Adamson v. Davis Moore Datsun, Inc., 69399

• Decision Date: 18 February 1994
• Docket Number: No. 69399,69399
• Citation: 19 Kan.App.2d 301,868 P.2d 546
• Parties: Doyce D. ADAMSON, Appellant/Cross-Appellee, v. DAVIS MOORE DATSUN, INC., and United States Fidelity & Guaranty Co., Appellees/Cross-Appellants.
• Court: Kansas Court of Appeals

Page 546

868 P.2d 546

19 Kan.App.2d 301

Doyce D. ADAMSON, Appellant/Cross-Appellee, v. DAVIS MOORE DATSUN, INC., and United States Fidelity &amp Guaranty Co., Appellees/Cross-Appellants.

No. 69399.

Court of Appeals of Kansas.

Feb. 18, 1994.

Syllabus by the Court

1. It is firmly established in this jurisdiction that traumatic neurosis following physical injury and shown to be directly traceable to the injury is compensable under the Workers Compensation Act.

2. When there has been a physical accident or trauma, and claimant's disability is increased or prolonged by traumatic neurosis, conversion hysteria, or hysterical paralysis, the full disability including the effects of the neurosis is compensable.

3. The trial court's conclusion that physical and psychological functional impairments could not be combined to obtain a total permanent partial general disability is one of law over which this court has unlimited review.

4. There is no distinction between physical and psychological injury for the purpose of determining whether a worker's disability from an injury is compensable.

5. Functional impairment may be either physical or psychological.

6. When a primary injury under the Workers Compensation Act is shown to have arisen out of the course of employment, every natural consequence that flows from the injury, including a new and distinct injury, is compensable if it is a direct and natural result of the primary injury.

7. A disability award must be based on the consideration of both physical and psychological impairment, but the increase, if any, which occurs when both physical and psychological impairments exist will depend on how each impairment affects the other.

8. Psychological impairment may expand or only complement and be compatible with the existing physical impairment. Conversely, physical impairment may expand or only complement and be compatible with the existing psychological impairment.

9. Under the facts of this case, it was erroneous for the trial court not to give consideration to both the physical and psychological impairments which the claimant suffered in determining the claimant's final disability rating.

Martin E. Updegraff, Wichita, for appellant/cross-appellee.

Don D. Gribble II and Curtis L. Perry, of Kahrs, Nelson, Fanning, Hite & Kellogg, Wichita, for appellees/cross-appellants.

Before PIERRON, P.J., and LARSON and GREEN, JJ.

LARSON, Judge.

In this workers compensation case, both parties appeal.

The claimant, Doyce D. Adamson, contends it was erroneous for the trial court not to combine physical and psychological impairment ratings and enter a larger permanent partial general disability award.

The respondent and its insurance carrier, Davis Moore Datsun, Inc., (Datsun) and United States Fidelity & Guaranty Co. (USF & G), contest any increase in the trial court's disability rating. By their cross-appeal, they claim there was insufficient evidence to justify disability ratings based on injuries to the left elbow, rotator cuff tears to the left shoulder, and psychological impairment.

Adamson, predictably, argues there is medical and psychiatric testimony to support his claimed disability.

We could quickly resolve this decade-old case if the existence of substantial competent evidence to support the trial court's award were the only issue. Simply stated, and we will develop this more in the opinion, although the evidence was highly conflicting, there is persuasive medical and psychiatric testimony sufficient to sustain the trial court's award, and the cross-appeal must be denied. However, as to the issue of combining physical and psychological impairments neither party cites controlling Kansas authority, which requires us to examine the facts in considerable detail.

Viewed through the eyes of the respondent and insurance carrier, the facts could be summarized in one short paragraph from a statement in their brief:

"Unbelievably, this claim began with an un-united chip fracture, one-tenth the size of a thumbnail of the claimant's left radial styloid. This small chip fracture has blossomed into alleged injury to the left elbow resulting in two surgeries, alleged injuries to the left shoulder resulting in two surgeries, and an alleged psychological injury. It is the cross-appellant's position that the claimant sustained, at the most, a scheduled injury to the left hand resulting in a 5% permanent impairment of function, and that the other problems are essentially the result of the claimant playing in a racquetball league after the accident, and his overall hypochondriac nature."

Candor and fairness plus our required scope of review to view the evidence in the light most favorable to the party prevailing below, Baxter v. L.T. Walls Constr. Co., 241 Kan. 588, 591, 738 P.2d 445 (1987), require that we make a more expansive review of the extensive record.

