Palmentere Bros. Cartage Serv. v. Wright

• Decision Date: 01 October 2013
• Docket Number: No. WD 75921.,WD 75921.
• Citation: 410 S.W.3d 685
• Parties: PALMENTERE BROTHERS CARTAGE SERVICE, Appellant, v. Wanda WRIGHT, Respondent; Treasurer of the State of Missouri—Custodian of the Second Injury Fund, Respondent.
• Court: Missouri Court of Appeals

410 S.W.3d 685

PALMENTERE BROTHERS CARTAGE SERVICE, Appellant,

v. Wanda WRIGHT, Respondent;Treasurer of the State of Missouri—Custodian of the Second Injury Fund, Respondent.

No. WD 75921.

Missouri Court of Appeals, Western District.

Sept. 3, 2013. Application for Transfer to Supreme Court Denied Oct. 1, 2013.

Douglas M. Greenwald and Eric T. Lanham, Kansas City, MO, for appellant.

Eric W. Lowe, Kansas City, MO, and Donald T. Taylor, Kansas City, KS, for respondent.

Before Division Three: LISA WHITE HARDWICK, Presiding Judge, MARK D. PFEIFFER and CYNTHIA L. MARTIN, Judges.

LISA WHITE HARDWICK, Judge.

Palmentere Brothers Cartage Service (“Palmentere”) appeals from the Labor and Industrial Relations Commission's (“Commission”) final award that found Wanda Wright to be permanently and totally disabled as result of her work injury and, therefore, did not assess liability against the Treasurer of the State of Missouri as Custodian for the Second Injury Fund. Palmentere contends the Commission's finding that Wright's permanent total disability was the result of the last injury alone is unsupported by competent and substantial evidence. For reasons explained herein, we affirm the Commission's award.

Factual & Procedural History

Wanda Wright began working for Palmentere as a truck driver in 2003 at the age of forty-two. On December 2, 2003, Wright was traveling as a passenger in a tractor trailer driven by a fellow Palmentere's driver. While in route from Kansas City to Dallas, Texas, the tractor trailer went off the road in Franklin County, Kansas, resulting in an accident and causing physical injuries to Wright's back, neck, and left lower extremity.

Shortly after the accident, Wright moved to Texas and began working as a truck driver for W.W. Rowland. She continued working despite experiencing significant left knee pain with swelling and popping as a result of the injuries she sustained in the 2003 work accident. Following a 2005 MRI, which indicated a “complete tear of the anterior cruciate ligament,” Wright underwent two arthroscopy surgeries to her left knee. However, Wright's symptoms persisted after her surgeries, and because she could no longer press the clutch of her truck, she was unable to continuing working for W.W. Rowland. Wright has not worked since 2006.

In 2006, due to continued problems with her left knee, Wright began seeing Dr. Richard Robichaux, Jr., an orthopedic surgeon, who ultimately performed a partial knee replacement on Wright in 2007. Wright's condition, however, only seemed to worsen after the partial knee replacement surgery. Not only did the surgery fail to provide Wright significant physical improvement, but Dr. Robichaux also began to report that Wright was suffering from depression and anxiety following the 2007 surgery. Dr. Robichaux was the first doctor to comment about any psychological issues affecting Wright. In October 2007, Dr. Robichaux began prescribing mental health medications for Wright.

On November 13, 2007, Dr. Robichaux reported:

It is difficult for me to say at this time whether or not Ms. Wright will ever be able to return to work. The patient is doing well from her surgery, but she seems to have a great deal of emotional overlay. The patient does have what appears to be some symptom magnification.

Then, in March 2008, Dr. Robichaux reported that Wright was considering getting a job. Wright told Dr. Robichaux that she tried getting a job as a cashier, but she could not stand all day. Dr. Robichaux noted that Wright was “kind of stuck because she cannot stand on her feet for an extended period.”

At Wright's next visit with Dr. Robichaux, she was utilizing a cane for ambulation and her mental state had deteriorated further. Dr. Robichaux noted that Wright looked as if she had not slept in a couple of days. Dr. Robichaux also stated: “She just looks so terribly unhappy and she looks like she really needs some help.” In regards to Wright's physical condition, Dr. Robichaux concluded that the only work Wright would be capable of doing would be sedentary work.

At a follow-up visit with Dr. Robichaux in June 2008, Wright was despondent, crying, and stating that she felt like she wanted to “end it all.” Wright reported to Dr. Robichaux that her left knee was “pop[ping] and swell[ing] and [that] she [could not] straighten it out all the way and [that] it just hurt [ ] all day every day.” Wright stated that she regretted having the partial knee replacement surgery and sometimes felt like she wanted to kill herself.

