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IN THE WORKERS' COMPENSATION COURT OF THE STATE OF MONTANA
1996 MTWCC 13
WCC No. 9407-7089
MICHAEL S. BLYTHE
FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT
Summary: Certified respiratory therapy technician was stuck by a needle that had just been used to draw blood from an HIV infected patient. In the years since, claimant has not tested positive for HIV, and while there is no reasonable prospect that he was infected by the needle stick, he claims that the incident caused disabling psychosis and depression.
Held: Claimant has fabricated and feigned mental illness in an attempt to advance his legal claims. He is not physically or psychologically disabled on account of the accident. Note: In EBI/Orion Group v. Blythe, 281 Mont. 50, 931 P.2d 38 (1997), the Supreme Court reversed and remanded for the WCC to exclude evidence by a psychologist who performed an IME and to reevaluate the evidence without the psychologist's testimony.
The petitioner, EBI/Orion Group, is a workers' compensation insurer which insured Community Medical Center (Community) in Missoula on January 29, 1989. On that date the respondent, Michael Blythe (claimant), who was working as a certified respiratory therapy technician at Community, was stuck by a needle which had just been used to draw blood from an AIDS infected patient. (The incident will be referred to as the "incident" or the "needle stick.") In the years since, claimant has not tested positive for the HIV virus, and there is no reasonable prospect that he was infected by the needle stick. However, he claims that the incident precipitated disabling psychosis and depression.
EBI/Orion seeks a determination that the incident did not trigger mental illness and that claimant is neither permanently totally nor permanently partially disabled as a result of the incident. In his response the claimant cross-petitions for a determination that he is suffering from a disabling mental condition which was caused by the incident. He asks the Court to determine the nature and extent of EBI/Orion's liability for compensation and medical benefits.
Claimant asserts that he suffers from psychosis and depression triggered by the incident. He claims he has auditory and visual hallucinations which have affected his ability to concentrate and work. EBI/Orion asserts that claimant's psychosis is malingered, i.e., he is faking mental illness in order to obtain monetary compensation on account of the incident. If claimant is malingering, then his claim for compensation and medical benefits fails.
The case came on for trial in Missoula on July 10, 1995. The trial lasted three days. The trial transcript spans 857 pages.
EBI/Orion was represented by Mr. Charles E. McNeil and Mr. Steven S. Carey. Claimant was personally present during the trial and was represented by Mr. Richard R. Buley. Counsel for both parties were well prepared and did outstanding jobs in presenting their cases. Their professionalism, and the outstanding experts who testified, made this trial the most interesting and riveting case over which I have presided.
Exhibits: Exhibits 1 through 9, 11 through 17, pages 1 through 5 and 20 through 22 of Exhibit 19, and Exhibits 20 through 22 were admitted into evidence. Exhibits 10 and 18 were withdrawn. Pages 6 through 16 of Exhibit 19 were refused.
Depositions: Two depositions of claimant and two depositions of William Stratford, M.D., were submitted to the Court for its consideration. In addition, the parties submitted depositions of Julie Gerberding, M.D., Sarah M. Baxter, Ph.D., Herman A. Walters, Ph.D., Sally Gauer, Ann Frazier, David Faust, Ph.D. and Richard Rogers, Ph.D. Dr. Stratford's first deposition taken March 30, 1995, will be referred to as "Stratford Dep. I" and his second deposition taken June 7, 1995, as "Stratford Dep. II." Claimant's first deposition of September 1, 1994, will be referred to as "Blythe Dep. I," and his second deposition taken June 2, 1995, as "Blythe Dep. II."
Witnesses: The following individuals testified at trial: Michael S. Blythe, William Stratford, M.D., David Faust, Ph.D., Meridee Lieberg, Kaylin Ward, Gail Hay, William R. Goodrich, Richard Rogers, Ph.D., Ron Simpson, William Triggs, Katherine Spealman and Herman A. Walters, Ph.D.
Proposed Findings and Conclusions: The Court permitted both parties to file post-trial proposed findings of fact and conclusions of law. They were filed September 5, 1995, at which time the case was deemed submitted.
Having considered all of the evidence in this case, including the exhibits, depositions, and trial testimony, the demeanor and credibility of the witnesses, and the arguments of the parties, the Court makes the following:
1. Claimant is 46 years old. (Ex. 1.) He has been married and divorced twice. (Tr. at 167.)
2. He fancies himself as an intellectual. He has told psychologists and psychiatrists that his IQ is between 131 and 135 and in the third standard deviation. (Tr. at 104, 124.) He claims to have a library of 50,000 books. (Tr. at 136.) He testified that he has six college degrees and is only a few credits short of two additional degrees. (Tr. at 66.) He is a perpetual student. (Tr. at 69-70.)
3. His college course work included courses in psychology. During the spring semester of 1985, he took an introductory course in clinical psychology. (Ex. 4 at 2.) In the winter and spring quarters of 1987 he took six different psychology courses. (Id.) In the fall of 1987 and the winter and spring of 1988 he took ten psychology courses. In the fall of 1988 and winter and spring of 1989 he took four psychology courses. (Ex. 4 at 2-3.) In June 1989 the University of Montana conferred upon him a bachelor's degree with a major in psychology. (Ex. 4 at 3.) When he was asked by Sarah Baxter, Ph.D., on October 25, 1989, to interpret Rorschach cards, he commented that he had previously seen all the cards and discussed them in one of his classes. (Ex. 2-45.)
4. Claimant is a certified respiratory therapy technician and has worked for 20 years as a respiratory therapist. He was also certified as a physician's assistant in the early 1970s. (Tr. at 645-46.)
