Ronald Duncan v. Allied Aviation, LLC

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 15-072795

Employee: Ronald Duncan

Employer: Allied Aviation, LLC

Insurer: Zurich American Insurance Company

This workers' compensation case is pending before us on employer/insurer's application for review of the administrative law judge's temporary or partial award. We have read the briefs, reviewed the evidence, and considered the whole record. We find that the award of the administrative law judge allowing compensation is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to § 286.090 RSMo ${ }^{1}$, we affirm the award and decision of the administrative law judge as supplemented herein.

By its application for review, employer/insurer alleged, in part, "The Administrative Law Judge erred in awarding temporary total disability benefits as the issue was not raised or stipulated to at the June 29, 2016 Hardship Hearing ignoring the precedent of Brock v. Broadway Ford Truck Sales, Inc., 55 S.W.3d 427 (Mo. Ct. App. 2001)."

By order dated January 12, 2017, we ruled that the issue of temporary total disability benefits was properly before us. Notwithstanding our ruling and in accordance with the notice and due process requirements discussed in Stonecipher v. Poplar Bluff R1 Sch. Dist., ${ }^{2}$ we notified the parties that in the event we affirmed the administrative law judge's award of medical treatment in this matter, we planned to consider and determine employer/insurer's obligation to provide temporary disability benefits during employee's recovery from such treatment. We further notified the parties that, in addition to our review as mandated by $\S 287.480 .1$ RSMo, we may, on our own motion, increase, decrease or leave unchanged the temporary disability benefits awarded by the administrative law judge as authorized by $\S 287.470$ RSMo.

Finally, by our January 12, 2017, order we directed interested parties to show cause within 20 days why we should not consider and determine employer/insurer's obligation to pay temporary disability benefits to employee if we affirm the administrative law judge's award of medical care. By its Supplemental Brief, employer/insurer preserved its objection to our January 12 ruling that the matter of temporary total disability is properly before us but acknowledged that if this commission "resolves the issues of 'accident' and prevailing factor/medical causation against [employer/insurer], and thereby affirms the Administrative Law Judge's award of medical compensation, then the Commission has jurisdiction and authority to enter a reasonable and appropriate award of temporary total disability benefits."

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[^0]: ${ }^{1}$ Statutory references are to the Revised Statutes of Missouri 2014 (as effective August 28, 2014), unless otherwise indicated.

${ }^{2} 205$ S.W.3d 326 (Mo. App. 2006).

We reaffirm and incorporate herein the findings and conclusions of our January 12, 2017, order culminating in our legal conclusion that we have authority to consider and determine employer/insurer's obligation to pay temporary total disability benefits to employee.

We affirm and adopt the administrative law judge's August 16, 2016, Temporary Award, as supplemented.

This award is only temporary or partial, is subject to further order, and the proceedings are hereby continued and kept open until a final award can be made. All parties should be aware of the provisions of $\S 287.510$ RSMo.

We attach the August 16, 2016, award and decision of Administrative Law Judge Paula McKeon hereto and incorporate its findings, conclusions, award and decision herein to the extent they are not inconsistent with this award. We also attach hereto and incorporate herein our January 12, 2017, order.

Given at Jefferson City, State of Missouri, this 29th day of March 2017.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

VACANT

Member

Curtis E. Chick, Jr., Member

Attest:

Employee: Ronald Duncan

Injury No. 15-072795

Dependents: N/A

Employer: Allied Aviation, LLC

Insurer: Zurich American Insurance Co.

Hearing Date: June 29, 2016

Checked by: PAM/drl

1. Are any benefits awarded herein? Yes
2. Was the injury or occupational disease compensable under Chapter 287? Yes
3. Was there an accident or incident of occupational disease under the Law? Yes
4. Date of accident or onset of occupational disease: May 12, 2015
5. State location where accident occurred or occupational disease was contracted: Kansas City, Clay County, Missouri
6. Was above Employee in employ of above employer at time of alleged accident or occupational disease? Yes
7. Did employer receive proper notice? Yes
8. Did accident or occupational disease arise out of and in the course of the employment? Yes
9. Was claim for compensation filed within time required by Law? Yes
10. Was employer insured by above insurer? Yes
11. Describe work employee was doing and how accident occurred or occupational disease contracted: Duncan injured his right shoulder while performing a mandatory Physical Capability Evaluation at the request of the employer prior to his return to work from a nonwork related injury.
12. Did accident or occupational disease cause death? No. Date of death? N/A
13. Part(s) of body injured by accident or occupational disease: right shoulder
14. Nature and extent of any permanent disability: N/A

1. Compensation paid to date for temporary disability: None
2. Value necessary medical aid paid to date by employer/insurer? None
3. Value necessary medical aid not furnished by employer/insurer? N/A
4. Employee's average weekly wages: $\ 731.58
5. Weekly compensation rate: $\$ 487.72 / \ 451.02
6. Method wages computation: By agreement

1. Amount of compensation payable: Temporary total disability compensation beginning August 19, 2015, at the rate of $\ 487.72 per week and ongoing.
2. Second Injury Liability: N/A
3. Future requirements awarded: Medical treatment as necessary to cure and relieve Duncan from the injury sustained to his right shoulder on May 12, 2015. See Findings and Rulings.

