Snyder v. ICI Explosives USA, Inc.

938 S.W.2d 946, 1997 Mo. App. LEXIS 206, 1997 WL 58961
CourtMissouri Court of Appeals
DecidedFebruary 13, 1997
DocketNo. 20712
StatusPublished
Cited by3 cases

This text of 938 S.W.2d 946 (Snyder v. ICI Explosives USA, Inc.) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Snyder v. ICI Explosives USA, Inc., 938 S.W.2d 946, 1997 Mo. App. LEXIS 206, 1997 WL 58961 (Mo. Ct. App. 1997).

Opinion

PREWITT, Judge.

Ermal Eugene “Gene” Snyder (Plaintiff) appeals from an adverse judgment entered following non-jury trial on his claim of handicap discrimination against ICI Explosives, USA, formerly Atlas Powder, Inc. (Defendant).

Plaintiff worked for Defendant in various capacities from October, 1973, to December, 1991. In 1989, Plaintiff began to experience dizziness, blackouts, and a loss of pulse when he raised his left arm above his head. Upon being diagnosed as suffering from “thoracic outlet syndrome,” Plaintiff underwent surgery in which a portion of his left rib was removed to relieve pressure on nerves.

Later that year, Plaintiff slipped at work, which caused an 80-pound metal container to fall onto his head. Plaintiff again began to experience dizziness and blackouts as well as aching around his shoulders and neck. Eventually, one year later, in August, 1990, Plaintiff went on disability. Shortly thereafter, Plaintiff was involved in an automobile collision which apparently aggravated Plaintiffs injuries.

In October, 1990, Plaintiff underwent a laminectomy. Plaintiff later had a second operation to remove a herniated disk, which involved fusion of vertebrae in Plaintiffs spine.

After the second surgery, Plaintiff showed signs of improvement and sought to return to his old job. Dr. Daus, the physician who performed the surgery, signed a retum-to-work slip without noting any restrictions. He testified at a deposition that he did not know the nature or details of Plaintiffs job and assumed that Plaintiff would undergo another examination by the company doctor for the determination of whether he was fit to return. The physician stated that “it was my understanding that [Plaintiff] was supposed to be assessed by company people” and the retum-to-work slip was meant to indicate he “thought it was safe to undergo that test.”

At the time of his injury, Plaintiff was working in assembly-type production of explosive-filled shells. The job required him to rotate through various positions involving the filling, packing, and moving of explosive powder and shells. These tasks necessitated making the same motions hundreds of times a day.

After examining Plaintiff, the company physician, Dr. Doody, recommended that Plaintiff not be retained in his current position. Doody testified at trial that he was concerned that the repetitive twisting, bending and lifting required by Plaintiffs former job may, over a period of time, cause his neck and back problems to return.

Administrators working for Defendant acted upon Doody’s recommendation and considered the possibility of transferring Plaintiff to another position. They eventually decided there was no position available which Plaintiff could perform without jeopardizing his health and sent Plaintiff a termination letter. The letter, dated December 26, 1991, and a subsequent service letter dated February 7, 1992, noted the results of Dr. Doody’s examination and Plaintiffs “medical condition” as the basis for the termination.

At the time, Plaintiff was pursuing a worker’s compensation claim based on his disability and in July, 1992, was examined by Dr. Moshen. Moshen rated Plaintiff at 15% disability, and there was evidence that Plaintiff told the doctor he was experiencing pain in his shoulders and left arm and had muscle spasms.

An occupational medicine physician, Dr. Estep, testified at trial that there was a greater than normal risk that Plaintiff would re-injure his neck and back should he attempt to return to his former job.

After being terminated by Defendant, Plaintiff eventually obtained employment repairing and constructing mobile and modular homes. Plaintiff testified that this job required him to lift bundles and other items weighing more than 50 pounds, climb lad[948]*948ders, work above his head and perform other physically demanding tasks. He also testified that the construction job did not require repetitive motions or heavy lifting more than two or three times a day, and he could take a break when he felt excessive pain or strain.

Plaintiff filed a complaint with the Missouri Commission on Human Rights (MHCR) on April 30, 1992, and the MHCR issued a Right to Sue letter, pursuant to § 213.111, RSMo 1986.

Point I.

Plaintiff contends in his first point that the trial court’s finding that he had a physical condition that interfered with his ability to work at “his prior job or any other job for which he was qualified” was reversible error.

In a court-tried case, the trial court’s judgment will be affirmed unless there is no substantial evidence to support it, unless it is against the weight of the evidence, or unless it erroneously declares or applies the law. Welshans v. Boatmen’s Bancshares, Inc., 872 S.W.2d 489, 493 (Mo.App.1994). The appellate court defers to the trial court’s resolution of witness credibility. Id. The trial court may accept or reject all, part, or none of the testimony of witnesses. Behr v. Bird Way, Inc., 923 S.W.2d 470, 476 (Mo.App.1996).

In his reply brief, Plaintiff argues that his medical condition may have created a risk of injury if he were to return to work at Defendant’s factory, but it did not interfere, per se, with his performance of that work. He concludes from this that the trial court committed a “reversible error of law.”

As Plaintiff acknowledges, MCHR rules construing provisions dealing with handicap discrimination allow employers to take into account a person’s disability if it is job related. 8 CSR 60--3.060(l)(F)2-3. The rules also indicate that a threat to the person or others’ safety may make a disability job related. 8 CSR 60-3.060(l)(F). A disability that does not make a job physically impossible, but jeopardizes safety may in this way interfere with a person’s ability to perform the job. See, e.g., City of Clayton v. Mo. Comm’n on Human Rights, 821 S.W.2d 521, 531 (Mo.App.1991) (threat to public safety considered legitimate reason for discharge).

Plaintiff does not dispute findings by the trial court that Plaintiff risked re-injuring his neck and back if he returned to his job at the factory. According to the findings, Plaintiff could suffer muscle spasms, numbness of the hands, pain and paralysis. The trial court also noted that the factory work “involved dangerous activity in which good health and physical condition was a primary consideration to the job.”

There was substantial evidence to support the finding that Plaintiffs physical condition interfered with his ability to perform the essential functions of employment at the factory. Point one is denied.

Point II.

In his second point, Plaintiff contests the trial court’s ruling that reasonable accommodations for his disability were not available. The point says:

The trial court erred in finding that Defendant could not make reasonable accommodations for [Plaintiff] because [Plaintiff] needed no accommodations, and even if he did, Defendant had made accommodations in the past for similarly situated employees and Defendant could have done so for [Plaintiff].

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938 S.W.2d 946, 1997 Mo. App. LEXIS 206, 1997 WL 58961, Counsel Stack Legal Research, https://law.counselstack.com/opinion/snyder-v-ici-explosives-usa-inc-moctapp-1997.