5. EBI/Orion presented records and testimony indicating that during his childhood and teenage years the claimant engaged in some criminal activities and had seen a psychologist or psychiatrist. It also presented evidence that in 1971 he lied in order to obtain a discharge from the Navy. I have given no weight whatsoever to this evidence since it is remote in time and there is no similar evidence for the nearly 20 years that followed.
6. Claimant was employed as a respiratory therapist at Community from 1979 through March 19, 1991. (Ex. 14 at 12, 162.)
7. On January 29, 1989, claimant stuck himself with a needle from an arterial blood gas kit which had just been used to draw arterial blood from a patient infected with AIDS. The needle stick caused him to bleed. He self-treated his wound with bleach, then sought treatment in Community Medical Center's Emergency Room. (Tr. at 50-64, 742-43.) He was visibly shaken by the incident. (Id. at 743.)
8. At the time of the accident, Community Medical Center was insured by EBI/Orion.
9. Claimant filed a claim for compensation. (Ex. 1.)
10. EBI/Orion accepted liability for the claim.
11. Claimant has pursued other claims arising out of the January 1989 incident. He filed a civil action against the manufacturer of the arterial blood gas kit (Radiometer), Community, and his supervisor. The action was dismissed and the dismissal was affirmed on appeal in Blythe v. Radiometer, 262 Mont. 464, 866 P.2d 218 (1993). Dismissal of the action has no preclusive effect in this case.
12. Claimant suffered no permanent physical consequences on account of his injury. The puncture wound healed without incident. Claimant has consistently tested negative for the HIV virus (Blythe Dep. I at 48-49), and the uncontradicted expert medical testimony of Julie L. Gerberding, M.D. who specializes in HIV transmission, shows that an HIV infection would have appeared within three to six months after the needle stick (Gerberding Dep. at 10-11). At the time of trial, claimant was six years post-needle stick and still HIV negative. There is no credible evidence that he continues to be at risk for HIV and AIDS from the needle sick. Further, he does not have any reasonable fear of actually contracting HIV or AIDS as a result of the needle stick.
13. While suffering no permanent physical harm from the 1989 incident, claimant contends that he has suffered disabling psychological harm. He alleges that within weeks of the incident he experienced panic attacks. (Ex. 17-17 through 17-19.) He alleges that he became severely depressed and anxious. He alleges that he then began having auditory and visual hallucinations. All of this, he claims, led to a loss of interest in life, abandonment or reduction of his lifelong pursuits of physical fitness and education, an inability to work, inattention to housekeeping, and prolonged periods of sleep.
14. The issue squarely presented to the Court for decision in this case is whether his symptoms and disability are real or fabricated.
15. Four expert witnesses testified at trial. One additional expert testified by deposition. They were:
16. Claimant's case for psychological disability is built principally on his own testimony, his contemporaneous reports to others concerning his symptoms, the testimony of friends and associates tending to corroborate his claim of a psychological decline, and the testimony of Dr. Stratford.
17. For many years claimant has kept a diary. The diary consists of a daily appointment calendar in which claimant entered his appointments and errands, along with significant events occurring during the day.
18. Claimant claims, and testified, that shortly after the needle stick he began experiencing "sleep disturbances" and "panic attacks," then later on depression, and finally hallucinations.
(Id.; italics added for emphasis.) His note further indicates that he had already set up an appointment with Dr. Stratford for October 2, 1989, and states that he asked Biggins "about taking long term sick leave if in fact Dr. Stratford thinks it would be appropriate." (Id.)
19. On October 2, 1989, claimant saw Dr. Stratford. He told Dr. Stratford that three and a half years previous he had had panic attacks over his ex-wife; he then reported that he had experienced new panic attacks following the needle stick. (Stratford Dep. I at 62; Ex. 2-81.) He further reported that he had also experienced manic attacks, depression, and increased compulsivity, and that "30 days after stuck with needle, [he] started hearing voices, low tones, both male and female." (Stratford Dep. I at 63; Ex. 2-81.) Claimant talked and acted so irrationally that Dr. Stratford described him as being extremely despondent and "bizarre, fragmented, angry and [with] paranoid elements." (Tr. at 328.) He characterized claimant as "wild-eyed, floridly nuts, extremely psychotic." (Tr. at 189, emphasis added.)
20. Dr. Stratford immediately took claimant off work "for at least 6 weeks." (Ex. 14-78.)
21. On October 5, 1989, claimant called Biggins to tell him of Dr. Stratford's advice. In his diary claimant wrote:
22. Dr. Stratford sent claimant to Sarah Baxter, Ph.D., for psychological testing, which occurred on October 25, 1989. (Ex. 2-39 to 2-41.) Following the testing Dr. Baxter told Dr. Stratford that claimant had acted "very bizarrely" and had frightened her. (Tr. at 329.)
23. Over the next six years, Dr. Stratford prescribed various psychotropic drugs, including Zoloft, Tranxene, Lithium, Haldol, Thorazine, Ascendin, Cogentin, Novane, Prozac, Xanax, Pamelor, Triavil, and Norflec. (See Dr. Stratford's various office notes found at Ex. 2-81 to 2-154.) Blood tests for Lithium levels confirmed that claimant was taking the Lithium. However, Dr. Stratford's belief that claimant took the other prescribed drugs was based on claimant's reports rather than any independent verification. (Tr. at 412-13.) He did note, however, that side effects reported by claimant were consistent with known side effects of the prescribed medications. (Tr. at 315.)
