Mark McGuire v. Christian County Sheriff's Department; Ozark Baseball Club

Injury No.: 03-082360

Employee: Mark McGuire

Employers: 1) Christian County Sheriff's Department (Settled)

2) Ozark Baseball Club (Alleged)

Insurers: 1) Missouri Association of Counties (Settled)

2) Traveler's Commercial Casualty Company (Alleged)

Additional Party: Treasurer of Missouri as Custodian of Second Injury Fund

This workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by $\S 287.480 RSMo. { }^{1}$ We have reviewed the evidence, heard the parties' arguments and considered the whole record and we find that the award of the administrative law judge is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law, except as modified herein. We adopt the findings, conclusions, decision, and award of the administrative law judge to the extent that they are not inconsistent with the findings, conclusions, decision, and modifications set forth below.

We affirm the administrative law judge's award as it relates to employee's claim against the Second Injury Fund.

We reverse the administrative law judge's award as it relates to the claim of Christian County Sheriff's Department/Missouri Association of Counties (CCSD) against Ozark Baseball Club (OBC). The reader is directed to the administrative law judge's award attached hereto for details regarding how the employee in this matter was injured. For purposes of this award, we will make and/or recite only those findings necessary for a clear understanding of the rights of CCSD vis-à-vis OBC.

Briefly, employee was a full-time CCSD sheriff's deputy. He also worked as a uniformed security guard for OBC, a minor league baseball club. On August 9, 2003, an inebriated driver hit employee with a car in the OBC parking lot while employee was attempting to stop the driver from driving under the influence.

Below is a timeline of relevant events in the life of this claim:

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[^0]: ${ }^{1}$ Statutory references are to the Revised Statutes of Missouri 2003, unless otherwise indicated.

Employee filed a workers' compensation claim against CCSD. Employee did not file a claim against OBC. Although CCSD was aware of the circumstances of the employee's injury, CCSD took no action to make OBC a party to employee's claim until March 16, 2009 $-51 / 2$ years after the injury.

CCSD's March 16, 2009, request (event G in timeline) is entitled Application of Christian County Pursuant to Section 287.040.3 to Make Ozark Baseball Club, L.C. a Party to the Proceedings (hereinafter, "CCSD Joinder Request"). By the CCSD Joinder Request, CCSD alleged, among other things:

Employee was providing security for and work on the premises of Price Cutter Ballpark, where the Ozark Mountain Ducks, a minor league baseball team played their home games.

Discovery has determined that the [employee] was actually under a contract with and working under the direction and control of the [OBC]...on the date of the alleged injury...

[CCSD recited the provisions of the 2005 version of subsection 287.040.1 and 287.040.3 RSMo. $]^{2}$

Employee was employed by the [OBC] on their premises, under their control which results in said employer being primarily responsible for the injuries to the employee occurring on August 9, 2003.

Christian County and Gallagher Bassett Services, Inc. have paid medical expenses in the amount of $\ 146,482.13 with the last payment on March 9, 2009 and temporary total disability in the amount of $\ 9,836.14 with the last payment made on July 20, 2007.

As the primary employer, [OBC] should be a party to these proceedings and should be ordered to reimburse Christian County and Gallagher Bassett Services, Inc. all expenses incurred including costs of defense and pay any further liabilities ordered herein.

By handwritten notation on CCSD's Joinder Request, the administrative law judge granted the request to join OBC as a party and deferred ruling other issues.

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[^0]: ${ }^{2} The 2003 version of \S 287.040$ is applicable to this case but the administrative law judge and the parties referenced the 2005 version. The relevant provisions of each version are identical.

The record reveals that OBC challenged the administrative law judge's action in granting the CCSD's Joinder Request at every opportunity, including at the December 22, 2011, hearing.

The administrative law judge initially described one issue in dispute as "[w]hether or not Christian County's motion to bring in Ozark Baseball Club, LLC as a party was appropriately sustained." Counsel for OBC requested clarification: "I would ask that that specifically call into question whether that was appropriate in that Christian County cited Section 287.040.3." Counsel for CCSD responded, "that was just one of many reasons in the application that we offered in support, so we weren't specifically limiting just to that, but I think that narrows the issue way too much..." The administrative law judge ultimately framed the issue thusly:

I am going to leave the issue as to whether or not...I think it's more...I think it's beneficial to both parties to leave the issue as to whether it was appropriate to bring the Ozark Baseball Club, Incorporated in as a party, okay?

In resolution of the joinder issue, the administrative law judge concluded:

While the evidence eventually failed to prove a contractual relationship between Ozark Baseball Club and CCSD, does not mean the initial joinder was improper. Subsequent to its joinder, however, other reasons were raised to keep Ozark Baseball Club in the case.

As the case has developed, CCSD and MAC actually had a different reason for joining the Ozark Baseball Club. Counsel for CCSD and MAC have conceded that the wrong statute may have been cited in the original motion seeking to join Ozark Baseball Club. As made evident at the final hearing, and as clearly demonstrated in its post-hearing brief, CCSD and MAC seek money from Ozark Baseball Club as a "joint employer" rather than as a subcontractor. Such action is authorized in the Workers' Compensation Law:

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.

§ 287.130, RSMo. CCSD and its insurer have a statutory right to proceed against Ozark Baseball Club as a joint employer, even if the employee

never named Ozark Baseball Club as a party in its Claim for Compensation.

Even if it may be said that the Administrative Law Judge erred in initially joining Ozark Baseball Club as a party under § 287.140 RSMo, it was not improper to join that entity for purposes of contribution under § 287.130 RSMo. A bench-tried ruling that reaches the correct result will not be set aside even if the court gives a wrong or insufficient reason. *Tate v. Director of Revenue*, 982 S.W.2d 724, 727 (Mo. App. E.D. 1998). I conclude that it was proper to join Ozark Baseball Club either for reimbursement or contribution. Even if the wrong statutory provision initially was cited, the proceeding against the alleged joint employer is authorized by statute.

The administrative law judge ultimately ruled employee was in the joint employment of CCSD and OBC at the time of the accident. The administrative law judge awarded contribution from OBC to CCSD.

