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IN THE WORKERS' COMPENSATION COURT OF THE STATE OF MONTANA 1997 MTWCC 39 WCC No. 9407-7089R1 EBI/ORION
GROUP Petitioner vs. MICHAEL S. BLYTHE Respondent/Claimant. FINDINGS OF
FACT, CONCLUSIONS OF LAW AND JUDGMENT Summary: Reversing the Workers’ Compensation Court’s order that claimant submit to an independent medical examination by a psychologist, the Supreme Court ordered the lower court to reconsider its factual findings in the absence of evidence from the IME. Held: Even factoring out the IME doctor’s testimony, the Workers’ Compensation Court remained convinced that claimant was malingering. Topics:
Introduction to Decision on Remand This case is on remand from the Supreme Court. On appeal that Court held that this Court had erred in ordering an independent medical examination by psychologist Richard Rogers, Ph.D., and in relying on testimony stemming from that exam. It remanded the case for reconsideration. In reconsidering, I am to disregard Dr. Rogers' testimony. In remanding, the Supreme Court said:
(931 P.2d 38 (Mont. 1997).) I have underscored the last sentence because it suggests that my function on remand is merely to weigh and contrast Dr. Stratford's testimony against that of Dr. Faust. I do not believe my function is so limited. Resolution of this claim requires that I consider claimant’s credibility since, after all, Dr. Stratford’s opinions rest on what claimant told him. If those statements were untrue, as this Court initially found, then the entire foundation for Dr. Stratford's opinions is washed away. While Dr. Stratford genuinely believed the claimant, his belief is not binding on this Court, otherwise the fact-finding function vested in the Court would be usurped by a physician whose principal duty is to his patient and who does not have the full benefit of all of the evidence presented in a courtroom. Dr. Stratford candidly admitted that psychiatrists are not particularly good at detecting malingered psychosis. (Stratford Dep. 1 at 18.) Dr. Faust agreed and testified regarding a study involving normal individuals who feigned hallucinations and were admitted to mental hospitals. “They were given a lot of medication and not a single one of these pseudo patients was detected by the professional staff.” (Tr. at 503.) The courtroom has historically been, and should still be, the anvil for determining whether a witness is or was lying. After factoring out Dr. Rogers’ testimony, I am still persuaded that claimant is malingering. While my conclusion is not as firm as it was with Dr. Rogers’ testimony, there is still an accumulation of other persuasive evidence which, in my judgment, makes it more probable than not that claimant is not suffering from a work-related, disabling mental disease, and I have no hesitation in reaching that conclusion once again. The shortcomings in Dr. Stratford’s opinions still remain. My perception of claimant as untruthful still remains. I have no doubt that had I never heard Dr. Rogers’ testimony I would have reached the same result. Original Introduction The petitioner, EBI/Orion Group (EBI/Orion), 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. Nature of Issue 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. Trial 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 17 through 24 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.”) Dr. Rogers’ deposition has not been considered in reaching the findings that follow. Witnesses: The following individuals testified at trial: Michael S. Blythe, William Stratford, M.D., David Faust, Ph.D., Meridee Lieberg, Kayln Ward, Gail Hay, William R. Goodrich, Richard Rogers, Ph.D., Ron Simpson, William Triggs, Katherine Spealman and Herman A. Walters, Ph.D. Dr. Rogers’ testimony has not been considered in reaching the findings that follow. 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: FINDINGS OF FACT The Claimant 1. At the time of trial, claimant was 46 years old. (Ex. 1.) He has been married and divorced twice. (Tr. at 167.) 2. Claimant 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. (Id. at 104, 124.) He claims to have a library of 50,000 books. (Id. at 136.) He testified that he has six college degrees and is only a few credits short of two additional degrees. (Id. at 66.) He is a perpetual student. (Id. at 69-70.) 3. Claimant’s 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. (Id. at 2-3.) In June 1989 the University of Montana conferred upon him a bachelor’s degree with a major in psychology. (Id. 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 at 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. It is remote in time and there is no similar evidence for the nearly 20 years that followed. Employment by Community Medical Center 6. Claimant was employed as a respiratory therapist at Community from 1979 through March 19, 1991. (Ex. 14 at 12, 162.) The Industrial Incident 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.) Claim for Compensation 8. At the time of the incident, 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. Other Lawsuits 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. Physical Consequences of the Injury 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. Claimant’s Allegations Concerning Psychological Consequences of the Injury 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 at 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, including Dr. Richard Rogers. Dr. Rogers’ testimony has been disregarded upon remand. The other experts who testified and whose testimony is considered are:
Claimant’s Evidence 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.