In February of 1983, Adamson, a used car salesman employed by Datsun during the long history of this case, fell while moving cars. He landed on his left shoulder and elbow and hit his left wrist on the bumper of a car.

Shortly thereafter, Adamson, who is left-handed, attempted to play racquetball but experienced pain and soreness to his left wrist, which persisted when he tried to play on subsequent occasions. In May of 1983, an orthopedic surgeon, Dr. Robert Eyster, diagnosed Adamson as having a sprained left wrist and a chip fracture of the left radial styloid, the area at the base of the thumb. Despite treatment, Adamson continued to experience numbness, swelling, and pain to his left hand and wrist.

In the late fall, another orthopedic surgeon, Dr. Robert Rawcliffe, Jr., contacted for a second opinion, diagnosed Adamson as suffering from an un-united minor fracture of the styloid process of the radius in the left wrist. Dr. Philip Mills conducted electromyographic (EMG) and nerve conduction velocity (NCV or NCT) evaluations, which failed to reveal any abnormalities.

In April of 1984, Dr. Eyster surgically removed the bone fragment from Adamson's left wrist. Adamson continued to complain of numbness from his left wrist to his left elbow. He failed to improve and in December of 1984, sought treatment from Dr. Tyrone Artz, an orthopedic surgeon, who prescribed physical therapy, the use of an elbow strap, and pain medication.

Although Adamson's left elbow showed some improvement, Dr. Mark Mandelbaum conducted EMG and NCV testing in April of 1985, which showed changes consistent with a left ulnar nerve compression at the elbow. This finding resulted in ulnar nerve transposition surgery by Dr. Artz, disclosing narrowing of the nerve at the left elbow. Adamson continued to complain of numbness and pain to the left elbow, and in September of 1985, Dr. Artz performed a second transposition surgery on the left elbow, which revealed a band of scar tissue that was removed and fatty tissue was placed around the nerve.

Adamson's left arm was casted to the shoulder after both surgeries, which required that he lay on his right shoulder. In October of 1985, he complained of discomfort to the right shoulder, which was diagnosed as bursitis and treated with cortisone injections. Adamson then complained of pain in his left shoulder a month later, and this was also diagnosed as bursitis and treated with cortisone injections. Adamson's numbness increased to his fingers, the ulnar aspect of the forearm, and the left side of his neck.

Dr. Artz referred Adamson to Drs. Carl Becker and Badie Mansour, both anesthesiologists, who administered pain block injections to both shoulders. Dr. Artz continued cortisone injections to both shoulder joints, which resulted in little relief. Dr. Artz referred Adamson to DuMont Schmidt, Ph.D., a psychologist, who began biofeedback and pain management therapy with Adamson in February 1986.

Dr. Schmidt diagnosed Adamson as suffering from somatoform pain disorder (a/k/a chronic pain syndrome), in which injury to muscles and nerves has occurred from trauma and pain continues despite negative x-rays and objective findings.

Dr. Artz continued to treat Adamson for increased shoulder pain with cortisone injections but referred him to Dr. Charles White, a specialist in physical medicine, who diagnosed chronic pain syndrome or a psychophysiologic musculoskeletal problem.

In April of 1986, Dr. Kenneth Hull, a psychiatrist, examined Adamson twice and diagnosed either conversion disorder or malingering and noted it was difficult to distinguish between the two diagnoses.

The cortisone injections continued, as did increasing amounts of pain killers and muscle relaxants. Dr. Artz cautioned that the more cortisone shots received, the greater the probability that Adamson's rotator cuff tendons could eventually rupture.

By October of 1987, Adamson was receiving psychiatric treatment from Dr. Charles Wellshear, who found substantial depression. Dr. Wellshear was convinced Adamson was not malingering and treated him for pain management and control of the depression.

In December of 1987, while attempting to spank his daughter Adamson experienced severe pain to the top of his left shoulder. An arthrogram revealed a torn rotator cuff, which Dr. Artz repaired in January of 1988. Adamson was off work for several months and while performing his prescribed exercises tore the rotator cuff tendon in a different location; that tear was surgically repaired in March of 1988. Adamson again did not work for an additional several months and experienced yet a third tear, which Dr. Artz advised should be allowed to heal by itself.

Adamson continued physical therapy, continued taking pain medication, and continued psychiatric treatment with Dr. Wellshear. However, his depression increased and he contemplated self-destruction, which resulted in his hospitalization for seven weeks in April of 1989. While hospitalized, Adamson was seen by Samuel Harrell, Ph.D., a psychologist, who diagnosed hypochondriasis and polysubstance...