                                Missouri Court of Appeals
                                          Southern District
                                              Division Two


MARK E. McGUIRE,                                             )
                                                             )
           Claimant-Respondent,                              )
                                                             )
vs.                                                          )   No. SD32731
                                                             )
CHRISTIAN COUNTY,                                            )   Filed May 5, 2014
                                                             )
           Employer-Appellant,                               )
                                                             )
and                                                          )
                                                             )
MISSOURI ASSOCIATION OF COUNTIES,                            )
                                                             )
           Insurer-Appellant.                                )

     APPEAL FROM THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

AFFIRMED

           Christian County and its insurer, Missouri Association of Counties, appeal the

Final Award of the Labor and Industrial Relations Commission (“the Commission”)

issued in favor of Mark E. McGuire (“Claimant”), Ozark Baseball Club, L.C. (“OBC”),

and Travelers Commercial Casualty Co., OBC’s insurer. Christian County brings three

points for our review: (1) that the Commission erred in dismissing OBC as a party

because section 287.1301 mandates joint and several liability between joint employers



1
    All statutory references are to RSMo Cum.Supp. 2003.
and Rule 57.042 requires all necessary parties to be joined in an original proceeding; (2)

that the Commission erred in finding that the Administrative Law Judge (“ALJ”) violated

principles of due process in determining whether contribution on the part of OBC was

appropriate under section 287.130; and (3) that the Commission erred in not considering

whether the apportioned rate of contribution determined by the ALJ was supported by

competent and substantial evidence. Finding Christian County’s first point meritless and

dispositive, we affirm.

                                 Factual and Procedural Background

           Claimant worked for the Christian County Sheriff’s Department (“CCSD”) as a

deputy sheriff. Claimant normally worked ten-hour shifts on Monday through Thursday.

Claimant also worked as a security officer for OBC, which operated a baseball team

known as the Ozark Ducks. OBC wanted to hire security personnel who had the ability

to arrest people if necessary, and Claimant learned about the OBC job through a sign-up

sheet posted at the CCSD. Although CCSD authorized its employees to work security for

OBC, no employee was required to do so.

           On Friday, August 9, 2003, Claimant had already worked forty hours that week

for the CCSD; if at any time he incurred more than forty hours of CCSD duties in a single

week, the additional time would be compensated through “comp time,” which was time

off that could be utilized at a later date. At approximately 10:30 that evening, while

working security for OBC after a baseball game, Claimant encountered an inebriated

couple who were intent on driving their vehicle to leave the ballpark. Claimant stopped

the couple and secured a cab, but when the cab arrived, the couple got into their own


2
    All rule references are to Missouri Court Rules (2013).



                                                       2
vehicle and attempted to leave the parking lot. Claimant anticipated the commission of a

crime and contacted CCSD to request back-up assistance, as well as to indicate that he

was going “on duty” as a deputy sheriff at that time. The drunk driver started his vehicle

and, as Claimant attempted to stop the vehicle from leaving through the facility’s only

exit, the vehicle struck Claimant. The impact flipped Claimant over the hood of the car,

into the windshield, and onto the ground. Claimant sustained severe injuries to his knee

and back; in addition to a torn medial meniscus, Claimant ruptured disks at three levels

on his spine and suffered recurrent herniations, which prompted two discectomies, an

artificial disc replacement, and eventually a back fusion. As a result of the injuries

sustained that night, Claimant never returned to work as a deputy sheriff and was forced

to leave his employment in law enforcement. He continued to operate a floor covering

business, which he had operated for several years, but not in the same capacity as before

the accident.

         Claimant filed a claim for workers’ compensation benefits against Christian

County and its insurer. A hardship hearing on this claim was held on November 17,

2006. At that time, the ALJ issued a Temporary/Partial Award directing Christian

County and its insurer to provide certain medical care to Claimant.

         On March 16, 2009, Christian County and its insurer filed a motion entitled

“Application of Christian County Pursuant to Section 287.040.[4][3] to Make [OBC] a



3
  In its final award, the Commission found that (1) the 2003 version of section 287.040 was applicable to
this case, (2) the parties’ and the ALJ’s references to section 287.040.3 were to the 2005 version of that
statute and (3) the relevant provisions of each version are identical. Christian County does not challenge
these findings on appeal. The relevant provisions of the 2003 version of section 287.040 are:

         1. Any person who has work done under contract on or about his premises which is an
         operation of the usual business which he there carries on shall be deemed an employer
         and shall be liable under this chapter to such contractor, his subcontractors, and their


                                                      3
Party to the Proceedings” and recited in its application the provisions of sections

287.040.1 and 287.040.4, which pertain to contractors and subcontractors and their

joinder as a party in a workers’ compensation proceeding. The application to join OBC

was sustained by the ALJ, but the determination of other issues was deferred.