OBC filed an application for review challenging the administrative law judge's award of contribution from OBC to CCSD. CCSD filed an application challenging the administrative law judge's calculation of the amount of contribution due CCSD from OBC.

Section 287.040 RSMo (2003) provides, in relevant part:

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

1. 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.

Improve: Mark McGuire

- 5 -

Section 287.130 RSMo (2003) 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.

At the outset, we note that CCSD's entitlement to contribution from OBC under § 287.130 RSMo was not identified as an issue for resolution at trial. The administrative law judge's decision to rule against OBC on that basis likely runs afoul of due process. See Stonecipher v. Poplar Bluff R1 Sch. Dist., 205 S.W.3d 326 (Mo. App. 2006). And, arguably, the administrative law judge's ruling regarding contribution went beyond the stipulated issues for trial and, thus, the ruling was in excess of her power. ${ }^{3}$ See Boyer v. Nat'l Express Co., 49 S.W.3d 700 (Mo. App. 2001). Because we believe the administrative law judge erred as a matter of law in concluding OBC is a party to this proceeding, we will not discuss these matters further.

Although the administrative law judge's decision in 2009 to add OBC as a party to these proceedings on the request of CCSD may have been appropriate, the administrative law judge's decision to continue OBC as a party after she determined § 287.040.4 was not applicable was erroneous. Once the administrative law judge determined joinder under $\S 287.040 .4$ was inappropriate, the administrative law judge should have dismissed OBC from the proceedings. This is so because the provision the administrative law judge relied upon to keep OBC in this case - § 287.130 RSMo - does not confer upon CCSD, the administrative law judge, or the Commission the power to add OBC as a party to employee's workers' compensation claim.

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. See, e.g., Schultz, 142 S.W.2d at 108, and Equity Mutual Insurance Company, 175 S.W.2d at 155. "The statute gives claimant the exclusive right to determine whom he will seek to hold; and it gives employers the right to seek equitable contribution from 'each other." Schultz, 142 S.W.2d at 108.

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[^0]: ${ }^{3}$ Rule 8 CSR 50-2.010(14), provides that "hearings before the division shall be simple, informal proceedings. The rules of evidence for civil cases in the state of Missouri shall apply. Prior to hearing, the parties shall stipulate uncontested facts and present evidence only on contested issues."

Leach v. Bd. of Police Comm'rs of Kan. City, 118 S.W.3d 646, 651-652 (Mo. App. 2003) (emphasis ours), citing Schultz v. Moerschel Prods. Co., 142 S.W.2d 106 (Mo. App. 1940) and Equity Mut. Ins. Co. v. Kroger Grocery \& Baking Co., 175 S.W.2d 153 (Mo. App. 1943).

The statute gives the employe the right to pursue any or all of his employers as he sees fit. He is not compelled to file any claim at all. That is a matter for him to decide. How, then, can it be said that, because he has sought to hold one alleged employer he must, upon motion of that employer (who denys [sic] that he is an employer), be compelled, willy nilly, to pursue a claim against any number of others? The Workmen's Compensation Act is a law and code unto itself. In construing it we will be guided by the general intent of the legislature as expressed in the law itself. We will construe such of its provisions as are ambiguous; but in this instance the meaning of the statute is clear and its terms are unambiguous. There is no room for construction. The statute gives claimant the exclusive right to determine whom he will seek to hold; and it gives employers the right to seek equitable contribution from "each other." We do not pass on the question of the right of the employe, or of the commission, in a proper case and under proper procedure, to bring in other parties necessary to a final determination of a claim pending.

Schultz, 142 S.W.2d at 108 -109 (Mo. App. 1940)(emphasis in original)(internal citation omitted).

The legislature gave the employee the option to decide against which of several joint employers he wishes to proceed. Here, employee chose CCSD. CCSD is bound by employee's choice. But CCSD is not without a remedy, for CCSD can seek contribution against OBC in a "subsequent action for contribution." See Leach, 118 S.W.3d at 652. That being so, it is clear that OBC was not a necessary party to employee's workers' compensation claim.

The administrative law judge erred in continuing OBC as a party to these proceedings once she determined that $\S 287.040 .4$ was not applicable. OBC is not a party to these proceedings.

We reverse the administrative law judge's award of contribution from CCSD to OBC.

In all other respects, we affirm the administrative law judge's award.

We further approve and affirm the administrative law judge's allowance of attorney's fee herein as being fair and reasonable.

Any past due compensation shall bear interest as provided by law.

The award and decision of Administrative Law Judge Victorine R. Mahon, issued March 15, 2012, is attached and incorporated by this reference, except to the extent modified herein.

Given at Jefferson City, State of Missouri, this $24^{\text {th }}$ day of April 2013.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

Chairman

James Avery, Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

1. Nature and extent of any permanent disability: Settled as Christian County Sheriff's Department and its insurer for 50 percent body as a whole referable to the back and 25 percent of the right knee. Second Injury Fund has liability for enhanced permanent partial disability.
2. Compensation paid to date for temporary disability: $\ 9,836.14.
3. Value necessary medical aid paid to date by employer/insurer? $\$ 146,482.13+ allowance for future medical in the amount of \ 160,200, as set forth in the settlement.
4. Value necessary medical aid not furnished by employer/insurer? None.
5. Employee's average weekly wages: Sufficient to yield the following compensation rates.
6. Weekly compensation rate: As to the primary injury - $\ 270.00 per week;

As to the second wage loss claim - $\ 374.77.

1. Method wages computation: See Award.

1. Amount of compensation payable:

On the Claim for Contribution -

Ozark Baseball Club/Traveler's Commercial Casualty Co., shall pay contribution to Christian County Sheriff's Department/Missouri Association of Counties the sum of $\ 56,435.10, as its proportionate share ( 14.8 percent).

TOTAL FOR CONTRIBUTION: $\mathbf{\$ 5 6 , 4 3 3 5 . 1 0 .}$

1. Second Injury Fund liability

For enhanced permanent partial disability

the sum of $\ 12,960.00, using a 15 percent load.

