Wolfe v. Central Mine Equipment Co., 65084

• Decision Date: 17 January 1995
• Docket Number: No. 65084,65084
• Citation: 895 S.W.2d 83
• Parties: Dennis R. WOLFE, Appellant, v. CENTRAL MINE EQUIPMENT COMPANY, Respondent.
• Court: Missouri Court of Appeals

Page 83

895 S.W.2d 83

Dennis R. WOLFE, Appellant, v. CENTRAL MINE EQUIPMENT COMPANY, Respondent.

No. 65084.

Missouri Court of Appeals,

Eastern District,

Division Two.

Jan. 17, 1995.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Feb. 22, 1995.

Application to Transfer Denied

April 25, 1995.

William Kaseberg, Edwardsville, IL, for appellant.

J. Patrick Chassaing, Clayton, for respondent.

WHITE, Judge.

In this jury-tried § 287.780 RSMo 1986 retaliatory discharge case, plaintiff Dennis Wolfe appeals a judgment against him. On appeal, plaintiff contends the trial court erred in: (1) denying his motion for judgment notwithstanding the verdict or, in the alternative, for a new trial; (2) "allowing improper evidence and argument of the questionable merits of Wolfe's injuries and workers' compensation claims, while keeping from the jury the contradictory res judicata findings of the Division of Workers' Compensation" and (3) submitting defendant's converse instruction to the jury. We affirm.

Plaintiff was employed as a rig worker by defendant Central Mine Equipment Company. On February 21, 1984, plaintiff sustained a work-related injury to his back. Plaintiff received medical treatment and was given a release to return to work without limitation. However, plaintiff continued to complain of pain and scheduled an appointment on his own with Dr. Heidke, a chiropractor. Dr. Heidke recommended plaintiff not work until his back was given a complete examination. Plaintiff informed defendant of Dr. Heidke's opinion. Defendant then sent plaintiff to a medical clinic and ultimately plaintiff was referred to Dr. Marchowski, an orthopedic surgeon.

Plaintiff was off work and receiving workers' compensation benefits for much of the period from February 24, 1984 to October 18, 1984. Several times during this period, plaintiff was medically authorized to resume work. He worked seven days in March, one day in April, and five days in May. Each time he attempted to work he complained his back pain was "intolerable" and was taken off work duty. Ultimately, plaintiff was scheduled for surgery. In his statement of facts, plaintiff stated he was unable to have the surgery because defendant did not have his check for temporary total disability benefits ready and he was concerned his family would be without income during his hospitalization. However, during cross-examination, plaintiff admitted he did not have the surgery because Dr. Marchowski became angry with him and refused to perform the surgery. ¹

Plaintiff was given a full medical release and returned to work on Friday, October 19, 1984. However, on the same day, plaintiff reinjured his back while attempting to dislodge an oxygen tank. Plaintiff did not report the injury and continued to work the rest of the day. On Monday, plaintiff told Glennon Mueller, defendant's plant manager, he could not "do the job" because he was in pain. The parties dispute whether plaintiff informed Mueller of the October 19, 1984 injury on Monday. Mueller told plaintiff to return to Dr. Machek, the doctor who had given plaintiff the full medical release, and ascertain whether he would change plaintiff's work release status. Mueller also advised plaintiff, if the doctor did not change his determination, plaintiff would have to return to work or be fired. Plaintiff saw Dr. Machek later the same afternoon, but the doctor refused to change his determination. The next morning, plaintiff informed Mueller of the doctor's decision and refused to return to work until he was examined by a physician of his own choosing. Mueller immediately terminated plaintiff's employment. Plaintiff requested a service letter pursuant to § 290.140 RSMo 1986. In the letter, Mueller stated the reason for plaintiff's termination was plaintiff's failure to do available work despite having a medical release for full duty.

Following his discharge, plaintiff filed for workers' compensation benefits for the two work-related injuries. On October 17, 1990, an Administrative Law Judge (ALJ) found plaintiff was temporarily and totally disabled as a result of the February 21, 1984 accident and injury. The ALJ further found plaintiff's subsequent injury of October 19, 1984 aggravated his original injury but caused no additional permanent disability.

On April 20, 1990, plaintiff filed this cause of action against defendant for retaliatory discharge, § 287.780 RSMo 1986. The jury returned a unanimous verdict in favor of defendant. Plaintiff's motion for judgment n.o.v. or, in the alternative, a new trial was denied. This appeal followed.