24. At the time of trial, Dr. Stratford had prescribed Lithium, Zoloft and Tranxene. (Tr. at 424-25.) The Court asked the doctor what affect those drugs would have on a non-mentally ill individual. He replied that other than possible fatigue and drowsiness they would have no affect on a normal person. (Id.)
25. Since October 1989 claimant has continued to report hallucinations. He has reported auditory, visual and, probably, gustatory (taste) hallucinations.
26. Over the six year period since the incident, claimant has also reported depression, loss of interest in life, suicidal thoughts, anger, increased sleep, loss of energy, loss of a desire to work, inability to concentrate, apathy, aversion to human contact, a lack of joy, and an inability to maintain his physical exercise program. (Ex. 2-81 to 2-154; Stratford Dep. I, and Stratford trial testimony.)
27. Following the incident, except for the approximately eight weeks off in October and November 1989, claimant continued working for another two years. Then, on March 18, 1991, he had an encounter with Biggins over his performance. According to claimant's written description of the event, Biggins called him to his office at 7:17 a.m. to ask claimant why he had missed four ventilator checks the previous week and also to ask why he had worked two and a half hours overtime that week. (Ex. 14-151 to 14-159.) During the encounter claimant became angry. He described his reaction as follows:
(Ex. 14-157 to 14-158.) According to claimant's written report and his diary, at 9:23 a.m. he spoke to Dr. Stratford and told him of the events of the morning. (Exs. 14-158 and 17-263.) In response, Dr. Stratford prescribed six weeks off work. (Id.)
28. Important to later findings regarding malingering, the claimant's written report of the incident is over eight pages long, detailed to the point of noting the exact minute of each event, highly coherent and organized, and articulate. (Ex. 14-151 to 14-159.)
29. Claimant never thereafter returned to work and claims that he is permanently totally disabled from doing so on account of mental illness.
30. Eye witness evidence concerning claimant's behavior before and after the needle stick was conflicting:
Acording to Spealman, she became friends with claimant and socialized with him after work. (Tr. at 758-59.) At one point she indicated she dated him for a short while. (Tr. at 767.) She characterized him as an energetic, hard-driving individual prior to the needle stick, and as keeping himself in good physical condition. (Tr. at 759, 761.) After the needle stick she said that he became depressed, quit taking care of himself, was angry, and slept a lot. (Tr. at 760-61, 763.) She stopped seeing him in 1991. In 1992 claimant contacted her to ask her about what she had noticed about him since the needle stick, telling her "he wanted to have it documented in case -- he knew at that point that he was going to try to see if he could get the company that had given the defective needle." (Tr. at 761-62.) Spealman also said that claimant was "devastated" and depressed by a divorce that occurred prior to the needle stick. (Tr. at 768.)
31. Kaylin Ward is a respiratory therapist who has worked for Community since 1988. (Tr. at 451.) She first met claimant in 1987 when she was in training and did her clinical training under claimant's supervision. (Id. at 451-52.) She characterized him as "detached" prior to the needle stick. (Id. at 459.) She observed that both before and after the needle stick he did not socialize during work and often read books even during staff meetings. (Id.) She did not notice a change in his behavior or appearance following the incident. (Id. at 456-57.)
32. Gail Hay is another respiratory therapist. (Id. at 462.) She has worked at Community since 1976 and worked with claimant from 1979 to 1991. (Id. at 463.) When asked to describe claimant's outlook on life prior to the incident, she said:
(Id. at 464.) She did not observe a change in his personality after the incident (Id. at 469), although she indicated that beginning prior to the incident claimant did become more agitated about his job due to additional requirements made by the hospital on its respiratory therapy staff. (Id. at 472 and see Id. at 454.)
33. Sally Gauer worked in Community Hospital's respiratory therapy department from 1980 to 1992. (Gauer Dep. at 4-5.) She was on the shift following claimants' shift but talked to claimant at each shift change. (Id. at 6.) Their discussion at shift change averaged 30 minutes. (Id.) Gauer characterized claimant as "introverted" to the extent that in the 12 years she knew him, she "hardly knew him." (Id. at 7.) She described him as lazy and confirmed the "doomsday" description provided by Hay. (Id.) She did not observe any personality change following the incident. (Id. at 9.)
34. In Dr. Stratford's opinion the claimant suffers from "schizoaffective disorder" or "schizoaffective schizophrenia." (Tr. at 325, 404, 427.) He described the disorder as one where the individual has "mixed symptoms of both schizophrenia and mood disorder."(2) (Id. at 325.) Despite vigorous cross-examination at trial, Dr. Stratford adhered to his opinion and gave the further opinion that claimant is not malingering mental illness. (Id. at 303, 345, 406.)
35. In Dr. Stratford's opinion, claimant's mental illness was precipitated by the needle stick incident and is totally disabling. (Tr. at 338-89, 405.)
36. Dr. Walters, who examined claimant in the summer of 1992, "did not see a real clear path to a clinically certain diagnosis." In his report to Dr. Stratford, he said:
(Ex. 2-63.) He had no opinion concerning claimant's condition at the time of trial and conceded that claimant could be malingering.
37. Dr. Stratford defined malingering as the "conscious fabrication of symptoms . . . [for] secondary gain." (Tr. at 401.) Dr. Rogers defined "malingering" as "the deliberate fabrication or gross exaggeration of psychological or physical symptoms towards an external goal," including a financial gain. (Tr. at 669.) "Feigning"is "the voluntary fabrication or exaggeration of psychological or physical symptoms." (Id.) Those definitions are consistent with the definition set for in the Diagnostic and Statistical Manual of Mental Disorders, (4th ed. 1994) ("DSM-IV), which describes the "essential feature of malingering" as the "intentional production of false or grossly exaggerated physical or psychological symptoms, motivated by external incentives such as avoiding military duty, avoiding work, obtaining financial compensation, evading criminal prosecution, or obtaining drugs." (Id. at 683.)
