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 reflect that Duncan was evaluated by Dr. Lingenfelter on July 8, 2015. The July 8, 2015, office notes of Dr. Lingenfelter state as follows:

"This very pleasant gentleman presents here for followup. We have released him. He had a massive rotator cuff tear. He was doing very well and he had good strength at that time. He reports he was doing lot overhead, but he felt he could do it, and manual muscle testing suggested this. He states they then required him to pass some type of test where he was hyperextending and pulling forcefully 35 lbs . He states this is not what his job requires, and after that time, he has had more pain and discomfort. He has noted some weakness. He felt as if something may have happened during the testing.

I strongly feel that we need an MRI to see if he structurally damaged it. He was doing quite well and then we have an intervening incident. I might also add that if this was not in the scope of his employment, I am not sure why they asked him to do this, and because of this, I do think he needs to be under some type of protection, particularly FMLA, and if needed, I will give him some restrictions pending what the MRI shows."

An MRI with contrast was performed on July 16, 2015 at Diagnostic Imaging Centers. The MRI of July 16, 2015 was compared to an MRI taken on October 16, 2014. The July 16, 2015, MRI showed interval postsurgical changes. It was noted that there was evidence of a large full-thickness defect involving the distal anterior, mid and posterior supraspinatus tendon as well as the infraspinatus tendon. Dr. Lingenfelter testified that the July 16, 2015, MRI showed an increase in the size of Duncan's rotator cuff tear when compared to the October 16, 2014, previous MRI which indicated objective evidence of a new injury. The October 16, 2014, MRI revealed a tear measuring $3.8 \times 2.0 \mathrm{~cm}$ in size. The July 16, 2015, MRI showed a larger tear of the rotator cuff measuring $4.1 \mathrm{~cm} \times 3.5 \mathrm{~cm}$ in size.

Duncan was seen in a follow-up with Dr. Lingenfelter on July 29, 2015 following his MRI. Dr. Lingenfelter diagnosed a massive recurrent rotator cuff tear. Dr. Lingenfelter discussed several treatment options including a reverse shoulder arthroplasty.

On August 19, 2015, Dr. Lingenfelter noted that Duncan has a known recurrent rotator cuff tear. He noted that "this happened when he was doing some bizarre work test, which he was not able to complete and at that time he noticed a problem". Duncan told Dr. Lingenfelter that he was not having any pain prior to the PCE and that his right shoulder was doing very well. Dr. Lingenfelter placed Duncan back on temporary restrictions of no overhead work, no lifting over 15 lbs , ok to lift 15 lbs to chest level with both arms, elbows flexed.

Duncan testified that he was ready to return to work on May 11, 2015. He was very happy with the results of his November 2014 rotator cuff repair. He did not have difficulty with overhead lifting with his right shoulder. He had regained full range of motion and was able to reach behind his back with right arm. He testified that as of May 11, 2015, he did not have any limitations with respect to his right shoulder. He was pain free and was not taking any medications for his right shoulder.

Following the May 12, 2015, PCE test, Duncan's right shoulder complaints returned. He described significant pain in his right shoulder. He had very limited range of motion and was unable to lift his right arm above shoulder level. He is unable to do any overhead activity at all with his right arm. He is limited in the amount of weight he can lift with his right arm. He requires the assistance of his family to care for his livestock.

Whether Duncan sustained an "accident" as defined by Section 287.020.2 on May 12, 2015.

Section 287.020.2 states as follows:

1. The word "accident" as used in this chapter shall mean an unexpected traumatic event or unusual strain identifiable by time and place of occurrence and producing at the time objective symptoms of an injury caused by a specific event during a single work shift. An injury is not compensable because work was a triggering or precipitating factor.

In this case, the Employer/Insurer denies that Duncan sustained a compensable accident. Employer/Insurer argue that the PCE device in question was not capable of producing injury, therefore, there was no accident. Duncan testified credibly regarding how his right shoulder felt during the PCE testing. The video offered provided evidence that corroborated Duncan's description of movements. Dr. Lingenfelter thought after viewing the video that Duncan sustained a new injury. Despite Dr. Gilliam's testimony that his PCE testing machines were not capable of producing an injury, I find that Duncan sustained an accident as defined under $\S 287.020 .2$.