Dr. Robichaux's last visit with Wright was on October 30, 2008. Dr. Robichaux noted that Wright felt her left leg was dead and numb as if there was no feeling and no muscle power. Wright told Dr. Robichaux that she had been to a few job fairs, but that no one wanted to hire her because she was a job risk. In his report, Dr. Robichaux stated: “I do not think that [Wright] understands that because she is using a cane and she is crying and she is just not well ... nobody is going to hire her not because of her knee issue but because of her underlying emotional state.”

In September 2008, Wright began seeing Dr. Ann Arretteig, a psychiatrist, for treatment of suicidal thoughts and her ongoing depression. Dr. Arretteig's notes state that Wright had been thinking of killing herself because of what appeared to be a hopeless situation. Wright reported that she was in constant pain because of her injuries from the 2003 work accident. Wright stated that she felt angry much of the time, ruminated about the past and what she perceived as a bleak future, took hours to go to sleep, woke easily, and had nightmares and flashbacks about the wreck. Wright admitted to overdosing about one month prior to her visit with Dr. Arretteig. Wright also indicated that she fantasized about cutting off her leg because she felt it would be easier to walk with a prosthetic leg. Dr. Arretteig noted that Wright became visibly angry when talking about her unsuccessful knee replacement and was angry at Dr. Robichaux for recommending it and at herself for agreeing to it. Wright stated that she was a different person before her injury, and Dr. Arretteig believed she was still mourning the loss of her physical abilities.

Following a psychiatric evaluation, Dr. Arretteig diagnosed Wright with “Major Depression, Single Episode, Psychotic;” there was no Axis II diagnosis regarding potential personality disorders. In a December 4, 2008 letter to Wright's attorney, Dr. Arretteig stated that Wright had a history of “what appears to be a learning disability;” however, that history is not further explained or documented in Dr. Arretteig's records. Due to Wright's alleged learning disability, and because Wright continued to experience pain while walking, Dr. Arretteig concluded that Wright was not a good candidate for retraining in a less physically demanding job. Dr. Arretteig stated that in her opinion Wright was unable to function in competitive employment.

In September 2009, Wright was hospitalized at Greenbrier Behavior Health for “suicidal ideation.” Wright described herself as helpless, hopeless, and worthless. Wright stated that she does little or nothing during the day and that she has absolutely no enjoyment. Wright related all of these issues back to the 2003 work accident and reported that “she ha[d] absolutely no psychiatric history” prior to the 2003 work accident. Dr. Alan Coe, a psychiatrist at Greenbrier Behavior Health, diagnosed Wright with “Major Depression, Recurrent, Severe Without Psychotic Features” and Anxiety Disorder. Again, like Dr. Arretteig's diagnosis, there was no Axis II diagnosis of any form of personality disorder.

Wright filed a workers' compensation claim against Palmentere and the Second Injury Fund on April 27, 2009. At a February 2012 hearing on the claim, Wright testified and presented her medical records, as well as deposition testimony from Dr. Kathleen Keenan, Dr. Lowery Jones, and Michael Dreiling.

Dr. Keenan, a licensed psychologist, evaluated Wright on May 13, 2010 at the direction of the Kansas Division of Workers' Compensation.¹ Dr. Keenan diagnosed Wright with several conditions, including: (1) “Major Depressive Disorder, Recurrent, Severe, without Psychotic Features;” (2) “Pain Disorder Associated With Both Psychological Factors and A General Medical Condition;” and (3) “Learning Disorder [Not Otherwise Specified], by history.” At her deposition, Dr. Keenan indicated that she had not conducted any learning disability testing. Dr. Keenan stated that she did not actually diagnose Wright with a learning disability, but “t[ook] that from the history.” However, on cross-examination, Dr. Keenan admitted that she never reviewed old school records. Dr. Keenan's conclusion that Wright suffered from a learning disability appears to be based solely on Wright's limited education and Wright's own report that she had difficulty reading. At the hearing, Wright agreed that she is “not a very good reader,” but testified that she “wouldn't say [she has] a real learning disability.”

In addition, unlike Dr. Arretteig and Dr. Coe, Dr. Keenan diagnosed Wright with an Axis II Borderline Personality Disorder. Dr. Keenan testified that it was her opinion that she could have diagnosed Wright's personality disorder prior to the date of her 2003 work accident. Dr. Keenan cited to Wright's failed marriages and her estranged relationship with her daughter as evidence that Wright's borderline personality disorderexisted prior to the 2003 work accident. Dr. Keenan acknowledged, however, that no other doctor had made an Axis II diagnosis.

Dr. Keenan ultimately rendered Wright an overall psychological impairment of 65%, 35% of which she attributed to Wright's workers' compensation injury and 30% of which she attributed to Wright's “pre-existing factors”—the personality disorder and learning disability. Dr. Keenan testified that these impairments rendered Wright totally...