The compensation awarded shall be subject to a lien in the amount of 25 percent of all payments hereunder in favor of Joshua P. Perkins, Duncan's attorney, for necessary legal services rendered.

Employee: Ronald Duncan

Injury No. 15-072795

Dependents: N/A

Employer: Allied Aviation, LLC

Insurer: Zurich American Insurance Co.

Hearing Date: June 29, 2016

Checked by: PAM / drl

On June 29, 2016, the parties appeared for a temporary hearing. The Employee, Ronald Duncan, appeared in person and with counsel, Joshua P. Perkins. The Employer/Insurer appeared through Samantha Benjamin-House.

The parties stipulated to the following:

1) On May 12, 2015, Ronald Duncan was an employee of Allied Aviation, LLC. and working subject to the Missouri Workers' Compensation Law;

2) Allied Aviation, LLC, was an employer operating under and subject to the provisions of Missouri Workers' Compensation Law, and its liability was fully insured by Zurich American Insurance Co.;

3) A Claim for Compensation was filed within the time prescribed by law;

4) The Employee notified the Employer of his injuries as required by law;

5) Employee's compensation rate is $\$ 487.72 / \ 451.02.

The parties requested the Division to determine the following issues:

1) Whether Duncan sustained an accident arising out of and in the course of his employment on May 12, 2015;

2) Whether the May 12, 2015, incident is the prevailing factor in causing Duncan's current right shoulder condition, and need for medical treatment;

Ronald Duncan is a 58 year old former aircraft refueler for Allied Aviation, an airline refueling company based at Kansas City International Airport. Duncan began his employment with Allied in 2000.

Duncan lives on a farm and raises cattle. In August 2014 Duncan injured his right shoulder while connecting a power shaft to his tractor. Duncan sustained a massive rotator cuff tear which was surgically repaired on November 17, 2014, by Dr. Lingenfelter. Duncan was advised prior to his surgery that due to the massive nature of his injury and degenerative changes that there was a high likelihood for retear and potential for a reverse shoulder replacement in the future. Duncan last saw Dr. Lingenfelter on April 20, 2015. Duncan was instructed to resume normal activities after completion of a strengthening program. Duncan testified he completed the remainder of his strength training program at home. Duncan remained under Dr. Lingenfelter's care and remained off work until May 11, 2015, when Duncan was released to work full duty.

Duncan presented his full duty work release to his supervisor, Donald Burns. Duncan was advised and corporate policy required that he complete a Physical Capability Evaluation (PCE) prior to returning to work. This evaluation was mandatory and scheduled as well as paid for by Allied, Duncan's employer.

A Physical Capability Evaluation is a test created and designed by Industrial Physical Capability Services ("IPCS"). IPCS is a company based in Hudson, Ohio and founded by Thomas B. Gilliam, Ph.D. During the PCE, individuals are advised that they must push and pull as hard and fast as possible throughout the entire motion and each repetition. Upon completion of the PCE, a report is generated and sent to Hudson, Ohio for review by Mr. Gilliam. Mr. Gilliam or a member of his staff scores the test and makes the final determination as to whether an employee is capable of returning to his/her job.

On May 12, 2015, Duncan reported to Select Physical Therapy to participate in the PCE. He was strapped into a machine prior to the test beginning. The individual administering the test advised Duncan that he was required to push and pull as hard and fast as possible throughout the entire motion on every repetition. The individual administering the PCE first tested his right and left knees and legs. The individual then tested his left arm/shoulder.

Duncan's right shoulder and arm was tested last. The machine used to perform the test works when movement is initiated on the speed control lever arm. The machine provides resistance to the effort put forth by the participant. Duncan testified that the machine required him to extend his right arm away from the plane of his body and to an extreme position behind his head. He was required to push as hard as he could to move the lever from behind the back of his head to the side of his waist. He testified that a significant amount of resistance was applied both when lifting his right arm to a position behind his head and on the way down to the position at his waist.

A video of an individual demonstrating how the shoulder portion of the PCE is to be performed was offered as evidence. Duncan was shown the video during the hearing and asked to

identify the position of his right arm when he felt a "pop" or injury as he described. Duncan testified that during the right shoulder testing portion, he experienced a popping sensation in his right shoulder followed by the immediate onset of pain. The position of Duncan's right arm was away from the plane of his body and well behind his head. Duncan then notified the individual administering the test that he needed to stop the test. Duncan was notified shortly after that he had failed the PCE when he received a call from Donald Burns on May 14, 2015. Duncan ultimately received a letter from Donald Burns dated January 25, 2016, advising him that he was terminated from Allied Aviation because he failed the PCE on May 12, 2015.

Duncan did not advise the individual administering the test that he had injured himself during testing. Sometime after the May 12, 2015 PCE test, Duncan contacted Dr. Lingenfelter's office to schedule an appointment to reevaluate his right shoulder. The medical records refl