38. Dr. Stratford administered a number of tests on claimant.
39. Dr. Rogers administered a Portland Digit Recognition Test and a Personality Assessment Inventory (PAI). (Tr. at 682.)
40. Both the MMPI and the MMPI-2 contain an "F scale," which is a score based on a series of questions which may be indicative of exaggeration or falsification of test answers. (Stratford Dep. I at 41.) Exaggeration may indicate malingering. (Tr. at 241, 530.)
41. The F scales on both MMPIs were significantly elevated. Dr. Stratford agreed that the MMPIs showed symptom exaggeration in a "fake, bad" direction, and that the clinical scales for both tests were therefore invalid. (Stratford Dep. I at 40, 47; Tr. at 179-184, 225.) He characterized the F scale for claimant's MMPI-2 as "off the charts." (Id. at 182.)
42. Dr. Stratford testified that there are a number of possibilities, other than malingering, for the elevated F scale scores. He said that an elevated score may also "reflect a lack of an 8th grade reading ability.... [a] cry for help..., confusion, and psychosis to an extent...." (Id. at 343.) Dr. Walters also acknowledged that the scores were extremely elevated. He identified the following possible explanations for the elevation:
(Id. at 801-02.)
43. Dr. Rogers also reviewed the claimant's MMPI and MMPI-2 results. He noted that on the 1989 MMPI, claimant's F scale score was as high or higher than "the cutting score for malingering" in 18 of the "18 studies which have been done using the MMPI in terms of feigning." (Id. at 688.)
44. In assessing possible explanations for claimant's high F scale score, Dr. Rogers ruled out any reading problem. (Tr. at 688.) He also ruled out confusion or carelessness, pointing out that the MMPI contained two scales -- the retest index and a carelessness scale -- to determine if the individual is responding systematically or consistently in his or her answers. (Id. at 689.) The retest index scale consists of 16 pairs of questions which are identical but spread out in the test. (Id.) The carelessness scale consists of 12 pairs of items which are opposite in content. (Id.) Claimant's scores on these scales indicated that he answered consistently. (Id. at 689-90.)
45. Dr. Rogers also was not impressed by the possibility that claimant's elevated F scale score might be due to psychopathology. He noted that of the 18 F scale studies, "11 of them addressed psychiatric populations, . . . his scores again meet or exceed the cutting score for each of those 11 studies." (Id. at 690.) He concluded that among the explanations for the elevated scores, "malingering is a high probability in this case." (Id. at 691.) He then amended his answer to state that it is a "very high probability." (Id.; emphasis added.)
46. Dr. Rogers also evaluated other MMPI scales indicative of feigning.
47. Dr. Rogers reviewed claimant's MMPI-2 results. The MMPI-2 was developed in 1989 and designed to replace the MMPI. It eliminated some objectional items, modified others, and renormed the scales. (Id. at 693-94.) As with claimant's original MMPI, the results on the F, F minus K and obvious versus subtle scales were elevated and above cutting scores for feigning. (Id. at 694.)
48. The MMPI-2 also contains an additional scale which may indicate feigning. That scale is the "Lachar-Wrobel" scale. Dr. Rogers described the usage of the scale as follows:
(Id. at 695.) The highest cutting score established through research is 67; claimant's score was 75.
49. Claimant told Dr. Stratford that he had answered MMPI questions "randomly." (Id. at 279-80.)
50. Dr. Faust testified persuasively that claimant's MMPI F scale scores were not the result of random answers. (Id. at 533-44.) Indeed, the possibility of random answers is remote. (Id.)
51. Moreover, in his deposition the claimant testified that he answered all MMPI questions truthfully. (Blythe Dep. I at 62.) This answer is important not only in the context of the MMPI but also in determining claimant's honesty and credibility. His deposition answer contrasts to what he told Dr. Stratford. (See Finding 43.) His statements are further evidence of the conclusion, reached in later findings, that the claimant is not credible or truthful.
52. While the MCMI is not as good an indicator of malingering as the MMPI (Tr. at 518-19), claimant's responses to that test were similarly exaggerated (id.; Stratford Dep. 1 at 39-40).
53. Dr. Stratford agreed that claimant was "lying through his teeth" in his responses to the SIRS test administered on October 5, 1994. (Stratford Dep. I at 37.) However, he questioned its validity when applied to psychiatric patients.
54. Dr. Rogers was the primary author of the SIRS, which is a structured interview administered "to assess malingering and other response styles." (Tr. at 697.) In developing the test, Rogers established specific rules to minimize the likelihood that a genuinely mentally ill patient will be misclassified as a malingerer. (Id.) The test has been validated on groups of mentally ill patients, including psychotic patients. (Id. at 698.) Dr. Rogers described the items which are included in the test as follows:
(Id. at 698-701.) Malingering is probable if "any score is in the definite range or three or more scores [are] in the probable range." (Id. at 701, 703.) Claimant scored in the probable range on five scales. The cutoff score for the test is 76. After rescoring the test and giving the claimant the benefit of the doubt on certain questions, claimant's score was 100, reflecting a high probability of malingering. (Id. at 705-06.)