For wages lost in a second job, as provided in § 287.220.9 RSMo, the sum of $\ 16,811.06

TOTAL FROM THE FUND: $\mathbf{\$ 2 9 , 7 7 1 . 0 6 .}$

1. Future requirements awarded: None.

The Award against the Second Injury Fund is subject to a lien in the amount of 25 percent in favor of Mark McGuire's attorney, Robin Bullock, as a reasonable fee for necessary legal services rendered.

Employee: Mark McGuire

Injury No. 03-082360

Dependents: N/A

Employer: Christian County Sheriff's Department (settled) \& Ozark Baseball Club

Insurer: Missouri Association of Counties (settled) Traveler's Commercial Casualty Company

Medical Fee Dispute: Cox Health Systems (settled)

Hearing Date: December 22, 2011

Checked by: VRM/db

This case initially was tried on November 17, 2006, on a request for a hardship hearing. Attorney Robin L. Bullock represented Mark McGuire (McGuire), who had filed a claim solely against the Christian County Sheriff's Department (CCSD) and its insurer, Missouri Association of Counties (MAC). The Administrative Law Judge issued a Temporary/Partial Award directing CCSD and MAC to provide certain medical care to McGuire. The transcript and exhibits from that hearing are a part of the record in this proceeding.

On March 16, 2009, CCSD and MAC filed a motion to join Ozark Baseball Club as a primary employer, citing § 287.040.3, RSMo Cum Supp. 2005 (relating to contractors and subcontractors). Section 287.040.4 RSMo 2000, and § 287.0404.3 RSMo Cum Supp. 2005, are identical sections which specifically allow for the joinder of a potential employer for purposes of reimbursement. The motion to join the Ozark Baseball Club was sustained, but its liability for reimbursement was stayed pending further proceedings.

Subsequently, McGuire settled his claim for compensation with CCSD and MAC. The settlement was conducted on the record. Ozark Baseball Club and its insurer were provided with notice by certified mail. These entities appeared by legal counsel, but refused to participate in or acquiesce to the settlement. Thus, the issues of whether Ozark Baseball Club was an employer of McGuire, and whether it and its insurer had any liability, remained open.

The instant proceeding involves two aspects:

First, McGuire has claims against the Second Injury Fund, both for enhanced permanent partial disability and for wages he lost as a result of a second employment; Second, CCSD and MAC seek

reimbursement or contribution from Ozark Baseball Club, and its Insurer, as a joint employer. ${ }^{1}$ The parties have identified the following issues:

1. Did the Administrative Law Judge have authority to make Ozark Baseball Club LLC a party?
2. Are CCSD and MAC entitled to contribution from Ozark Baseball Club LLC and Travelers?

a. Was McGuire an employee of Ozark Baseball Club?

b. Was the Missouri Workers' Compensation Law applicable at the time of the accident?

c. Was notice provided as required by law?

d. Was the claim filed within the applicable statute of limitations?

e. Did the accident arise out of McGuire's employment?

f. Did the accident occur within the course of McGuire's employment?

g. What is the extent of disability and amount of contribution, if any?

1. Does the Second Injury Fund have liability for enhanced permanent partial disability?
2. Does the Second Injury Fund have liability for wages lost from a second job?

a. What is the average weekly wage from the second job and the wage rate?

b. How long was the employee temporarily and totally disabled from the second job?

The following exhibits, offered on behalf of the CCSD and MAC, were admitted:

CCSD 1 Application of Christian County to join Ozark Baseball Club as a party

CCSD 2 Ruling on the Application

CCSD 3 Transcript of the proceedings on June 5, 2009

CCSD 4 Stipulation for Compromise Settlement approved June 5, 2009

The following exhibits, offered by Mark McGuire, were admitted:

Claimant A Stipulation for Compromise Settlement approved June 5, 2009

Claimant B Medical Records - Ted A. Lennard, M.D.

Claimant C Medical Records - Robert E. Hufft, M.D.

Claimant D Medical Records - SNSI

Claimant E Deposition - Shane Bennoch, M.D.

The Administrative Law Judge takes administrative or official notice of the records of the Division of Workers' Compensation. A Legal File has been created, which includes the following:

1. Application pursuant to $\S 287.040 .3$ to join Ozark Baseball Club, L.L.C., as a party to the proceedings, with the Order granting motion to join, and staying the remainder of the motion, pending further proceedings. The following exhibits were appended to the Application:

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[^0]: ${ }^{1} While joinder of Ozark Baseball Club originally was sought under \S 287.040 RSMo, CCSD now seeks reimbursement from Ozark Baseball Club pursuant to \S 287.130$ RSMo, which provides for the joint and several liability and contribution among joint employers. All statutory references are to Missouri Revised Statutes 2000, unless stated otherwise.

1 - A. Claim for Compensation

1 - B. Articles of Organization for Ozark Baseball Club, L.L.C.

1 - C. Certificate of Organization for Ozark Baseball Club as a Limited Liability Company.

1 - D. Notice of the Division of Workers' Compensation regarding Proof of Coverage.

1 - E. Temporary/Partial Award issued January 18, 2007.

Mark McGuire (McGuire) was a 46-year-old former deputy sheriff who was working as a deputy sheriff for the Christian County Sheriff's Department in the civil division on August 9, 2003. He normally worked Monday through Thursday, 10 hours per day. August 9, 2003, was a Friday. McGuire already had put in his 40 hours of work for CCSD. If he incurred any additional duties that week, he would be paid with "comp time." Comp time could be taken at a later time.

McGuire had taken on a second job as a security officer for the Ozark Baseball Club, LLC. Ozark Baseball Club operated a baseball team known as the Ozark Ducks. The Ozark Baseball Club wanted security officers during its games that possessed powers of arrest. McGuire found out about the job after a sign-up sheet was posted at the Christian County Sheriff's Department (CCSD). CCSD authorized its officers to work these extra duties, but there is no evidence that deputies were expected to perform these duties. Although CCSD concedes that McGuire was acting within the course and scope of his employment for CCSD at the time of his injury on August 9, 2003, it contends that McGuire was jointly employed with Ozark Baseball Club. CCSD and its insurer argue that the baseball club has joint and several liability under § 287.130 RSMo.