In point one, plaintiff argues the trial court erred in denying his motion for judgment n.o.v. or a new trial because the record overwhelmingly established defendant discriminated against plaintiff and terminated his employment solely as a result of a dispute over plaintiff's "temporary total disability status." We disagree.

Granting judgment n.o.v. is an extreme measure which should only be done when all of the evidence and reasonable inferences to be drawn therefrom are so strongly against the opponent of the moving party's case there is no room for reasonable minds to differ. Commerce Bank of Lebanon v. Berry, 692 S.W.2d 830, 831 (Mo.App.E.D.1985). In reviewing the denial of a judgment n.o.v. motion, we view the evidence in the light most favorable to the non-moving party and give that party the benefit of all reasonable inferences. Southwestern Bell Yellow Pages, Inc. v. Robbins, 865 S.W.2d 361, 365 (Mo.App. E.D.1993).

To prevail in an action for retaliatory discharge under § 287.780, a plaintiff must prove four elements: (1) plaintiff's status as an employee of defendant before injury; (2) plaintiff's exercise of a right granted by the Workers' Compensation Law, Chapter 287 RSMo 1986; (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. Northwestern Cooperage Co., 679 S.W.2d 273, 275 (Mo. banc 1984). Causality does not exist if the basis for discharge is valid and nonpretextual. Id.

In the case at hand, Mueller testified at length regarding his reasons for terminating plaintiff's employment. Mueller testified he terminated plaintiff because he "refused to do the work available, he wouldn't or he could not do it." Mueller also denied firing or taking any other action against plaintiff to harm or harass plaintiff for exercising his workers' compensation rights. Credibility of witnesses is for the jury to determine. Poluski v. Richardson Transportation, 877 S.W.2d 709, 714 (Mo.App.E.D.1994). From this testimony the jury could have inferred there was no causal relationship between plaintiff's exercise of a right granted to him under the Workers' Compensation Law and Mueller's action in terminating plaintiff's employment. Nothing in the Workers' Compensation Law requires an employer to retain an injured employee when he has recovered from his injuries and is declared able to return to work but cannot or will not perform the duties required by his job. Arie v. Intertherm, Inc., 648 S.W.2d 142, 150 (Mo.App.E.D.1983). Accordingly, the trial court's denial of plaintiff's motion for judgment n.o.v. or a new trial was proper. Point denied.

In his second point, plaintiff essentially argues the trial court made two errors. First, plaintiff contends the trial court erred in allowing improper evidence and argument of the questionable merits of plaintiff's injuries. Second, plaintiff argues the trial court erred in withdrawing from the jury the findings of the ALJ.

Defendant elicited testimony from Mueller, plaintiff's supervisor, and a co-worker who served as an assistant shop steward regarding when plaintiff reported the October 19, 1984 injury. Each testified plaintiff did not report the injury prior to his termination. Mueller testified he was not notified of plaintiff's October 19, 1984 injury until November 16, 1984, almost a month after plaintiff's termination when plaintiff first filed a workers' compensation claim for the injury. Defendant also admitted into evidence plaintiff's workers' compensation claim for his first injury of February 21, 1984. It was filed on October 24, 1984 and made no mention of the October 19, 1984 injury. This testimony and evidence was contradicted by plaintiff who testified he told Mueller and his supervisor of his October 19, 1984 injury on October 22, 1984, the day before he was terminated. Mueller also testified he received information from plaintiff's treating physicians immediately after plaintiff's initial injury of February 21, 1984 which indicated plaintiff's back problems were related to causes other than a work-related accident. Based on this information, Mueller testified he initially doubted plaintiff's injury was work-related and, as a result, told plaintiff he should be examined by his own doctor for any problems unrelated to work. Additionally, during closing argument, defense counsel suggested plaintiff had not, in fact, suffered a subsequent injury on October 19, 1984. Plaintiff argues this testimony and argument was barred by the res judicata findings of the ALJ which held plaintiff suffered from work-related injuries on February 21 and October 19, 1984.

Res judicata is comprised of two separate and distinct doctrines: claim preclusion, known as res judicata and issue preclusion, known as collateral estoppel. Fleming v. Mercantile Bank & Trust Co., 796 S.W.2d 931, 933 (Mo.App.W.D.1990). Claim preclusion bars the relitigation of the same claim. Id. Issue preclusion, in contrast, precludes a party from relitigating factual or legal issues which were decided and necessary to a prior judgment. Id. It is clear from his brief and the facts upon which this case rests, plaintiff's argument is based on the latter doctrine and, accordingly, we limit our review to a collateral estoppel analysis.

The elements necessary to...