55. Among the tests administered by Dr. Rogers was the Personality Assessment Inventory (PIA). Like the MMPI, it has numerous scales, including validity scales used to determine whether "an individual is responding in a forthright fashion or whether, perhaps, they are feigning either good or bad." (Id. at 675-76.) One of the validity scales is the Negative Impression Scale (NIM). In terms of percentiles, scores above the 70th percentile indicate feigning. (Id. at 676-77.) Claimant's score was above the 99th percentile. (Id. At 677.) When the scale is normalized just for psychiatric patients, claimant's NIM score was still above the 99th percentile, meaning that more than 99 of every 100 psychiatric patients taking the test scored lower on the scale than did claimant. (Id. at 677-78.) Dr. Rogers testified that claimant's responses on the test were deliberate, not random.
(Id. at 679, emphasis added.)
56. Claimant's raw score on the NIM scale was 17. (Ex. 21-69; Tr. at 681.) Dr. Rogers, who is in the process of doing research on the use of the PAI to specifically detect individuals feigning schizophrenia, depression and generalized anxiety, testified that claimant's score was higher than 93.3 percent of schizophrenic patients taking the test and higher than 98.5 percent of the depressed patients taking the test. (Tr. at 680.) Dr. Rogers testified that, "it's a very small probability that genuine patients would score at 17 or above." Thus, there is a "high probability that his [claimant's] NIM score is based on malingering." (Id. at 680.)
57. Dr. Rogers also administered a Portland Digit Recognition Test. (Id. at 682.) The test is used to detect individuals who are feigning cognitive problems, particularly problems with concentration or short-term memory. (Id.) The test was administered to claimant because he complained of "severe problems with concentration and short-term memory." (Id.) The test was administered to and normalized for various criterion groups, including groups of individuals with moderate and severe brain damage. (Id. at 683-84.) The lowest score for any of the criterion groups was 39; claimant scored 27. (Id.) To a 90 percent probability, an individual answering randomly, i.e., by chance, would score between 30 and 42 on the test. Claimant's score of 27 fell in the 97th percentile, meaning that "97 percent of the time this is unlikely to have occurred by chance and only to have occurred if the individual is feigning." (Id. at 684.) Dr. Rogers testified that "[t]he only logical way that a person could score below chance is if they recognized the correct answer and chose to answer incorrectly." (Id. at 685, emphasis added.)
58. On July 13 and August 5, 1992, Dr. Walters examined claimant at Dr. Stratford's request. Dr. Stratford asked Dr. Walters whether claimant "was a bullshitter or was he crazy." (Id. at 183.) Dr. Walter's notes recorded the conversation as "B.S. or crazy." (Id. at 814.)
59. Dr. Walter testified that the DSM-IV lists four criteria, any combination of which, require consideration of malingering as a diagnosis. (Id. at 807-09.) Those criteria are:
(American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 683 (4th ed.)
According to Dr. Walters two, and possibly three, of the criteria are present in this case. (Tr. at 830-36.) Dr. Walters conceded that malingering is a definite possibility in this case.
60. Both Drs. Walters and Stratford testified that claimant can be exaggerating and falsely reporting symptoms and still be psychotic. (Id. at 225, 360, 837.) I have carefully considered and weighed this possibility in reaching my decision in this case.
61. Dr. Stratford testified that some of claimant's symptoms are atypical. Drs. Rogers and Faust agreed and added to Dr. Stratford's list of atypical symptoms. The atypical symptoms are set forth below:
62. Claimant was clearly angry over being stuck by an AIDS contaminated needle and believed that the arterial blood gas kit, of which the needle was a part, was defective. He also believed that Community was negligent in allowing its continued use.
63. Immediately following the needle stick incident, claimant began recording information concerning the allegedly defective blood gas kit, Community Medical Center's continued use of the kit, and his own mental state. (Ex. 17.) The entries began within two days after the incident (id. at 15) and were made in the diary he kept (Tr. at 60).
64. Commencing on February 1, 1989, claimant began noting sleeplessness, panic and anxiety attacks, depression and ultimately, hallucinations. On February 1st, he recorded "sleep disturbances." (Ex. 17-15.) On February 7, 1989, he recorded a panic attack. (Id. at 17.) He thereafter continued to periodically make entries concerning panic, anxiety, anger, manic attacks and depression, or generally his "psychological state." His entries over the next few months were made on February 23, 1989 (id. at 22); March 9, 1989; March 9, 1989 (id. at 29); April 4, 1989 (id. at 33); June 10, 1989 (id. at 52); August 1, 1989 (id. at 67); August 3, 1989 (id. at 68); September 15, 1989 (id. at 81); September 20, 1989 (id. at 82). He further recorded conversations in which he told others of his panic attacks or depression. (Id. at 19, 26, 75, 83, 85.) On August 29, 1989, he made the following entry:
(Id. at 75.) He also recorded a conversation with another individual wherein she related her depression due to her father's death and being stuck with an AIDS contaminated needle. (Id. at 55.)
65. Claimant recorded observations concerning the continued availability and use of the allegedly defective blood gas kits, going so far as to have others make observations for him and to take photographs. On February 28, 1989, he recorded a conversation with Linda Smith, whose job at Community included quality assurance, concerning "defective ABG [arterial blood gas] kits." According to his note, he was assured the kits had been removed from use. (Id. at 23.) But in a note the next day, March 1, 1989, he recorded that he had discovered a kit in a drawer in the PFT lab. (Id.) On March 2nd he recorded that the kit was still in the drawer. (Id. at 24.) On March 29th he recorded, "Ron: Pictures of syringe (defective)(rescheduled)." (Id. at 31.) A note on May 13, 1989 reflects that he actually "[t]ook pictures of defective Radiometer ABG kit still in drawer in PFT lab." (Id. at 44.) On May 28, 1989, he recorded that Sue Buchholtz had observed a defective kit in the PFT lab drawer at 2:05 a.m. (Id. at 48.) On May 29, and June 6, 7, and 24, 1989, he recorded different people had observed the ABG kit in the PFT lab. (Id. at 49, 51, 56.) On July 8, 1989, he took more pictures of the ABG kit and reported that it had been "transferred from site of old PFT lab in basement to new location also in basement of MCMC still available for use." (Id. at 60.)
