Shaw v. Scott

• Decision Date: 26 June 2001
• Citation: 49 S.W.3d 720
• Parties: (Mo.App. S.D. 2001) Leslie H. Shaw, Sr., Respondent, v. James Scott d/b/a Scotty's Drywall, Appellant. WD58992 0
• Court: Missouri Court of Appeals

49 S.W.3d 720 (Mo.App. S.D. 2001)

Leslie H. Shaw, Sr., Respondent, v. James Scott d/b/a Scotty's Drywall, Appellant.

WD58992

Missouri Court of Appeals Western District

06/26/2001

Appeal From: Labor and Industrial Relations Commission

Counsel for Appellant: James D. Worthington

Counsel for Respondent: Thomas V. Clinkenbeard

Opinion Summary: AFFIRMED.

Division II holds: The Commission did not abuse its discretion in imposing a penalty pursuant to section 287.510 because a willful and intentional act of noncompliance is not required to justify the Commission's action. The statute only requires noncompliance with the temporary award. Further, the statute does not limit the Commission's discretion to only those occasions where noncompliance exists at the moment a final award is issued by an administrative law judge. An award issued by an administrative law judge is not "final" when review by the Commission is sought and, thus, does not release the employer's/insurer's obligation to comply with the temporary award.

Finally, the Commission properly calculated the amount of the penalty for the employer's/insurer's noncompliance because the fact that it belatedly came into compliance with the temporary award does not exempt it from the penalty. The statute does not require complete noncompliance with the temporary award. The Commission correctly calculated the amount of penalty because it doubled the amount of the temporary award that was not complied with in the Commission's final award.

Ellis and Holliger, JJ., concur.

Thomas H. Newton, Judge

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, 1995.¹ Mr. Shaw requested a hardship hearing pursuant to section 287.203² 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, through December 30, 1994, and November 3, 1995, until the time of hearing, future temporary total disability, and future medical care costs and expenses. The ALJ denied Mr. Shaw's claim for attorney fees pursuant to section 287.203; and according to section 287.203, if payments had been made and then unjustifiably terminated, attorney fees may have been considered, but the evidence was clear that neither Scotty nor his insurer, Allied Mutual, (Allied) had at any time made payment for workers' compensation benefits or supplied any medical treatment. Attorney fees were provided on other grounds, however.

Dr. Kaufmann performed microvascular decompression of Mr. Shaw's right facial nerve on April 16, 1996. Although the surgery resulted in substantial improvement of his hemifacial spasm, he began to experience a myriad of problems, such as a ringing in his ears, problems seeing and hearing, and confusion due to his difficulty remembering things. Mr. Shaw was unable to walk without a cane, and he fell frequently. He required assistance with bathing and shaving. He did not sleep well, and he was depressed and testy. He also suffered from frequent headaches. These symptoms were all due to his injury, the surgery, and the medications.Dr. Kaufman released Mr. Shaw to return to limited work on October 11, 1996. He advised that Mr. Shaw's work be limited due to the risk to himself and to others if he were to have a sudden and unpredictable severe attack of spasm. On November 3, 1996, Mr. Shaw attempted to return to work. Despite his three decades of drywall work, Scotty had to instruct Mr. Shaw how to do his job. Mr. Shaw discontinued working when he fell while on the job three days later. He told Scotty that his knees "gave away." Thereafter, Scotty paid several social visits to Mr. Shaw's home. Dr. Kaufman advised that Mr. Shaw should not continue working because of the risk of injury if he fell. He also opined that Mr. Shaw's condition was related to his original injury.

Allied terminated temporary total disability benefits on November 7, 1996, and delayed medical care, contrary to the ALJ's 1996 award. Allied's position was that Mr. Shaw's facial nerve problem had been corrected, and they believed that he was suffering from a new problem related to his knee. Mr. Shaw was granted a hardship hearing before the same ALJ on June 22, 1997, seeking enforcement of the previous award. Scotty testified that he never instructed anyone to limit, delay, or stop medical treatment or TTD benefits. He also testified that, although he had had part-time light-duty work available since November 1996, he was afraid that Mr. Shaw would get hurt if he returned to work. Scotty's concern was related not only to Mr. Shaw's knees, but also to his other problems. Allied presented no witnesses and chose only to cross-examine Mr. Shaw's. The ALJ issued another temporary or partial award that reaffirmed the prior award, which ordered the payment of temporary total benefits from November 8, 1996, through the date of the hearing and continuing into the future, as well as that Mr. Shaw be provided with future medical care. This time, the ALJ also awarded costs and attorney fees under section 287.203 because temporary total disability benefits had been terminated and Mr. Shaw prevailed.

Allied engaged Dr. P. Brent Koprivica to examine Mr. Shaw on June 9, 1998. Based upon a review of Mr. Shaw's medical records and his examination, he concluded that Mr. Shaw's hemifacial spasm, hearing loss, tinnitus, and balance difficulties all resulted from his accident, and he further opined that Mr. Shaw's concomitant psychological responses to his physical disabilities, including his loss of memory, inability to concentrate, mood swings, and depression, rendered him unemployable in the open labor market.

A final hearing was held on June 17, 1999, and the ALJ issued a final award on July 26, 1999. The ALJ determined that Mr. Shaw was permanently and totally disabled as a result of the accident on October 3, 1994, and that the employer was responsible for continued medical care for the side effects of the injury, surgery, and medications. On July 27, 1999, Allied discontinued medical care payments, pharmacy bill payments, and TTD benefits.

Pursuant to section 287.480, Allied applied for review by the Labor and Industrial Relations Commission of the final award on August 11, 1999. While awaiting transcripts of the two prior hearings, Mr. Shaw filed Motions to Dismiss the Application for Review, Alternative Request for Hardship Setting and Motions for Penalties, Civil Contempt and Attorney's Fees. On March 21, 2000, the Commission issued an Order denying the Motion to Dismiss the Application for Review because the delay in reviewing the claim was due to the transcripts from the two prior hearings...