It is also the Employer/Insurer's position that Duncan's right shoulder injury that allegedly occurred while performing the May 12, 2015, PCE, did not arise out of and in the course and scope of his employment.

The analysis of whether Duncan's injury arose out of and in the course of the employment must ultimately begin and end with the statutory test set forth at $\S 287.020 .3(2)$ RSMo:

An injury shall be deemed to arise out of and in the course of the employment only if:

(a) It is reasonably apparent, upon consideration of all the circumstances, that the accident is the prevailing factor in causing the injury; and

(b) It does not come from a hazard or risk unrelated to the employment to which workers would have been equally exposed outside of and unrelated to the employment in normal nonemployment life.

Duncan was released to return to work, full duty without restrictions on May 11, 2015. Duncan notified his employer of his release from treatment and that he was ready, willing and able to return to work effective May 11, 2015. The Employer, specifically assistant manager, Donald Burns, advised Duncan that he was required to submit to a PCE prior to returning to work.

The PCE was a mandatory and therefore a condition of Duncan's continued employment. Allied required the PCE as a matter of company policy and paid for the PCE.

The PCE was not requested by the treating orthopedic surgeon, Dr. Lingenfelter. Dr. Lingenfelter released Duncan on May 11, 2015, to return to work without restriction. Dr. Lingenfelter did not feel a Functional Capacity Evaluation was necessary in light of Duncan's progress.

Allied's own policy required Duncan to participate in the PCE. The Employer scheduled the PCE, instructed where to attend and when to be there, and paid for the PCE. Refusal to participate would have been a direct violation of the Employer's written policy and grounds for termination. Therefore, injuries occurring during an activity required by company policy are deemed to have arisen out of and in the course of employment.

The injury sustained by Duncan during the PCE did not come from a hazard or risk unrelated to the employment to which he would have been equally exposed outside of and unrelated to the employment in normal nonemployment life.

The PCE test required Duncan to be strapped into a machine. This is not an activity that Duncan would be equally exposed to outside of his normal, nonemployment life.

Also in dispute is whether the alleged injury that occurred while Duncan was participating in the PCE is the prevailing factor in causing Duncan's recurrent rotator cuff tear and need for treatment.

Section 287.020.3(1) provides that "the term is hereby defined to be an injury which has arisen out of and in the course of employment. An injury by accident is compensable only if the accident was the prevailing factor in causing both the resulting medical condition and

disability. The prevailing factor is defined as the primary factor, in relation to any other factor, causing both the resulting medical condition and disability.

The Employer/Insurer contend that Duncan's August 23, 2014, non-work related injury and resulting massive rotator cuff tear and subsequent degeneration are the prevailing factor.

Dr. Lingenfelter authored a report on October 28, 2015, containing his opinions as to causation in this case. Dr. Lingenfelter acknowledged that Duncan sustained a massive rotator cuff when he fell during the farming incident on August 23, 2014. Dr. Lingenfelter stated that although it was a large tear, he felt that the tear was repairable and elected to proceed with arthroscopic surgery that was performed on November 17, 2014. Dr. Lingenfelter testified that Duncan had a very good clinical outcome following the rotator cuff repair of November 17, 2014. Clinically, he regained good strength above his shoulder and had a good functional outcome. Dr. Lingenfelter testified that:

"Therefore, given that we went from a time period with good clinical outcome to an interval change of pain and weakness after an FCE, I do believe that was the sentinel event and primary prevailing factor which was the required test that his company mandated he perform."

Dr. Lingenfelter had the opportunity to view the PCE test on video and concluded that the test by its very nature could retear a rotator cuff.

Dr. Walker, orthopedic surgeon, testified after reviewing Duncan's medical records and MRI, he believes the retear is due to degenerative processes and failed rotator cuff repair attributable to his non-work related farming injury.