66. Shortly after the needle incident, claimant also began compiling articles concerning AIDS and later on employed a researcher to obtain abstracts of articles concerning schizophrenia. (Id. at 89-90, 102.) At the time of hearing he had compiled a stack of materials 10 to 12 inches high. (Tr. at 90.)
67. At trial claimant admitted that he intended "from the very beginning" to sue Radiometer, the manufacturer of the blood gas kit. (Id. at 774.) He elaborated:
(Id. at 775.)
68. On March 12, 1989, just a month and a half after the incident, the claimant made an entry which reads in relevant part, "Talked c [with] Dr. Bob [Ammons] this evening about triggering event -- he verified what I said." (Ex. 17-26, emphasis added.) According to claimant, Dr. Ammons is a psychologist who teaches at the University of Montana. (Tr. At 395.)
69. On March 23, 1989, less than two months after the incident, claimant referred in his diary to Jerry Spence and Melvin Belli, two well known tort lawyers. (Tr. at 173.) At trial, claimant explained that he wrote their names in his diary because he was considering consulting with them concerning business matters pertaining to the marketing of a plywood/sheetrock carrier a friend had invented. (Id. at 173, 780-81.) However, in further notes he made on the same page as his reference to Spence and Belli, claimant wrote "law suit." (Ex. 17-30.) I find his explanation regarding his reference to Spence and Belli at best implausible and, more likely than not, a deliberate falsification to conceal the fact that he recorded their names as potential lawyers who might represent him in lawsuits arising out of the needle stick incident.
70. Within a week of the note concerning Spence and Belli, claimant made an entry concerning the rescheduling of photos of the defective syringes. (Id. at 31.)
71. On April 21, 1989, his diary reflects an interesting discussion with Biggins concerning lawsuits. (Id. at 38.) According to claimant's note, Biggins told him that his (claimant's) filing of an incident report and his having tested HIV negative on the first test would work in his favor in any lawsuit. Claimant then went on to say, "Lawsuits are currently serving as precident [sic] setting in terms of the formulation of law in this area." (Id.)
72. Dr. Stratford testified that when he initially saw claimant he was impressed by the fact that claimant seemed uninterested in a lawsuit (Tr. at 175-76, 186-87, 190); he felt it took claimant a "considerable amount of time . . . to become preoccupied with legal aspects of the case." (Id. at 176). Dr. Stratford commented that it was only after claimant became obsessed with litigation that he began exaggerating. (Stratford Dep. I at 57-59; Tr. at 176-77). Referring to his initial contact with claimant in October 1989, Dr. Stratford said, "There were no legal issues at that point" and that "in the beginning, he was a sick guy; before the litigation, before those issues occurred." (Stratford Dep. I at 57, 59.)
73. When confronted with notes taken by claimant on October 3, 1989 (the day after Dr. Stratford examined claimant and found him to be "floridly nuts"). Dr. Stratford conceded that the notes showed that claimant was in fact already interested in a lawsuit. (Tr. at 190-98.)
74. The October 3, 1989 notes are from a lecture on AIDS which claimant attended. The notes contain personal comments by claimant. Among his comments was, "This exposure was the crowning blow re: the destruction of my ego -- related to lifelong examples of rejection." (Ex. 16-15.) He specifically mentioned a lawsuit in a personal context:
(Id. at 16.)
75. In notes taken October 10, 1989, claimant entered the following in the margin: "Legal Aspects: What Community Hospital might try to use against me." (Id. at 18.) On the next page of his notes, claimant refers to "Workman's Comp.", adding, "Long Term and short term disability but certain very specific parameters, i.e. clinical diagnoses." (Id. at 9; emphasis added.)
76. Notes taken on November 7, 1989, further reflect claimant's preoccupation with launching a lawsuit.
77. Three years after the incident, on September 14, 1992, claimant reported to Dr. N.L. Hoell, a psychiatrist who at the request of Dr. Stratford examined claimant on two occasions, that "[h]e feels he's been generally treated bad by people throughout his life and is tired of being treated badly, will reciprocate whenever this happens with legal action when appropriate." (Ex. 2-72, emphasis added.) Dr. Hoell further reported:
(Id. at 73.)
78. Meridee Lieberg, a registered nurse at Community, testified that:
(Tr. at 447.) Lieberg was a credible witness and I find that the conversation in fact took place.
79. On April 24, 1991, claimant recorded the following in his diary:
(Id. at 164-65; Ex. 17-275.)
80. After considering claimant's own notes and actions during the months following the needle stick, along with the other evidence in this case, including claimant's demeanor and testimony at trial, I find that at the time claimant was examined by Dr. Stratford in October 1989, he was already obsessed with suing Radiometer and Community and was actively plotting his course of action against them. In fact, the claimant decided to pursue legal action immediately after being stuck with the AIDS contaminated needle. The element of secondary gain was, and is, fully present.
