Shaw v. Scott6/26/2001
Appeal From: Labor and Industrial Relations Commission
Opinion Vote: AFFIRMED.
Ellis and Holliger, JJ., concur.
Factual and Procedural Background
Leslie "Les" Shaw worked for Scotty's Drywall, owned by James Scott ("Scotty"). Besides being his employer and supervisor, Scotty was also Mr. Shaw's friend for over thirty years. Mr. Shaw had worked for Scotty for six years, and, before that, the two had done drywall work for twenty-three years, a job that requires good balance, coordination, and equilibrium. On October 3, 1994, Mr. Shaw was hanging drywall when he felt a sharp pain shoot through his neck and the side of his head. He developed a hemifacial spasm that, over the next few weeks, got progressively worse and more severe. He continued to report to work until Scotty gave him permission to see a doctor. Scotty sent Mr. Shaw to Dr. James Foltz, who referred him to Dr. William LaHue. Mr. Shaw saw Dr. LaHue on December 19, 1994, and he instructed Mr. Shaw to be off work from December 19, 1994, through December 30, 1994, and to take certain medications.
With Scotty's approval at every step, Mr. Shaw was given a series of referrals and was seen by several doctors. After Dr. LaHue, he next went for medical advice, examination, and treatment to Dr. Charles Lea, who referred him to Dr. Keith Byars for special examination and treatment. Dr. Byars referred Mr. Shaw to Dr. V. Kent Cooper, who Mr. Shaw first saw on February 27, 1995. Dr. Cooper did various examinations and treatments with medication, and he referred Mr. Shaw to Dr. Richard Dubinsky, a specialist in neurology at the University of Kansas Medical Center in Kansas City, Kansas. Dr. Dubinsky saw Mr. Shaw for the first time on August 14, 1995. After a full examination and diagnostic procedures, Dr. Dubinsky concluded that Mr. Shaw required surgery for what was diagnosed as a "right hemifacial twitch and spasm".
Dr. Dubinsky explained to Mr. Shaw that he had three treatment options. The first option was oral medications. Over the course of the previous year, Mr. Shaw had been prescribed the anticonvulsant Carbamezipine, Clonazepam, which is a valium family drug, and Baclofen, a drug that affects chemical systems in the brain stem and spinal cord. Each of these drugs had adverse side effects for Mr. Shaw and did not relieve his spasm. The other two choices were botulinum toxin injections or a surgical procedure known as microvascular decompression of the facial nerve. After discussions with his wife, Mr. Shaw opted for surgery. Not knowing any local neurosurgeons qualified to do the procedure in the Kansas City area, Dr. Dubinsky recommended one of the pioneers of the procedure, Dr. Peter Jannetta, in Pittsburgh, Pennsylvania.
Mr. Shaw made a claim for worker's compensation on October 7, 1995. Mr. Shaw requested a hardship hearing pursuant to section 287.203 on or about December 26, 1995. Shortly before the workers' compensation hearing on March 28, 1996, Mr. Shaw submitted to an examination by Dr. Andrew B. Kaufman in Kansas City, Missouri. At the hearing, both sides stipulated that further medical treatment should be done by Dr. Kaufman, who testified by deposition that he was familiar with and capable of performing the surgery. Mrs. Shaw testified that she and Mr. Shaw had been receiving bills from the various doctors her husband had seen, each of which were approved by Scotty, and they were being contacted by collection agencies regarding those doctor bills. The Administrative Law Judge (ALJ) issued a temporary or partial award on June 12, 1996. He awarded Mr. Shaw past medical expenses, temporary total disability (TTD) benefits for the periods of December 19, 1994, t
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