In this declaratory judgment action the plaintiff asked the trial court to determine the applicability of a statute of limitations defense to his contemplated personal injury action against the defendants.
ISSUES ON APPEAL
In Point I the plaintiff argues that interpreting § 287.120 as placing exclusive authority with the Labor and Industrial Relations Commission to determine whether his injuries were the product of an accident or an intentional act by his employer deprives him of his constitutional right to access to the courts under Mo. Const, art. I, § 14, as well as violating the separation of powers doctrine, Mo. Const, art. II, § 1. Because these samе challenges to § 287.120 (as applied in Killian) were rejected by our supreme court in Goodrum v. Asplundh Tree Expert Co.,
In Point II the plaintiff argues that Kil-lian is substantive in nature and was decided after his workers’ compensation claim was dismissed with prejudice and that application of Killian to the plaintiff’s case “works an unconstitutiоnal retrospective statutory application on” the plaintiff contrary to Mo. Const, art. I, § 13. Because this constitutional question was not raised in the trial court and preserved in the trial court record, it cannot be heard on appeal. City of St. Louis v. Butler Co.,
FACTS
The plaintiff was employed as a silk screener at defendant Rawlings’s Licking, Missouri, plant from 1977 through 1980 and again in 1982. Defendant Haught was plant manager during some or all of the plaintiff’s period of employment.
In his petition the plaintiff alleged that, during his employment, he came into contact with neurotoxic chemicals that progressively destroyed his nervous system, causing permanent injury which necessitates permanent nursing care.
The legal file recounts the plaintiff’s attempts to obtain workers’ compensation benefits. On August 19, 1983, the plaintiff (represented by an attorney different from the one now representing him) filed a workers’ compensation claim, which he amended September 15, 1986. On October 28, 1987, the chief administrative law judge entered an order in favor of Rawlings and against the plaintiff.
On May 24, 1991, the plaintiff filed this action in circuit court, alleging that the defendants had committed an intentional tort against him and, as a result, the exclusivity section of the workers’ compensation statute did not apply. In his petition he did not seek damages for his alleged tort claim but, rather, sought a declaration that his tort claim would not be barred by the five-year limitation period of § 516.120 because “the precise nature of his damage and the causal connection to the acts of the dеfendants were not ‘capable of ascertainment’ ” until early in 1988.
The defendants individually filed motions to dismiss and, alternatively, for summary judgment, claiming the exclusive remedy provisions of § 287.120, RSMo 1986, deprived the circuit court of jurisdiсtion. In its suggestions in support of its motion,
The trial court concluded it did not have subject matter jurisdiction and sustained the defendants’ motions to dismiss.
DISCUSSION
The plaintiff concedes that “on its face” Killian,
The constitutional chаllenges which the plaintiff mounts in Point I to the Killian interpretation of § 287.120 were rejected by our supreme court in Goodrum,
In response to plaintiffs’ open courts сhallenge, we find that § 287.120, as applied in Killian, “is an exercise of legislative authority rationally justified by the end sought, and hence valid against the contention made here.”
Goodrum,
The system of judicial review provides a check upon the powers exercised by the administrative agency, and in this instance [under the Killian scheme under which the Commission makes the initial determination whether it has jurisdiction over the matter] it cannot be said that the pоwers of the Commission encroach upon those of the judiciary in a manner prohibited by the constitution. In sum, we find no violation of the separation of powers.
Goodrum,
The plaintiff’s arguments in support of Point I might be read as urging us to conclude that the supreme court’s opinions in Killian and Goodrum were, simply, wrongly decided; that, as a matter of gen
In his second point on appеal, the plaintiff contends the trial court erred because “the interpretation of § 287.120 which places the decision making authority with the administrative law judge may not be retrospectively applied to [the plaintiff] because this statutory interpretation is substantive in nature and was decided after [the plaintiff’s] worker’s compensation case was dismissed. (Emphasis in original.)”
The plaintiff’s argument is constitutionally based. He charges, “Any retrоspective application of the doctrine violates the provisions of Article I, § 13 of the Missouri Constitution, and must be reversed.” The plaintiff raises an alleged violation of Article I, § 13 for the first time on appeal. For constitutional questions of the nature of those we perceive as being raised in the plaintiff’s Point II to be preserved for appellate review, those questions “must be presented at the earliеst possible moment ‘that good pleading and orderly procedure will admit under the circumstances of the given case[;] otherwise [they] will be waived.’ ” Meadowbrook Country Club v. Davis,
Order of dismissal affirmed.
Notes
. Because this case can be disposed of without deciding if a declarаtory judgment action is appropriate to determine, in such an advisory fashion, whether a statute of limitations defense applies to a contemplated lawsuit, we decline to discuss that question. Our silence on that issue should not be read as implicit approval of such use of a declaratory judgment action.
. All statutory references are to RSMo 1986, unless otherwise indicated.
. In Killian, the court held that the question whethеr a claimant’s injuries are "the product of an accident or of an intentional act by the employer lies within the exclusive jurisdiction of the Labor and Industrial Relations Commission. ‘Neither the trial court nor this Court can make that determination.’ ”
. In oral argument the plaintiffs counsel asserted that the ALJ denied the claim because of insufficient evidence of causation. Although the portion of the AU award filed with this court is silent as tо the reason for the denial of the claim, the defendants' counsel — who was also the defendants’ counsel in the workers’ compensation case — did not refute the assertion.
. We have, ex gratia, considered the plaintiffs second point and argument. The nub of the plaintiffs argument is found in this passage from his brief:
The Killian decision stands as a judicial explanation of statutory authority, placing the decision within the proscriptions in Article I, § 13. While this prohibition is inapplicable to purely judicial decision[s], such as divorce decrees, In Re Símpelo,542 S.W.2d 558 (Mo. App.W.D.1976), a legislative enactment, or its interpretation and application by the Court, lies within that proscription.
The plаintiff cites no authority for his apparent assertion that Article I, § 13, although not applicable to trial court decisions, does apply to the "explanation,” "interpretation,” and "application" of a statute by an appellate court. The plaintiffs argument, in the context of an ex post facto argument, was rejected in Moore v. State,651 S.W.2d 578 , 580-81 (Mo.App.1983). We believe the rationale of Moore controls on the merits of the plaintiffs allegation of error. See also State ex rel. Clark v. Shain,343 Mo. 66 ,119 S.W.2d 971 , 972-73 (Mo. banc 1938).