81. Claimant's cessation of work occurred shortly after claimant began to more actively seek an attorney to represent him in an action against Radiometer and Community. Claimant testified that he initially consulted with attorneys in Spokane, then with John Whiston, an attorney in Missoula. (Tr. at 776.) He was consulting with Whiston at least as early as January 1990, as Dr. Stratford wrote a letter to Whiston on January 30, 1990. (Ex. 2-185.) Matters apparently then foundered until December 1990 or January 1991, when claimant sought representation from Thomas Frizzel. (Ex. 17-217, 247-50.) Frizzel eventually represented claimant in the litigation against Radiometer, see Blythe v. Radiometer America, Inc., 262 Mont. 464, 866 P.2d 218 (1993), and was the initial counsel in this proceeding. Claimant ultimately launched a lawsuit against Community and the manufacturer of the blood gas kit. (Tr. at 848-49.) His diary for April 24, 1991, a month after his final confrontation with Biggins, reflects an appointment to see Frizzel to "sign papers." (Ex. 17-275.)
82. Prior to the needle stick incident the claimant's job performance was satisfactory, if not excellent. After the incident his performance was criticized on several occasions and he was counseled and reprimanded. (Ex. 14-110, 14-111 and 14-163 to 14-165.) The incidents might be explained by mental illness but they can also be explained by claimant's growing anger and hostility towards Community and his supervisor, Biggins. The escalation of serious incidents in the late fall of 1990 and winter of 1991 (id. at 110-11; 151-59) coincided with claimant's actively seeking an attorney to represent him in the lawsuit against Radiometer and Community. (See Finding 78.) Considering all of the evidence in this case, I am persuaded that claimant's conflicts at Community following the incident were the result of his anger and hostility, not because of mental illness.
83. After claimant's encounter with Biggins in March 1991 and his cessation of work for Community, claimant continued to work at an occasional job for Sunshine Oxygen. On April 5, 1991, after Dr. Stratford had taken him off work, claimant traveled to Butte for a job with Sunshine. (Tr. at 149; Ex. 17-270.) He also continued developmental work on a magnetic medical card and pursued marketing of the three inventions previously mentioned. (Tr. at 150-51, 160-63.) Ultimately, he invested heavily in the proposed ventures, resulting in heavy financial losses. (Stratford Dep. II at 37; Ex. 22.) Claimant declared bankruptcy in 1995. (Ex. 22.)
84. Claimant has made conflicting statements regarding significant facts:
(Tr. at 68.)
85. Considering his education, including his course work and degree in psychology, his extensive reading, his intelligence, and his motivation to make Community and the blood gas kit manufacturer pay for what he believed was their negligent and reckless conduct, I find that claimant was capable of fabricating and feigning his symptoms and of modifying his life style and behavior patterns to support such fabrication.
86. Claimant was not a credible witness and has not been truthful.
87. According to Dr. Stratford, keeping a diary such as Blythe's is not a typical feature of schizophrenia. "Not traditionally, no. This is something that reflects probably the uniqueness of Mr. Blythe in that he likes to write and likes to order things and order his world like that." (Tr. at 431.) After hearing and weighing all of the testimony in this case, I find that claimant's diary entries were made with a deliberate eye towards litigation.
88. While Dr. Stratford did not believe that the meticulous, organized and coherent notes taken by claimant on October 3, 1989, were inconsistent with what he observed of claimant on October 2 and 3, Dr. Faust disagreed, testifying that the notes were inconsistent with the psychotic state described by Dr. Stratford. (Id. at 621.) After examining the notes, observing claimant, and considering the testimony of Drs. Stratford and Faust, I find Dr. Faust's testimony more persuasive. The notes themselves stand in stark contrast to Dr. Stratford's description of claimant on October 2nd as "bizarre, fragmented" and "wild-eyed, floridly nuts." (Id. at 328, 189).
89. The timing of the apparent onset of claimant's alleged hallucinations is in itself troublesome.
90. Dr. Stratford conceded that a skilled clinician, such as himself, can provide "support" for but "not proof" of psychosis. (Stratford Dep. I at 16.) He noted that existing data suggests that clinicians are not particularly good at detecting malingered psychosis (id. at 18) and agreed that one should be suspicious of malingering if the test data suggest that possibility (id. at 19). Dr. Stratford also acknowledged that Dr. Rogers "is one of the better ones" practicing in the field of psychology in detecting malingerers. (Id. at 20.)
91. Dr. Stratford agreed that it is possible that the claimant is in fact malingering (Tr. At 303, 406), although in his opinion he is not.
92. Dr. Stratford agreed that based only on psychological test results he had never seen a stronger objective case for malingering. (Stratford Dep. II at 21-22; Tr. at 193.) He also conceded, as did both Drs. Rogers and Faust, that all of the objective testing showed that claimant "exaggerated, distorted, and over reported all of his symptoms." (Stratford Dep. I at 40, 51.)
93. Dr. Stratford pointed out in his testimony that claimant's exaggeration on psychological tests does not prove that he is not psychotic. (Tr. at 225-26.) The Court agrees with his observation. On the other hand, the test evidence cannot be ignored and is a strong, though not conclusive, indicator of malingering.
94. Claimant's evidence explaining his test scores was unpersuasive.
(Tr. at 80-82.)
(Id. at 83-84.)
95. To diagnose malingering, Dr. Stratford said he would focus on four factors:
(Stratford Dep. I at 14.) But he added at trial that to make a diagnosis of malingering he would have to "catch them [the patient] in the act," or catch them "red-handed." (Tr. at 198-99.)
