

On December 31, 1986, Hopkins blacked out while on a job site and was taken to a hospital. The preliminary diagnosis was lead poisoning. He was released from the hospital after several days and was placed on medication to control seizures and blackouts. The physician advised that he avoid work with copper or flux that might emit lead fumes, and that he not drive for 90 days. Hopkins continued treatment after release while his physician awaited the test results required to make a definite diagnosis of his condition.

Hopkins remained at home for several days after the release, and returned to work on January 7, 1987. He informed the jobsite foreman, Goffro, of the medical restrictions as to exposure to lead fumes and the foreman assigned him tasks that did not involve such exposure. It was the policy of the employer, in order to ensure the safety of coworkers, that an employee injured on the job bring a doctor's release to either field superintendent Hazelwood or company president Ladd before returning to work. Hopkins did not contact either Hazelwood, who was on vacation when he returned to work, or Ladd before he resumed work. Nor did Hopkins have a written release.

Hopkins continued on the job until January 20 when field superintendent Hazelwood handed him an envelope and told him he was fired. Hazelwood had returned from vacation some days before and discovered that Hopkins did not have a written medical release. Hazelwood mentioned the subject of a doctor's release to Hopkins, but could not recall the extent of that conversation. Hopkins asked why he was being fired, but Hazelwood didn't know and referred Hopkins to Ladd, president of Tip Top, for the explanation. Hopkins talked with Ladd on that day or on the next day, January 21. Ladd told Hopkins that the discharge had nothing to do with his work but all to do with his health. Hopkins testified that "[i]t was entirely my health condition, and the fact that I exercised my right for Workers' Compensation. Furthermore, [Ladd] stated that he had too may claims against Worker's Compensation already and his premiums were entirely too high to start with." Ladd also told Hopkins that "at that time he had already had one man killed on the job, he had two men injured, and he could not afford to take a chance of any more claims against Tip Top on Workers' Comp." Hopkins acknowledged that Ladd never told him "directly" that "he was being terminated for filing a Workers' Comp claim." Nor had Hopkins yet at the time he was fired filed a formal claim for workers' compensation or consulted a lawyer to that end.

Ladd did not recall whether he told Hopkins that he "couldn't afford to have any more Workers' Compensation claims against Tip Top", but that it was "possible." He did not tell Hopkins that one worker had been killed and two men maimed and that the insurance premiums were already too high. On the day Hopkins was terminated, January 20, nevertheless, Ladd knew that Hopkins "had been off on a Workers' Compensation claim." Hopkins acknowledged that Ladd told him then that he would be "tickled to death to put [Hopkins] back to work" as soon as he received a "clean bill of health" from his doctor.

On January 24 or 25, a few days after the termination, the treating physician placed Hopkins on total disability and instructed him not to work at all until April 1. On that date the physician released him for work without restriction. Hopkins considered himself fired and did not return to Tip Top. Instead he called the union hall because it was customary for unemployed union members to get jobs that way. Hopkins was told by the union that Tip Top was not hiring, and so he accepted the first available work--with Rodriguez Mechanical--even though it was temporary. He worked there from May 1 until August 19 and at the same wage paid by Tip Top, $16.92 per hour. After that job ended, Hopkins attempted to find other employment through the union, even with Tip Top. He was then expelled from the union because he could not pay dues, and thereafter Hopkins sought nonunion plumbing jobs, but work was not available. In July of 1988 Hopkins obtained work as an insurance salesman and continued in that employment at the time of trial.

Tip Top contends for its first point on appeal that the trial court erred in the denial of its motion for directed verdict at the close of plaintiff's evidence because Hopkins failed to prove a submissible case. In the recapitulation of that argument Tip Top accords to the plaintiff only the favorable inferences of its case-in-chief. Tip Top tendered evidence upon denial of that motion, however, and thus waived appellate review of that trial action. Polovich v. Sayers, 412 S.W.2d 436, 438 (Mo.1967). Tip Top also moved for a directed verdict at the close of all the evidence. What is preserved for appellate review--and what Hopkins understands the point to intend--is the sufficiency of the evidence at the conclusion of all the evidence to submit the claim of discriminatory discharge for the exercise of right under § 287.780, RSMo 1986. In that determination we consider the inferences most favorable to the employee from all the evidence and disregard the evidence of the employer except as it sustains the case of the employee. Henderson v. St. Louis Hous. Auth., 605 S.W.2d 800, 802 (Mo.App.1979). The burden to prove a claim under the statute, of course, rests on the employee. Craig v. Thompson, 244 S.W.2d 37, 42 (Mo. banc 1951).

There are four essential elements to the cause of action that § 287.780 ¹ invests:

(1) plaintiff's status as an employee of the defendant before the injury

(2) plaintiff's exercise of a right under chapter 287

(3) discharge of or discrimination against the employee by the employer

(4) an exclusive causal relationship between plaintiff employee's actions and defendant employer's actions

Hansome v. Northwestern Cooperage Co., 679 S.W.2d 273, 275 (Mo. banc 1984).

Tip Top does not dispute the sufficiency of the proof of the first two elements. The employer "questions" that the third was met, ² but presses only the contention that it was the failure to prove the fourth element- --an exclusive causal relationship between the exercise of right under the statute and the discharge from employment--that defeats the submissibility of the claim. It is the argument that in those cases where a submissible issue of discriminatory discharge under § 287.780 was made out, the exercise of right to workers' compensation occurred prior to the discriminatory action of the employer. See, e.g., Hansome v. Northwestern Cooperage Co., 679 S.W.2d at 275; Wiedower v. ACF Industries, 715 S.W.2d 303 (Mo.App.1986); Russell v. United Parcel Serv., 666 F.2d 1188 (8th Cir.1981). In this case, Tip Top argues, the proof of exclusive causal relationship between the employee's exercise of right and the employer's act of termination fails because "[Hopkins] was pulled off the job [only] because he did not have a doctor's release to go back to work."

The argument, as before, remains tendentious and indifferent to the inference that Hopkins was fired because he had suffered a compensable injury and was in the exercise of his rights under the Workers' Compensation Law. The evidence that Ladd knew at the time he terminated Hopkins from employment that Hopkins "was off because he was hurt on the job," that Ladd told Hopkins he was fired because he was exercising his rights under the Workers' Compensation Law, and that his premiums were already too high so that "he could not afford to take a chance on any more claims on Workmen's Comp," that Ladd acknowledged that it was "possible" that he could not afford to have any more such claims against Tip Top--all are probative of an exclusive causal relationship between the exercise of right by the employee under § 287.780 and the discharge by the employer.

It is indeed the principle that the Workers' Compensation Law is designed to compensate an employee for job-related injury, and not to ensure job security. Davis v. Richmond Special Rd. Dist., 649 S.W.2d 252, 255 (Mo.App.1983). Thus, the fact alone that a discharge follows the filing of a compensation claim for a work related injury does not prove a cause of action under § 287.780. Rodriguez v. Civil Serv. Comm'n, 582 S.W.2d 354, 356 (Mo.App.1979). There must be also a demonstrable exclusive causal relationship between the exercise of right and the discharge or other discrimination. Hansome v. Northwestern Cooperage Co., 679 S.W.2d at 275. Thus, if the evidence proves that the employer had just cause to terminate the employment other than for the exercise of right by the employee under the Workers' Compensation Law, then the employee does not recover under § 287.780. Arie v.

Intertherm, Inc., 648 S.W.2d 142, 149 (Mo.App.1983).

Hopkins sufficiently...