Thomas Gilliam, founder and owner of the PCE testing device and system used by the assistant therapist in this instance, testified that the machine and exams have been used over 330,000 times without a claim of injury. Gilliam said that the movements were not dangerous, capable of producing injury and, after analysis of Duncan's test results, he is certain the test did not produce his injury.

I find Dr. Lingenfelter's opinion to be more persuasive than Dr. Walker's. Dr. Lingenfelter was aware of the condition of Duncan's shoulder prior to the PCE test. Dr. Lingenfelter personally observed the video of the PCE test and concluded it was the cause of Duncan's retear.

I find Duncan has demonstrated that the PCE as performed on May 12, 2015, was the prevailing factor in causing the injury and that the injury did not come from a hazard or risk unrelated to the employment to which workers would have been equally exposed in the normal nonemployment life. Both Dr. Lingenfelter and Dr. Walker concur that Duncan is a candidate for a reverse shoulder arthroplasty. Having found Duncan sustained a compensable accident and injury, I order the Employer/Insurer to provide such medical care as necessary to cure and relieve the effects of his May 12, 2015, injury, including, but not limited to, a reverse shoulder arthroplasty.

Finally, the Employer argues that since temporary total disability benefits were not made a specified issue at the hearing, an award for past temporary total disability benefits cannot be entered. I disagree.

Temporary total disability benefits are intended to cover healing periods and are payable until the employee is able to return to work or until the employee has reached the point where further progress is not expected. The pivotal question in determining whether an employee is totally disabled is whether any employer in the usual course of business would reasonably be expected to employ the claimant in his or her present physical condition. Brookman v. Henry Transportation, 924 S.W. 2d 286 (Mo. App. 1996). The mere fact that the employee might be able to do some light duty cannot be taken as conclusive evidence against his right to temporary total disability benefits. DuPuente v. Chevrolet-St. Louis Division of General Motors, 188 S.W.2d 641 (Mo. App. 1938). The fact that an employee was capable of, but did not seek, sporadic or light duty work, would not in itself disqualify the claimant from receiving temporary total disability benefits. Cooper v. Medical Center of Independence, 955 S.W.2d 578 (Mo. App. 1997).

Duncan's claim for compensation makes demand for temporary total disability benefits. Duncan presented uncontroverted evidence at the hardship hearing that supports his temporary total disability benefits claim. The employer assistant manager offered testimony regarding the availability of light duty as well as Duncan's termination from Allied. Temporary total disability benefits as well as medical care are benefits that Duncan is entitled to after prevailing on the issue of accident and prevailing factors.

Accordingly, I find Duncan entitled to temporary total disability benefits commencing August 19, 2015, the date Dr. Lingenfelter imposed temporary restrictions at the rate of $\ 487.72 per week until such time as Duncan is found at maximum medical improvement or released to return to work.

Made by:

Paula McKeon

Administrative Law Judge

Division of Workers' Compensation

Injury No.: 15-072795

Employee: Ronald Duncan

Employer: Allied Aviation, LLC

Insurer: Zurich American Insurance Company

On August 16, 2016, the administrative law judge issued a temporary or partial award in this matter (Temporary Award). Employer/insurer filed an application for review.

By the Temporary Award, the administrative law judge concluded employee sustained a compensable accident and directed employer/insurer to provide "such medical care as necessary to cure and relieve the effects of his May 12, 2015, injury, including but not limited to, a reverse shoulder arthroplasty." The administrative law judge also ruled employee is "entitled to temporary total disability benefits commencing August 19, 2015, the date Dr. Lingenfelter imposed temporary restrictions at the rate of $\ 487.72 per week until such time as [employee] is found at maximum medical improvement or released to return to work."

By its application, employer/insurer alleges, among other things, "[t]he Administrative Law Judge erred in awarding temporary total disability benefits as the issue was not raised or stipulated at the June 29, 2016, Hardship Hearing ignoring the precedent of Brock [sic] v. Broadway Ford Truck Sales, Inc., 55 S.W.3d 427 (Mo. Ct. App. 2001)."1

We take administrative notice of the records of the Division of Workers' Compensation (Division). We make the following findings.