On that Friday evening of August 9, 2003, while working as a security officer at the Ozark Baseball Club facility in Ozark, Missouri, McGuire encountered an inebriated couple who were intent on driving. McGuire secured a taxi cab for the couple; however, when the cab arrived, the couple got into their own vehicle car and attempted to leave. McGuire anticipated the commission of a crime. McGuire notified CCSD that he needed back-up deputies. The drunk driver started the vehicle. As McGuire attempted to stop the vehicle from leaving through the only exit to the baseball facility, the driver struck McGuire with the motor vehicle. The impact flipped McGuire over the hood, into the windshield, and then onto the ground. As a result, McGuire sustained severe injuries to his back and knee. In addition to a torn medial meniscus, McGuire ruptured disks at three levels of the spine. He has suffered recurrent herniations, prompting two discectomies, an artificial disc replacement, and eventually a back fusion. The knee injury was serious, but was not surgically treated. As a result of the injuries sustained that date, McGuire never again can return to his work as a deputy sheriff. He was forced to leave his employment as a law enforcement officer. He has continued to operate a floor covering business that he had operated for several years, but not in the same capacity as before.

The Ozark Baseball Club contends that the Administrative Law Judge erred in granting the motion to join them as a party. As noted at the outset of this Award, CCSD and MAC filed a motion on March 6, 2009, to join Ozark Baseball Club as a primary employer, citing § 287.040.3 RSMo, (relating to contractors and subcontractors). CCSD and MAC also sought reimbursement from Ozark Baseball Club. On April 10, 2009, Ozark Baseball Club was made a party when the Administrative Law Judge

granted CCSD and MAC's motion for joinder, but the issue of reimbursement was stayed pending further proceedings.

Subsequently, CCSD and it insurer reached a stipulation for compromise settlement with McGuire. On June 5, 2009, the Division conducted a hearing on the record with respect to the settlement (Settle. Hr. Tr. - CCSD Ex. 3). The Division of Workers' Compensation provided certified notice to Ozark Baseball Club six weeks in advance of that hearing. The certified notice was dated April 23, 2009 (Settle. Hrg. Tr. - CCSD Ex. 3, p. 34). Ozark Baseball Club, and its insurer Travelers Commercial Casualty Company, appeared by legal counsel. The settlement was approved on June 5, 2009, as between CCSD, its insurer, and McGuire. Ozark Baseball Club and its insurer refused to acquiesce in the settlement and objected to the joinder of Ozark Baseball Club.

Given the objection, the Administrative Law Judge asked, "if I would reconsider the motion [to join Ozark Baseball Club as a party], do you have a basis to preclude the Ozark Baseball Club from being made a party?" (Settle. Hrg. Tr. - CCSD Ex. 3, p. 33). Counsel at that time failed to articulate a specific reason and requested time for research. The Administrative Law Judge then commented that the Ozark Baseball Club had been given certified notice well in advance of the hearing. In light of the lack of any specific reason not to join the Ozark Baseball Club, the Administrative Law Judge ruled: "So, therefore, I am not going to reconsider....You will remain a party in this case until such time that you are determined not to be an employer. So you are in." (Settle. Hrg. Tr. - CCSD Ex. 3, p. 34).

Ozark Baseball Club had hired security guards in the past. It retained the authority to hire and fire McGuire. Ozark Baseball Club directed McGuire in his job duties, explaining that the Club did not want patrons harassed, but they did want a security officer who had arrest authority, if needed. McGuire was required to "clock-in" when he appeared for work, which he did on August 9, 2003. All of his duties were performed at the Ozark Baseball Club facility. There is no evidence as to whether McGuire could subcontract with a different deputy sheriff or anyone else to perform his job duties for the Ozark Baseball Club. He received cash payments for his efforts. He was unsure of the amount of his pay, or whether he was paid by the hour or by a lump sum. He followed rules set by the Ozark Baseball Club, and performed the duties they assigned.

On the night of August 9, 2003, when McGuire encountered an intoxicated couple on the Ozark Baseball Clubs' property, it was about 10:30 p.m. McGuire intervened as he was expected to do by Ozark Baseball Club. When McGuire notified the CCSD and requested backup, he radioed a code 1041 (on duty) at that time. He had been on code 10-6 (special assignment). McGuire did not know when the "10-6" would have ended. He said as a private citizen he would not have been able to exercise his power of arrest. When McGuire made the arrest, he was on the clock with Ozark Baseball Club. He said he would not have been paid by CCSD, but probably was provided "comp time" for the work he performed in relation to the arrest. McGuire was performing duties for both Ozark Baseball Club and the CCSD.

There is no evidence of a contract between CCSD and the Ozark Baseball Club. There clearly was evidence of a contract of hire between Ozark Baseball Club and McGuire. I find that Ozark Baseball Club was not a subcontractor of CCSD. I find no evidence that McGuire was an independent contractor. All of the evidence suggests that McGuire was an employee of both Ozark Baseball Club and CCSD at the time of his work injury. There is no evidence the Ozark Baseball Club was exempt

from the Missouri Workers' Compensation Law on August 9, 2003. The overwhelming evidence in the record supports my finding that McGuire's accident arose out of and was within the course of his employments with both CCSD and Ozark Baseball Club.

The accident occurred at the only exit to the Ozark Baseball Club property on a game night. Because of McGuire's call for backup, there were emergency vehicles arriving on the scene. McGuire was taken to the hospital as a result of the accident. With all of the commotion occurring on its own property, it is inconceivable that Ozark Baseball Club would not have had actual notice of the accident and injury. I find that CCSD and Ozark Baseball Club had notice of the work related accident and injury.

After the injury on August 9, 2003, CCSD and its insurer provided substantial authorized medical treatment for a period of several years. The Claim for Compensation was file-stamped by the Division of Workers' Compensation on November 3, 2005. The Claim for Compensation was filed timely as to CCSD. McGuire never filed an amended claim naming Ozark Baseball Club as a party to his claim. Ozark Baseball Club was named a party to the proceeding by Order dated April 10, 2009. I find that the original claim was filed timely. For reasons explained in the Conclusions of Law, I find that request for contribution is timely and not outside the statute of limitations.