         Claimant thereafter settled his claim for compensation against Christian County

and its insurer.

         At the final evidentiary hearing on the remaining issues, OBC asserted and

contended that section 287.040 was an insufficient basis for its joinder as a party because

it was not a contractor or subcontractor of Christian County. Christian County responded

by claiming that section 287.040 “was just one of many reasons in the application that we

offered in support, so we weren’t specifically limiting just to that.”

         In her decision, the ALJ specifically found that Claimant was not an independent

contractor and that OBC was not a contractor or subcontractor of Christian County.

Rather, the ALJ found that OBC and Christian County were joint employers of Claimant.

The ALJ went on to find that, although the initial joinder of OBC pursuant to section


         employees, when injured or killed on or about the premises of the employer while doing
         work which is in the usual course of his business.

         ****

         4. In all cases mentioned in the preceding subsections, the immediate contractor or
         subcontractor shall be liable as an employer of the employees of his subcontractors. All
         persons so liable may be made parties to the proceedings on the application of any party.
         The liability of the immediate employer shall be primary, and that of the others secondary
         in their order, and any compensation paid by those secondarily liable may be recovered
         from those primarily liable, with attorney's fees and expenses of the suit. Such recovery
         may be had on motion in the original proceedings. No such employer shall be liable as in
         this section provided, if the employee was insured by his immediate or any intermediate
         employer.

Renumbering subsection 4 to “3” was the only change made to these provisions in the 2005 version. For
clarity in this opinion, we will refer to the 2003 version of subsection 4, even where the parties or the ALJ
may have referenced the 2005 version by subsection “3.”



                                                      4
287.040 was incorrect, because OBC was found to be a joint employer, section 287.130

permitted the joinder of OBC because Christian County and its insurer would be entitled

to proceed against OBC in a civil action for contribution. In making this determination,

the ALJ noted, “It is not only fair for [Christian County] to seek contribution against

[OBC] in this proceeding, but it would be patently unfair to refuse to join such entity

when it is liable for a share of the benefits received by [Claimant] if [OBC] was a joint

employer.” The ALJ further cited to Tate v. Dir. of Revenue, 982 S.W.2d 724, 727

(Mo.App. 1998), stating, “A bench-tried ruling that reaches the correct result will not be

set aside even if the court gives a wrong or insufficient reason.” Finally, the ALJ found

that OBC was liable to Christian County for 14.8 percent of the agreed-upon settlement

amount of $381,318.27, totaling $56,435.10. This amount was calculated using the

statutory minimum set forth in section 287.190.5, as OBC did not produce any evidence

of Claimant’s compensation under its employ.

       OBC timely sought review by the Commission of the ALJ’s award on several

issues, including whether the ALJ lacked the authority to join OBC as a joint employer

and the accuracy of the ALJ’s determination of OBC’s imputed rate of contribution.

Christian County also sought review by the Commission, contending that the ALJ should

have found OBC to be Claimant’s sole employer at the time of the accident, and that, if

they were joint employers, the ALJ erred in limiting OBC’s rate of contribution to 14.8

percent.

       In its Final Award Allowing Compensation, the Commission struck OBC as a

party to the proceeding and reversed the ALJ’s award of contribution from OBC to

Christian County. The Commission found that the ALJ’s decision to continue OBC as a




                                             5
party to the action once joinder under section 287.040 was deemed inapplicable was

erroneous. The Commission concluded that section 287.130, the section upon which the

ALJ relied to keep OBC a party to the case, “does not confer upon [Christian County],

the [ALJ], or the Commission the power to add OBC as a party to employee’s workers’

compensation claim.” Rather, the Commission concluded that section 287.130 confers

upon the employee the discretionary right to pursue claims against any or all of his or her

employers, while permitting an employer to initiate an action for contribution against

another alleged joint employer in a subsequent action. The Commission relied upon

Leach v. Bd. of Police Comm’rs of Kansas City, 118 S.W.3d 646, 651-52 (Mo.App.

2003), and Schultz v. Moerschel Prods. Co., 142 S.W.2d 106 (Mo.App. 1940), in

reaching this conclusion.

       This appeal timely followed.