On September 25, 2015, employee filed his claim for compensation with the Division of Workers' Compensation (Division). In section 21 of the claim entitled "Additional Statements," employee alleged:

Employee is entitled to and makes demand for medical treatment as may reasonably be required to cure and relieve him from the effects of this injury, pursuant to 287.140 RSMo; and Employee is entitled to and makes demand for temporary total disability and/or temporary partial disability benefits, pursuant to Sections 287.160 and 287.170 RSMo. Supp. 1980."

On November 12, 2015, employee filed a Request for Hearing - Hardship or §287.230 Hardship Hearing. Under section 11 stating "Please state all issues to be resolved by hearing" employee's counsel responded:

Hardship Mediation completed on 11-9-2015. I have served a 60-day letter as provided in § 287.210 RSMo. 1993. Purpose of receiving

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[^0]: ${ }^{1}$ Bock v. Broadway Ford Truck Sales, Inc. (Bock I), 55 S.W.3d 427, 2001 Mo. App. LEXIS 1537 (Mo. Ct. App., 2001)

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temporary total disability benefits and medical treatment. Claimant possesses a medical report supporting this request.

At the June 29, 2016, hearing on this claim, the administrative law judge and counsel engaged in the following exchanges:

The Court: And it is my understanding that there is an agreed compensation rate of $\ 487.72 per week; is that correct?

Mr. Benjamin-House: For temporary total disability, yes.

The Court: Mr. Perkins?

Mr. Perkins: Yes.

Tr. 3-4.

The Court: The issues, according to me, are accident and medical causation.

Ms. Benjamin-House: That is correct.

Mr. Perkins: Yes.

The Court: Are there any other issues that you need to discuss this morning?

Mr. Perkins: No.

Tr. 4.

Section 287.149.1 RSMo provides:

Temporary total disability or temporary partial disability benefits shall be paid throughout the rehabilitative process.

Section 287.450 RSMo provides, in relevant part:

If the employer and employee or his dependents do not agree in regard to compensation payable under this chapter, either party may make application in a manner determined by the division for a hearing in regard to the matters at issue and for a ruling thereon, except that no application for a hearing shall be considered until fourteen days after the receipt by the division of the report of accident required under section 287.380.

Section 287.550 RSMo, provides:

All proceedings before the commission or any commissioner shall be simple, informal, and summary, and without regard to the technical rules of evidence, and in accordance with section 287.800 . All such proceedings shall be according to such rules and regulations as may be adopted by the commission.

Division rule 8 CSR 50-2.040(14)

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.

Employer/insurer alleges that the administrative law judge erred by awarding temporary total disability benefits because the parties did not stipulate temporary total disability as an issue to be decided by the administrative law judge. Employer/insurer asserts that in order to be entitled to an award of temporary total disability benefits, "[c]laimant also may have made a specific request at some time during the hardship hearing for an award of past temporary total disability benefits." Employer/insurer cites no legal authority for this proposition and we are aware of none. The Workers' Compensation Law and the Division's regulations do not so require. Section 287.550 RSMo and 8 CSR § 50-2.040(14) demand that proceedings before the Division and this commission be simple and informal. Neither sets forth a requirement that the parties must stipulate at trial to the issues in dispute, although the Divisions' rule requires parties to "stipulate uncontested facts and present evidence only on contested issues."

The record before us overwhelming supports a finding that the issue of temporary total disability was a "contested issue." Employee first put the Division and employer/insurer on notice that employee was seeking medical treatment and temporary disability benefits by so declaring in his claim for compensation. Employee again put the Division and employer/insurer on notice that employee was seeking medical treatment and temporary total disability benefits when employee filed with the Division his Request for Hearing - Hardship or §287.230 Hardship Hearing in accordance § 287.45. Finally, at the hearing the parties stipulated that employee's temporary total disability rate of compensation was $\ 487.72 per week. This stipulation was unnecessary if the parties did not contemplate that the administrative law judge would award temporary total disability benefits should medical treatment be awarded. Employer/insurer knew seven months before the hardship hearing that employee was seeking an award of temporary total disability benefits and that the issue of employer's liability for temporary total disability benefits was a contested issue.