96. In light of the test results and the possibility of malingering, Dr. Stratford believed that it was necessary to verify claimant's assertions by "collateral contacts,", i.e., contacts with third persons who could verify or dispute claimant's story. (Stratford Dep. I at 11, 16; Tr. at 201.) Despite that belief, Dr. Stratford's collateral contacts were belated and half-hearted. While he claimed at trial to have made collateral contacts "from the get-go" and prior to December of 1991 (Tr. at 215-17), his file and his notes do not reflect any contacts prior to April 1992 (id. at 217). Moreover, when asked by the Court whether he was sure he had contacts prior to December 1991, he replied that he wasn't. (Id.) Dr. Stratford also relied initially on written reports of collateral contacts which were prepared and submitted by claimant himself. (Ex. 2-172 to 2-180.)
97. Dr. Stratford did not contact persons on claimant's so-called enemies list (id. at 181; Tr. at 265-66) or read claimant's diary. (Tr. at 240). He also repudiated his own handwritten office note regarding his interview of Spealman. According to his note, Spealman told him that claimant became depressed in 1991. (Id. at 391.) Dr. Stratford conceded that her observation was at odds with his own observation of depression in 1989 and 1990. (Id.) However, Dr. Stratford then repudiated the note, testifying that his recollection was different from the note and that Spealman had indicated that claimant had changed immediately after the needle stick. (Id. at 391-93.) His testimony in this regard was not credible.
98. After listening to Dr. Stratford's testimony, and considering his failure to initially pursue collateral contacts; his failure to contact individuals he knew might have adverse information; his repudiation of his own office notes concerning his conversation with Spealman; and his unhalting and unwavering adherence to his original opinion despite new information indicating that claimant was not always truthful with him and was already focused on a lawsuit when first seen on October 2, 1989, I am persuaded that Dr. Stratford lost his objectivity concerning the claimant.
99. On the other hand, I was impressed and persuaded by the testimony of both Drs. Faust and Rogers, especially Dr. Rogers, whom I felt was thorough, professional, and knowledgeable, and the best expert witness I have ever observed. Dr. Rogers examined claimant over a two day period on June 23-24, 1995. (Id. at 663.) His examination consisted of both structured and unstructured interviews and a series of psychological tests. (Id. at 663.) Excluding time spent administering psychological tests, Dr. Rogers spent ten hours examining claimant. (Id. at 665.) I am persuaded that he was objective in his examination and note that in the last five cases in which Dr. Rogers has been asked to examine individuals to determine if they were malingering, there were two cases in which other experts opined that individuals were malingering but Dr. Rogers came to the contrary, non-malingering conclusion. (Id. at 662.) Dr. Rogers was more knowledgeable than Dr. Stratford in testing for malingering and in identifying malingerers.
100. Taking everything into consideration, it was Dr. Rogers' unequivocal opinion that "he [claimant] is malingering mental disorders." (Id. at 708.) He "found no evidence of there being a mental disorder caused by the needle stick" and had the further opinion that claimant is not suffering from any mental disorder which impairs his ability to work. (Id. at 708-09.)
101. Dr. Roger's opinion was supported by numerous facts. The number and nature of the atypical features of claimant's alleged mental disorder were extraordinary. Moreover, the evidence presented to the Court showed that claimant falsely answered psychological tests in a deliberate effort to "fake bad" and that he is knowledgeable concerning psychological matters and capable of fabricating and feigning psychiatric symptoms. From virtually the moment of the needle stick, he has been intent on pursuing legal action on account of his injury. His reports to Dr. Stratford concerning his activities were sometimes incomplete or exaggerated. In the Court's assessment, his explanations at trial were smoothly delivered but often incredible and unbelievable.
102. After reviewing and carefully considering all of the evidence in this case, I find that claimant's mental illness is malingered. I further find that he is not suffering from a schizoaffective disorder or any other psychotic diagnosis. While he may well have some depression, that is a life-long problem and a personality characteristic which is not attributable to the industrial accident.
103. I find that claimant is able to work as a respiratory therapist and that his case for disability was fabricated.
1. Claimant has the burden of proving an entitlement to benefits by a preponderance of the probative, credible evidence. Dumont v. Wickens Brothers Construction Co., 183 Mont. 190, 201, 598 P.2d 1099, 1105 (1979). In this case he must establish that he is totally disabled on account of his industrial accident.
2. Claimant has failed to carry his burden of proof. Indeed, the Court finds that the evidence preponderates against him. As found, he has fabricated and feigned mental illness in an attempt to advance his legal claims. He is not physically or psychologically disabled on account of his industrial accident.
3. EBI/Orion has paid benefits under a reservation of rights. In light of the decision in this case, it is not liable for further benefits.
4. Since claimant has not prevailed, he is not entitled to attorney fees, costs or a penalty. Moreover, even had he prevailed the insurer's defense of this case was reasonable and provides no basis for an attorney fee award or a penalty.
1. Claimant is not disabled on account of his January 29, 1989 industrial injury and is not entitled to further compensation or medical benefits from the EBI/Orion.
2. Claimant is not entitled to attorney fees, costs, or a penalty.
3. This Judgment is certified as final for purposes of appeal.
4. Any party to this dispute may have 20 days in which to request a rehearing from these Findings of Fact, Conclusions of Law and Judgment.
DATED in Helena, Montana, this 8th day of February, 1996.
1. Pages 138 to 154 of Exhibit 2 are a typewritten transcription of Dr. Stratford's handwritten office notes from April 27, 1992 to December 5, 1994. The handwritten notes are at pages 103 to 137 of Exhibit 2.
2. The American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 292 (4th ed. 1994) states:
3. "Psychosis" is a general term encompassing mental disorders "characterized by gross impairment in reality testing as evidenced by delusions, hallucinations, markedly incoherent speech, or disorganized and agitated behavior," and includes schizoaffective disorder. Dorland's Illustrated Medical Dictionary 1385 (27th ed. 1988)
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