                                     Standard of Review

       Our review of this case is governed by Section 287.495.1, which provides, in

pertinent part:

       Upon appeal no additional evidence shall be heard and, in the absence of
       fraud, the findings of fact made by the commission within its powers shall
       be conclusive and binding. The court, on appeal, shall review only
       questions of law and may modify, reverse, remand for rehearing, or set
       aside the award upon any of the following grounds and no other:

                  (1) That the commission acted without or in excess of its powers;

                  (2) That the award was procured by fraud;

                  (3) That the facts found by the commission do not support the
       award;

              (4) That there was not sufficient competent evidence in the record
       to warrant the making of the award.




                                               6
          “In conducting our review, we review the findings of the Commission, and not

those of the ALJ.” Bowers v. Hiland Dairy Co., 132 S.W.3d 260, 264 (Mo.App. 2004).

We “defer to the commission on issues of fact, the credibility of the witnesses, and the

weight given to conflicting evidence.” Treasurer of State-Custodian of Second Injury

Fund v. Witte, 414 S.W.3d 455, 460 (Mo. banc 2013) (citing Hornbeck v. Spectra

Painting, Inc., 370 S.W.3d 624, 629 (Mo. banc 2012)). Issues of law are reviewed de

novo. Id. (citing Difatta–Wheaton v. Dolphin Capital Corp., 271 S.W.3d 594, 595 (Mo.

banc 2008)). “An issue of statutory interpretation is a question of law, not fact.” Id.

(citing City of St. Joseph v. Village of Country Club, 163 S.W.3d 905, 907 (Mo. banc

2005)).

                                              Discussion

          In its first point, Christian County contends that the Commission erred in

concluding that neither the ALJ nor the Commission has the authority to join OBC as a

party to the underlying action because section 287.130 provides for joint and several

liability between employers and Rule 57.04 requires all necessary parties be joined in the

original proceeding. We disagree.

          “As a general proposition, the Missouri Rules of Civil Procedure . . . do not apply

to workers’ compensation actions, unless the statute implicates the application of a

specific rule.” U.S. Dept. of Veterans Affairs v. Boresi, 396 S.W.3d 356, 362 (Mo. banc

2013) (internal quotation marks omitted). Indeed, counsel for Christian County conceded

as much at oral argument.4 As there is no reference to the applicability of Rule 57.04 in


4
 Moreover, in refuting OBC’s claims regarding Christian County’s alleged pleading deficiencies and
alleged lack of timeliness in joining OBC, Christian County’s counsel affirmatively asserted in oral
argument that the Missouri Rules of Civil Procedure do not apply to workers’ compensation actions.



                                                    7
chapter 287 and, in particular, in section 287.130, Christian County’s reliance upon Rule

57.04 in support of its argument on this point is misplaced and incorrect.

       The remainder of Christian County’s argument on this point focuses on the

language used in section 287.130 and its application in the underlying case. Section

287.130 provides:

               If the injury or death occurs while the employee is in the joint
       service of two or more employers, their liability shall be joint and several,
       and the employee may hold any or all of such employers. As between
       themselves such employers shall have contribution from each other in the
       proportion of their several liability for the wages of such employee but
       nothing in this chapter shall prevent such employers from making a
       different distribution of their proportionate contributions as between
       themselves.

Christian County contends that the use of the word “shall” with regard to “joint and

several liability” and “contribution” creates not only a right to contribution on behalf of

Christian County, but implies the additional mandatory right to join in the proceeding on

the employee’s claim any other alleged joint employer. In the absence of citation to any

controlling legal authority supporting this contention, Christian County, nevertheless,

asks us to interpret section 287.130 as implicitly mandating joinder of an alleged joint

employer, even though the statute is completely silent on that issue.

                The rules of statutory interpretation are not intended to be applied
       haphazardly or indiscriminately to achieve a desired result. Instead, the
       canons of statutory interpretation are considerations made in a genuine
       effort to determine what the legislature intended. This Court’s primary
       rule of statutory interpretation is to give effect to legislative intent as
       reflected in the plain language of the statute at issue.

Parktown Imports, Inc. v. Audi of America, Inc., 278 S.W.3d 670, 672 (Mo. banc 2009).

“If the intent of the legislature is clear and unambiguous, by giving the language used in

the statute its plain and ordinary meaning, then we are bound by that intent[.]” Goerlitz

v. City of Maryville, 333 S.W.3d 450, 455 (Mo. banc 2011) (internal quotation marks


                                              8
omitted). “A court may not add words by implication to a statute that is clear and

unambiguous.” Asbury v. Lombardi, 846 S.W.2d 196, 202 n.9 (Mo. banc 1993).

Moreover, individual phrases or statutes cannot be read separately, Gash v. Lafayette

Cnty., 245 S.W.3d 229, 232 (Mo. banc 2008); rather, “[t]he provisions of a legislative act

are . . . construed together and read in harmony with the entire act.” Mo. Dep’t of Soc.