McGuire was engaged in a floor covering business, in addition to his duties as a sheriff's deputy and security guard for Ozark Baseball Club. He had a number of people working for him, but he also was a working supervisor, active in the business. While he performed some estimating duties, he also performed much of the physical work himself.

When McGuire became temporarily totally disabled as a result of the August 9, 2003 injury, not only could he not perform his duties as a deputy sheriff, he also could not work in the flooring business. The Second Injury Fund did not dispute that McGuire's workers' compensation rate for the work related injury was $\ 270 per week. McGuire testified credibly that he made substantially more than that while working for McGuire's Flooring. McGuire's average weekly wage from flooring employment was $\ 562.15, making the temporary total disability rate $\ 374.77 for that employment. The maximum temporary total disability rate on the date of the work accident on August 9, 2003, was $\ 662.55.

As reflected in the Stipulation for Compromise Settlement (Exhibit A), McGuire had been temporarily totally disabled for 36 and $4 / 7$ weeks. During this time period, McGuire could not work his second job with McGuire's Flooring. Medical records (Exhibits B \& D) reveal that Dr. Ted Lennard saw McGuire on June 25, 2005, when he reported that he had some problems since a functional capacity evaluation on June 9, 2005. It was suspected that McGuire had a recurrent disc herniation, which was confirmed by Dr. Ceola's evaluation on June 22, 2005. McGuire underwent an additional surgery on July 8, 2005, to address a large disc herniation adjacent to the nerve root L5-S1. Dr. Lennard's medical records indicate that on September 27, 2005, Dr. Lennard imposed a 10-pound lifting restriction. Weight restrictions continued through April 2006, at which time Dr. Ceola began discussing additional surgical options with McGuire, including the disc replacement.

Even though McGuire was paid 36 and $4 / 7$ weeks of temporary total disability, per his credible testimony, he only received three weeks of temporary total disability between the second back surgery and the disc replacement surgery. McGuire was temporarily and totally disabled from the date of surgery on July 8, 2005 through September 27, 2005, when he was released by the physician. The medical records support McGuire's contention that he was completely unable to work during this time period. I find that in addition to the 36 and $4 / 7 weeks paid by CCSD and its insurer, McGuire had an additional 8 and 2 / 7$ weeks of temporary total disability for which he was not compensated. While McGuire settled his claim against CCSD, such settlement does not reflect the total amount of time McGuire was unable to work his second job at McGuire Flooring due to the work accident at the Ozark Baseball Club's facility. I find that McGuire was temporarily and totally disabled as to his second job for a period of 44 and $6 / 7$ weeks.

Dr. Shane Bennoch examined McGuire on February 19, 2008, reviewed relevant medical records, and issued a report. Dr. Bennoch opined that as a result of the work injury on August 9, 2003, McGuire suffered a 50 percent permanent partial disability to the body as a whole referable to the lumbar spine. The rating took into account the patient's multiple surgeries and diagnosis of a failed back syndrome. Dr. Bennoch also rated Claimant's right knee injury from the primary work accident at 25 percent due to traumatic injury resulting in a medial meniscal tear. Claimant has continued pain and intermittent locking in the knee.

Prior to the last injury on August 9, 2003, McGuire had suffered multiple knee injuries. In 1976, he injured his right knee and underwent a medial arthrotomy by Dr. Wakemen. He sustained an injury to his left knee in December 1989, necessitating an arthroscopic surgery. He had a repeat arthroscopy surgery in 2001 by Dr. Hufft. Exhibit C are the records relating to this last surgery in 2001 to the right knee. Dr. Hufft provided a rating of 20 percent for the preexisting right knee disability.

Dr. Bennoch testified that Claimant has a 25 percent permanent partial disability to the left lower extremity rated at the left knee due to a medial meniscus tear resulting in an arthroscopy. He also suffered a preexisting disability of 25 percent to the right lower extremity rated at the right knee due to traumatic injury resulting in surgeries.

Dr. Shane Bennoch testified credibly by deposition that the preexisting knee injuries, including the surgeries, posed hindrances or obstacles to employment. Dr. Bennoch testified that the disruption of the normal anatomy in the knee increased the risk for reinjury, and there were certain jobs in which he would be more vulnerable to injury than a person without the disruption to the knee.

Claimant testified credibly that while he was able to work full time prior to the accident on August 9, 2003, he was limited in what work he performed. He admitted that he had been a physically fit individual, engaging in water skiing and martial arts. Still, he tried to work in areas that kept him off his feet much of the day. He indicated that he had to change the manner in which he performed work activities. Claimant presented himself as a very proud individual who did not like to see himself as disabled. He did what he could to maintain an active lifestyle. His testimony as to how his knee injuries affected his duties as a sheriff's deputy is not refuted. I find that the prior knee surgeries did pose a hindrance or obstacle to employment or reemployment.

I find Dr. Bennoch's ratings of the primary injury, which are also reflected in the stipulation for compromise settlement, are an accurate reflection of the degree of disability resulting from the work injury on August 9, 2003. I accept as credible Dr. Bennoch's ratings as to the preexisting disabilities. I agree with Dr. Bennoch that the preexisting permanent partial disabilities synergistically combine with the disabilities from the last accident, and a loading factor is appropriate for purposes of Second Injury Fund liability.

Ozark Baseball Club argues that a party can be joined under § 287.040.3, RSMo 2000, only if 1) a contractual relationship existed between the movant and the party to be joined, and 2) Ozark Baseball Club is both a subcontractor of CCSD and the immediate employer of the injured employee. Because CCSD provided no evidence of a contractual relationship between the two entities, Ozark Baseball Club contends that joinder under § 287.040 RSMo, was improper. Moreover, because McGuire never named Ozark Baseball Club as a party, and the statute of limitations under § 287.430, RSMo, has run, McGuire is barred from ever doing so. Ozark Baseball Club alleges that "the only reason that Ozark Baseball Club is now a party to this claim is that it was joined on application of § 287.040.3." (Ozark Baseball Club' brief p. 13). Ozark Baseball Club further alleges that it was prejudiced because it never had the opportunity to defend on a whole host of issues, such as reasonableness and necessity of medical treatment.