Employer/insurer asserts in its application for review that the decision in Bock v. Broadway Ford Truck Sales, Inc. found at 55 S.W.3d 427 serves as legal precedent on the issue of hearing stipulations. Employer's point is not well founded. This is because

the Bock court later vacated its decision on that point. "Our decision in Bock [I], [55 S.W.3d 427], to the extent it addressed any issue beyond the dismissal of Employer/Insurer's untimely appeal is vacated and set aside."2

We are aware of two other cases suggesting an administrative law judge and this commission have only the authority to determine issues the parties stipulated to try at hearing, but the facts in those cases are distinguishable from the facts of this case. ${ }^{3}$ In both of those cases, the commission awarded permanent disability benefits at a time when the injured worker was seeking only a temporary award. Further, in neither case did employer's obligation to pay the disputed compensation flow by operation of law (and logic) from the administrative law judge's award of an element of compensation the parties agreed to try as it does in the instant case. The administrative law judge's ruling that employer/insurer is obligated to provide the medical treatment requested by employee triggered employer/insurer's obligation to immediately pay temporary disability benefits to employee throughout whatever rehabilitative process is necessary to assist him in recovering from his surgery. Section 287.149.1 does not authorize an employer to wait until an administrative law judge or this commission awards temporary disability benefits before paying temporary disability benefits; it directs that an employer shall pay temporary disability benefits "throughout the rehabilitative process." Applying $\S 287.149 .1$ strictly as we must, we believe that where an administrative law judge or this commission finds an injured worker entitled to medical treatment, the workers' compensation law imposes an immediate obligation on his employer to provide temporary disability benefits subject, of course, to resolution of any disputes regarding the nature and extent of such temporary disability benefits.

Based upon the foregoing, regardless of any failure or confusion at the time of the original hearing, the issue of temporary disability is clearly before this commission at this time. In accordance with the notice and due process requirements discussed in Stonecipher v. Poplar Bluff R1 Sch. Dist., ${ }^{4}$ we notify the parties that in the event we affirm the administrative law judge's award of medical treatment in this matter, we plan to consider and determine employer/insurer's obligation to provide temporary disability benefits during employee's recovery from such treatment. We further notify 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.

We direct 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. In conjunction with their response to this show cause order, we afford the parties 20 days to supplement their briefs as regards our legal authority to consider and award temporary disability in this matter. The supplemental briefs shall not exceed 15 pages.

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[^0]: ${ }^{2}$ Bock v. Broadway Ford Truck Sales, Inc. (Bock II), 169 S.W.3d 143, 149 (Mo. App. E.D. 2005)

${ }^{3}$ See Boyer v. Nat'l Express Co., 49 S.W.3d 700 (Mo. App. 2001); Aldridge v. S. Mo. Gas Co., 131 S.W.3d 876, 885 (Mo. App. 2004).

${ }^{4} 205$ S.W.3d 326 (Mo. App. 2006).

We note that by its original brief, employer/insurer argues employee is not now entitled to temporary disability benefits because employee's injury is not compensable and because neither we nor the administrative law judge have authority to award temporary disability benefits. Employer/insurer does not argue that due to surprise, employer/insurer was unable to properly present all relevant evidence and testimony related to the issue of temporary disability at hearing. More importantly, employer/insurer does not argue that employee is not, in fact, temporarily disabled. If employer/insurer believes there are other legitimate disputes regarding employee's entitlement to temporary disability (e.g., employee is not "unable to return to any employment"5 or employee is not involved in the "rehabilitative process" ${ }^{6}$ ), employer/insurer may address those disputes in its brief.

If no responses are received and if we affirm the administrative law judge's award of medical treatment, we will consider and determine employer/insurer's obligation to pay temporary disability benefits to employee.

Given at Jefferson City, State of Missouri this $12^{\text {th }}$ day of January 2017.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

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[^0]: ${ }^{5}$ See § 287.020.6 RSMo.

${ }^{6}$ See § 287.141.1 RSMo.