Servs., Div. of Aging v. Brookside Nursing Ctr., Inc., 50 S.W.3d 273, 276 (Mo. banc

2001). “[W]e presume the legislature intended every word, clause, sentence, and

provision of a statute to have effect and did not insert superfluous language into the

statute.” Algonquin Golf Club v. State Tax Comm’n, 220 S.W.3d 415, 421 (Mo.App.

2007).

         The Western District of our Court has found that the language of section 287.130

is “plain and unequivocal[.]” Leach, 118 S.W.3d at 652. As related to joint employers,

         In this statute, the General Assembly articulated that the employers’
         liability is joint and several and that the employee has the option of
         picking which of them that he will hold liable for his compensation.
         Rather than limiting an employee’s recovery to a particular employer, the
         General Assembly permitted the employer or employers from whom he
         takes recovery to proceed against the other employers in a subsequent
         action for contribution.

Id. at 651.

         Therefore, section 287.130—which Christian County now asserts as its basis for

OBC’s joinder to the action—expressly confers upon the employee the discretion to

assert a claim against any or all employers. Section 287.130; Leach, 118 S.W.3d at 651;

Schultz, 142 S.W.2d at 108. It also confers a right of contribution between joint

employers that may be enforced in a subsequent action. Id. It does not, however, make

any provision for the joinder of any alleged joint employer against which the claimant has

not asserted a claim.


                                             9
       Interpreting section 287.130 as Christian County suggests would nullify and

render superfluous the provision granting the employee discretion to choose which of his

or her alleged joint employers against which to assert a claim. Because we presume the

legislature intended for that provision to have effect, Algonquin Golf Club, 220 S.W.3d

at 421, we cannot find the existence of any implied provision contrary to the clear and

unambiguous language expressed in this statute, Asbury, 846 S.W.2d at 202 n.9.

       This conclusion is reinforced when we consider section 287.130 in harmony with

section 287.040, related to contractors and subcontractors. Section 287.040.4 provides:

“[T]he immediate contractor or subcontractor shall be liable as an employer of the

employees of his subcontractors. All persons so liable may be made parties to the

proceedings on the application of any party.” Section 287.040.4 (emphasis added).

Section 287.040 expressly and unambiguously grants any party to a workers’

compensation action the right to join an alleged contractor or subcontractor to the action

and gives the Commission the authority to join them. The inclusion of this express

provision for joinder of other alleged employers in section 287.040 supports the

conclusion that the omission of any joinder provision in section 287.130 demonstrates

that the legislature did not intend to authorize the joinder of any alleged joint employers

against whom a claim had not been filed by the employee.

       Therefore, we find nothing in section 287.130 that authorizes the Commission to

join an alleged joint employer against whom the employee has not asserted a claim in

considering an employee’s workers’ compensation claim. Here, Claimant chose to hold

only Christian County liable for his injuries, as was his exclusive right, and Christian




                                             10
County is afforded the right to seek contribution from OBC in a separate action. Section

287.130; Leach, 118 S.W.3d at 651; Schultz, 142 S.W.2d at 108.

         The Commission has only such authority as is conferred upon it by statute. Mikel

v. Pott Indus./St. Louis Ship, 896 S.W.2d 624, 626 (Mo. banc 1995). Because joinder of

an alleged contractor or subcontractor is specifically authorized under section 287.040,

the initial application to join OBC as a party in accordance with that section was an

action statutorily authorized by the Commission and, therefore, the ALJ. However,

because section 287.130 does not grant the Commission any authority to join OBC as an

alleged joint employer, the Commission did not commit any error in striking OBC as a

party in the proceeding and in denying Christian County any relief as against OBC.

Christian County’s first point is denied and, because its denial is also dispositive of

Christian County’s other points on appeal, the Commission’s decision is affirmed.5



GARY W. LYNCH, J. - Opinion author

JEFFREY W. BATES, P.J. - concurs

DON E. BURRELL, J. - concurs




5
 Christian County relies on Equity Mut. Ins. Co. v. Kroger Grocery & Baking Co., 175 S.W.2d 153
(Mo.App. 1943), and Pennington v. Deca Prop. Mgmt., 109 S.W.3d 235 (Mo.App. 2003), in support of its
argument. Neither case is on point. The former is distinguishable in that it is not a workers’ compensation
claim but, rather, a civil claim for contribution of the sort permitted by section 287.130. The latter is
distinguishable in that it deals not with the joinder of an alleged joint employer but with the joinder of an
employer’s insurer, as required by section 287.300.


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