Section 287.040.3, RSMo Cum Supp. 2005 (previously § 287.040.4, RSMo 2000), provides in applicable part, as follows:

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 e 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 employer was insured by his immediate or any intermediate employer [emphasis added].

If CCSD believed Ozark Baseball Club was primarily liable as the immediate employer at the time of the accident, it was appropriate to make the Ozark Baseball Club a party. Based on the allegations in the original motion, it was appropriate to join the Ozark Baseball Club as a party to the proceedings. While the evidence eventually failed to prove a contractual relationship between Ozark Baseball Club and CCSD, does not mean the initial joinder was improper. Subsequent to its joinder, however, other reasons were raised to keep Ozark Baseball Club in the case.

As the case has developed, CCSD and MAC actually had a different reason for joining the Ozark Baseball Club. Counsel for CCSD and MAC have conceded that the wrong statute may have been cited in the original motion seeking to join Ozark Baseball Club. As made evident at the final hearing, and as clearly demonstrated in its post-hearing brief, CCSD and MAC seek money from Ozark

Baseball Club as a "joint employer" rather than as a subcontractor. Such action is authorized in the Workers' Compensation Law:

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.

§ 287.130, RSMo. CCSD and its insurer have a statutory right to proceed against Ozark Baseball Club as a joint employer, even if the employee never named Ozark Baseball Club as a party in its Claim for Compensation.

Even if it may be said that the Administrative Law Judge erred in initially joining Ozark Baseball Club as a party under $\S 287.140$ RSMo, it was not improper to join that entity for purposes of contribution under $\S 287.130$ RSMo. A bench-tried ruling that reaches the correct result will not be set aside even if the court gives a wrong or insufficient reason. Tate v. Director of Revenue, 982 S.W.2d 724, 727 (Mo. App. E.D. 1998). I conclude that it was proper to join Ozark Baseball Club either for reimbursement or contribution. Even if the wrong statutory provision initially was cited, the proceeding against the alleged joint employer is authorized by statute.

Ozark Baseball Club argues that as a matter of fairness it should not be made a party and held liable for any benefits paid to McGuire because it had no opportunity to investigate the claim or direct medical care. First, as noted above, the statute allows for contribution among joint employers, without any requirement that Ozark Baseball Club be made a defendant in the Claim for Compensation filed by the employee. Moreover, the whole purpose of contribution "finds its basis in general principles of equity and of natural justice rather than contract. It is to be applied where one is compelled to pay more than his share of a common obligation which several persons are obligated to discharge." Hartford Accident and Indeminity Co. v. The Travelers Insurance Co., 525 S.W.2d 612, 615 (Mo. App. K.C.D. 1975). It is not only fair for CCSD to seek contribution against Ozark Baseball Club 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 McGuire if Ozark Baseball Club was a joint employer.

Second, after Ozark Baseball Club was joined, and at the time of the settlement, all of the parties represented "on the record" that they would fully cooperate with Ozark Baseball Club in any discovery it needed. A period of 18 months passed between the settlement on the record and the final hearing. Ozark Baseball Club cannot now state that it was not afforded time for discovery so as to mitigate its liability for benefits it believes were improperly paid. In fact, Ozark Baseball Club has never identified any bills or medical treatment it believed were unreasonable or unnecessary.

Third, Ozark Baseball Club has chosen to defend solely on the application of $\S 287.430 RSMo. It has never presented any argument countering the applicability of \S 287.130$ RSMo. I conclude that CCSD and its insurer are entitled to bring this cause against Ozark Baseball Club for contribution under $\S 287.130$ RSMo. It is incumbent upon CCSD and its insurer, however, to prove that McGuire was in the joint employment of Ozark Baseball Club at the time of the injury, and that the injury arose out of and within the course of that employment, as well as its own.

Whether a Workers' Compensation claimant is an employee is a question of law, not a finding of fact. DiMaggio v. Johnston Audio/D \& M Sound, 19 S.W.3d 185, 188 (Mo. App. W.D. 2000), overruled on other grounds by Hampton v. Big Boy Steel Erection, 121 S.W.3d 220 (Mo. banc 2003). Section 287.020.1 RSMo, defines an employee as "every person in service of any employer...under any contract of hire, expressed or implied, oral or written, or under any appointment or election, including executive offers of corporations." The pivotal question in determining the existence of an employeremployee relationship is whether the employer had the right to control the means and manner of the service, as distinguished from controlling the end result. DiMggio, 19 S.W.3d at 188. By contrast, an independent contractor agrees to complete a piece of work using his own methods, without being subject to the control of an employer, except as to the final result of his work. Cole v. Town \& Country Exteriors, 837 S.W.2d 580, 584 (Mo.App. E.D.1992), overruled on other grounds by Hampton v. Big Boy Steel Erection, 121 S.W.3d 220 (Mo. banc 2003). Whether a claimant is an employee or an independent contractor is determined on a case-by-case basis. Wilmot v. Bulman, 908 S.W.2d 139, 142 (Mo.App. S.D.1995), overruled on other grounds by Hampton v. Big Boy Steel Erection, 121 S.W.3d 220 (Mo. banc 2003).

McGuire was an employee of Ozark Baseball Club at the time of his work injury. Ozark Baseball Club controlled essential aspects of his work. It directed McGuire to not use a heavy hand, but to exercise his arrest power, if needed. It required McGuire to "clock-in." It retained the right to hire and fire. Nothing in the record suggests that Ozark Baseball Club was not an employer within the meaning of the Workers' Compensation Law. There is no allegation by Ozark Baseball Club that it fell within a class of excluded employers, or that it did not have the requisite number of employees.

Joint employment occurs when an employee, under contract with two or more employers and under their simultaneous control, performs for each employer services that are the same or closely related. Leach v. Board of Police Commissioners of Kansas City, 118 S.W.3d 636 (Mo. App. W.D. 2003). In Leach, an off-duty police officer was held to be the joint employee of a private security company and the board of police commissioners when he was killed while working as a security guard, for purposes of determining entitlement to workers' compensation. The Court of Appeals said the "key factor" is not whether the work was merely doing something that benefited both entities, but rather was the employee "was doing both employers' work." 118 S.W.3d at 650. The Court further said that it did not matter that the police officer was "off-duty" in the loose sense of the term. "An off-duty officer who is injured or killed while performing the duties of a police officer may still be protected by workers' compensation." 118 S.W. 3d at 651.

As in Leach, McGuire was doing the work of both employers when he suffered his injuries. He was providing actual sheriff service to the CCSD when he attempted to stop a drunk driver from operating a vehicle and effectuate an arrest. He notified CCSD at the time he encountered the situation necessitating his action to stop the drunk driver. He called for back-up deputies to assist him. Clearly, McGuire was within the course and scope of his employment as a deputy when the accident occurred. He also was keeping order and security at the Ozark Baseball Club, as he was hired by that employer to do. He had clocked-in for his security duties and had not yet clocked-out. His injuries were sustained within the course and scope of employment for both employers simultaneously.

Ozark Baseball Club challenges not only whether Claimant was their employee at the time of the accident, but whether they were subject to the Workers' Compensation Law at the time of McGuire's injury. McGuire testified credibly that he was hired to provide security for the Ozark Baseball Club. Maintaining security would appear to be an integral part of Ozark Baseball Club's business. The facts do not support an independent contractor relationship. There is no exception cited by the parties that would take McGuire's injuries outside of administrative arena of the Workers' Compensation law. While CCSD and MAC may have been able to proceed in circuit court on a claim for contribution, I find nothing in the Workers' Compensation Law that precludes this proceeding before an Administrative Law Judge.

Ozark Baseball Club had actual notice of the events the night of the injury. Under the law in effect in 2003, an employer having actual notice will excuse an employee's failure to make timely, written notice. Hall v. G.W. Fiberglass, Inc., 873 S.W.2d 297, 298 (Mo.App.1994). As to notice of this proceeding, the Division's files indicate that Ozark Baseball Club was provided timely notice of the hearing, and that entity and its insurer appeared by legal counsel at the hearing. Notice was appropriate.

Ozark Baseball Club contends that the statute of limitations bars an action against it. The claim against Ozark Baseball Club, however, is not one by the employee against an employer. It is a claim for contribution among alleged employers. The statute of limitations set forth in § 287.430 RSMo, relating to the claim for compensation by an employee against an employer is inapplicable to the proceeding between CCSD and Ozark Baseball Club.

There is no requirement under $\S 287.130$ RSMo, that the employee name all joint employers in his claim for compensation for one employer to obtain contribution from another joint employer. See Schultz v. Moerschel Products Co., 142 S.W.2d 106 (Mo. App. W.D. 1940) (holding that the claimant had the exclusive right to elect whom he will seek to hold liable, and employers have the right to seek contribution from each other); see also, Martin v. Mid-America Farm Lines, Inc., 769 S.W.2d 105 (Mo. banc 1989). This right of election is not limited by whether or not the workers' compensation liability of one of the employers is insured or self-insured. Leach v. Board of Police Com'rs, 118 S.W.3d 646 (Mo. App. W.D. 2003).

As in a civil suit in circuit court for contribution, any applicable statute of limitations would not begin to run until after the settlement between the injured employee and CCSD, because that is when the right to contribution is clearly stated. Greenstreet v. Rupert, 795 S.W.2d 539, 541 (Mo. App. W.D. 1990). Here, the Ozark Baseball Club was brought into these proceedings prior to the settlement between McGuire and CCSD and MAC. Ozark Baseball Club was represented at the time of the settlement hearing. At the time of the settlement hearing, the Administrative Law Judge revisited the motion to join Ozark Baseball Club in the proceedings for purposes of obtaining reimbursement or contribution. It cannot be said that any statute of limitations had run against Ozark Baseball Club.

As set forth in the Stipulation for Compromise settlement, MAC paid on behalf of CCSD \146,482.13 in medical expenses, \ 9,836.14 in temporary total disability representing 36 and $4 / 7 weeks of compensation at \ 270 per week, and $\ 225,000 in permanent partial disability, representing 50 percent of the body of the whole, 25 percent of the knee, and $\ 160,200.00 in future medical expenses. The total amount paid is $\ 381,318.27.

While CCSD and MAC use the term "reimbursement" rights as against Ozark Baseball Club, such term is not synonymous with the right of contribution. While CCSD might have been entitled to "reimbursement" had it shown that Ozark Baseball Club was the immediate employer under contract with CCSD, that it is not this case. Rather, CCSD is a joint employer with Ozark Baseball Club and its right to contribution, based solely on the $\S 287.130$ RSMo, entitles it to contribution in proportionate payments.

In Equity Mutual Ins. Co. v. Kroger Grocery \& Baking Co., 175 S.W.2d 153 (Mo. App. W.D. 1943), joint employers disputed the amount of money each owed for workers' compensation benefits. The Missouri Court of Appeals held that the statutory right of one employer to seek contribution from the other joint employer was limited to the amount of the award, finding no provision for the recovery of the expense of investigation and legal services. In that case, because each of the seven employers had agreed to pay the employee one-seventh of the employee's salary, each was liable for one-seventh of the workers' compensation award.

In the instant case, CCSD's right to contribution is limited to the amounts set forth in the settlement. That amount is $\ 381,318.27. But because the parties did not pay McGuire in equal amounts, the liability for the benefits paid may not be equally split among them. Rather, CCSD and Ozark Baseball Club "shall have contribution from each other in proportion of their several liability for the wages of such employee...."§ 287.130 RSMo [emphasis added].

CCSD and MAC argue that on the date of his injury, McGuire was not receiving any pay from CCSD, but only received "comp time." They argue that the only true wages McGuire received that day was paid by Ozark Baseball Club. Hence, CCSD and MAC argue that Ozark Baseball Club is liable for the full amount of the benefits paid. Of course, Ozark Baseball Club argues that it owes nothing. Ozark Baseball Club was a joint employer and owes contribution to CCSD, but it does not bear the entire burden. CCSD cannot logically argue that it paid McGuire nothing at the time of the injury. It is clear it paid McGuire a salary based on 40 hours a week, and compensatory time thereafter. Moreover, the stipulation recites a temporary total disability and permanent partial disability rate of $\ 270.00.

Ozark Baseball Club paid Claimant either an hourly wage or a flat rate, but the evidence fails to provide the specifics. Given the lack of evidence on which to calculate any wage rate paid by the Ozark Baseball Club, I conclude that Claimant's compensation rate from Ozark Baseball Club would be the minimum $\ 40.00 as set forth in $\S 287.190 .5(1)$ RSMo. See Sullivan v. Masters Jackson Paving Co., 35 S.W.3d 879, 887 (Mo. App. S.D. 2001), overruled on other grounds by Hampton v. Big Boy Steel Erection, 121 S.W.3d 220 (Mo. 2003) (holding that it was appropriate to use the minimum statutory compensation rate when any attempt to determine the salary requires speculation).

Therefore, Ozark Baseball Club's proportionate liability is 14.8 percent ( $\ 40 divided by the total stipulated compensation rate of $\$ 270=14.8 ) of the \ 381,318.27 in benefits paid pursuant to the

settlement. This is $\ 56,435.10. This is the amount Ozark Baseball Club, as a joint employer, and its insurer, Travelers' Commercial Casualty Company, must contribute to CCSD and MAC.

To recover against the Second Injury Fund for enhanced permanent partial disability, Claimant must prove he sustained a compensable injury, referred to as "the last injury," which resulted in permanent partial disability. § 287.220.1 RSMo. Claimant also must prove that he had a preexisting permanent partial disability, whether from a compensable injury or otherwise, that: (1) existed at the time the last injury was sustained; (2) was of such seriousness as to constitute a hindrance or obstacle to his employment or reemployment should he become unemployed; and (3) include a minimum of 50 weeks of compensation for injuries to the body as a whole or 15 percent from major extremities. Dunn v. Treasurer of Missouri, as Custodian of the Second Injury Fund, 272 S.W.3d 267, 272 (Mo. App. 2008). To recover permanent partial disability benefits from the Second Injury Fund, the last injury, when combined with Claimant's preexisting permanent partial disabilities, must cause a greater overall disability than the independent sum of the disabilities. Elrod v. Treasurer of Missouri, as Custodian of the Second Injury Fund, 138 S.W.3d 714, 717-18 (Mo. banc 2004). Claimant has met the burden imposed by law.

McGuire suffered a 25 percent preexisting permanent partial disability to each knee, for a total of 80 weeks. These were a hindrance or obstacle to employer or reemployment. His 50 percent disability to the body as a whole, and 25 percent permanent partial disability to the right knee, from the primary injury on August 9, 2003, equals 240 weeks. The simple sum of all of the disabilities is 320 weeks. Given the severity of the back injury and the bilateral nature of the preexisting disabilities, I find and conclude that a 15 percent loading factor is appropriate. Therefore, the Second Injury Fund is liable for enhanced permanent partial disability in the amount of 48 weeks. Multiplied by the permanent partial disability of $\ 270.00, the Second Injury Fund shall pay $\ 12,960.00, pursuant to $\S 287.220 .1$ RSMo.

Section 287.220.9, RSMo 2000, provides that an employee who is employed by more than one employer at the time of a work injury, is entitled to file a claim against for additional wage loss benefits attributed to the loss of earnings from the employment where the injury did not occur. The statute reads, in applicable part, as follows:

Any employee who at the time a compensable work-related injury is sustained is employed by more than one employer, the employer for whom the employee was working when the injury was sustained shall be responsible for wage loss benefits applicable only to the earnings in that employer's employment and the injured employee shall be entitled to file a claim against the second injury fund for any additional wage loss benefits attributed to loss of earnings from the employment or employers where the injury did not occur, up to the maximum weekly benefit less those benefits paid by the employer in whose employment the employee sustained the injury. The employee shall be entitled to a total benefit based on the total average weekly wage of such employee computed according the subsection 8 of section 287.250 . The employee shall not be entitled to a greater rate of compensation than allowed by law on the date of injury.

$\S 287.220 .9$ RSMo. McGuire has met the requirements of this statute. He is entitled to recover monies against the Second Injury Fund for wages lost from his second job with McGuire Flooring.

Deducting the $\ 270 temporary total disability rate (the weekly rate at which CCSD paid) from the maximum rate of $\ 662.55 leaves $\ 392.55. According to the above-quoted statute, McGuire cannot claim more than $\ 392.55 for temporary total disability from the Second Injury Fund for the second wage loss claim. Using the formula set forth in $\S 287.250 .8$ RSMo, McGuire's wage from the floor covering business would result in a temporary total disability rate of $\ 374.77. Because this is less than the maximum amount available by law, that is the rate at which he can claim benefits from the Second Injury Fund for his second wage loss claim.

McGuire was unable to work in his floor covering employment for a period of 44 and $6 / 7$ weeks, and was temporarily and totally disabled during this time period. As a result, he is entitled to 44 and $6 / 7 weeks of temporary total disability at the compensation rate of \ 374.77. This totals $\ 16,811.06. This Second Injury Fund is liable for this amount for second wage loss benefits.

Ozark Baseball Club and its insurer, Traveler's Insurance Co., shall pay contribution to the Christian County Sheriff's Department and its insurer, Missouri Association of Counties, the sum of \$56,435.10 in contribution.

The Second Injury Fund shall pay to Mark McGuire, the sum of $\ 12,960.00, in enhanced permanent partial disability, as provided in § 287.220.1 RSMo. The Second Injury Fund also shall pay to Mark McGuire, the sum of $\ 16,811.06 for wages lost in a second job, as provided in $\S 287.220 .9 RSMo. The total of the amount owed by the Second Injury Fund is \ 29,771.06.

The $\ 29,768.43 awarded against the Second Injury Fund is subject to a lien in the amount of 25 percent in favor of Mark McGuire's attorney, Robin Bullock, as a reasonable fee for necessary legal services rendered.

Interest shall accrue as provided by law.

Made by: $\qquad$

Victorine R. Mahon

Administrative Law Judge

Division of Workers' Compensation