19. On October 2, 1989, claimant saw Dr. Stratford. He told Dr. Stratford that three and a half years previous he 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 at 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 at 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." (Id. at 189, emphasis added.) 20. Dr. Stratford immediately took claimant off work "for at least 6 weeks." (Ex. 14 at 78.) 21. On October 5, 1989, claimant called Biggins to tell him of Dr. Stratford's advice. In his diary claimant wrote:
(Ex. 17 at 87.) 22. Dr. Stratford sent claimant to Sarah Baxter, Ph.D., for psychological testing, which occurred on October 25, 1989. (Ex. 2 at 39-41.) 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 at 81-154.) 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. (Id. at 315.) 24. At the time of trial, Dr. Stratford had prescribed Lithium, Zoloft and Tranxene. (Id. 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 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 at 81-154; Stratford Dep. I; 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 him 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 at 151-59.) During the encounter claimant became angry. He described his reaction as follows:
(Ex. 14 at 157-58.) 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 at 158 and 17 at 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 at 151-59.) 29. Claimant never thereafter returned to work and claims that he is permanently totally disabled from doing so on account of mental illness. 30. Eyewitness evidence concerning claimant’s behavior before and after the needle stick was conflicting:
31. Kayln 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 worked on the shift following claimant’s shift but talked to claimant at each shift change. (Id. at 6.) Their discussions 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." (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. (Id. 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 at 63.) He had no opinion concerning claimant's condition at the time of trial and conceded that claimant could be malingering. Malingering -- Expert Evidence 37. Dr. Stratford defined malingering as the "conscious fabrication of symptoms . . . [for] secondary gain." (Tr. at 401.) 38. Dr. Stratford administered a number of tests on claimant.
39. 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.) 40. The F scales on both of claimant’s 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 179-84, 225.) He characterized the F scale for claimant’s MMPI-2 as "off the charts." (Id. at 182.) 41. 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, malingering, 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 801-802.) 42. 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.) 43. 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. (Stratford Dep. 1 at 48.) His statements are further evidence of the conclusion, reached in later findings, that the claimant is not credible or truthful. 44. 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). 45. Dr. Stratford agreed that claimant was "lying through his teeth" in his responses to the SIRS test administered on October 5, 1994. (Id. at 37.) However, he questioned its validity when applied to psychiatric patients. 46. 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." (Tr. at 183.) Dr. Walters’ notes recorded the conversation as "B.S. or crazy." (Id. at 814.) 47. Dr. Walters 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. 48. 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. 49. Dr. Stratford testified that some of claimant's symptoms are atypical. Dr. Faust agreed and added to Dr. Stratford’s list of atypical symptoms. The atypical symptoms are set forth below:
50. Dr. Stratford at one point characterized claimant's visual hallucinations as "remarkably bizarre." (Stratford Dep. I at 70; Ex. 2 at 84-85.) 51. Claimant’s purported hallucinations were not limited to visual and auditory hallucinations. Additionally, he claimed he had gustatory (taste) and olfactory (smell) hallucinations. Dr. Faust characterized the variety of hallucinations as "quite unusual." (Tr. at 510-11.) “So when you combine — the combining of all those things together and having all those, it would be my belief that that’s rather unusual. It’s quite unusual.” (Id. at 510.) 52. Dr. Faust testified that, in his opinion, claimant is malingering a mental disorder. (Id. at 495-96.) He noted that this is the first case in which he has expressed such opinion and commented that he had “never seen a case in which the evidence [of malingering] seemed so overwhelming” as in this case. (Id. at 497.) 53. Dr. Faust based his opinion on three factors. (Id. at 497.) Those factors are (1) the atypical symptoms presented by claimant; (2) the inconsistencies and implausibilities in claimant’s statements; and (3) “the objective measures, such as the MMPI.” (Id. at 498.) In reviewing claimant’s prior statements he noted a “minimum 50 plus blatant inconsistencies or strong inconsistencies” and provided several examples. (Id. at 512-15.) He testified extensively regarding the MMPI, MMPI-2, and SIRS, providing detailed, persuasive analysis showing that claimant falsified his answers on those tests. Regarding claimant’s assertion that he had answered the MMPI randomly, he noted that the statistical probability of getting the score claimant achieved by random answers is “one in less than 15 million.” (Id. at 538.) Secondary Gain and Claimant's Credibility 54. 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. 55. Immediately following the needle stick incident, claimant began recording information concerning the allegedly defective blood gas kit, Community’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). 56. 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 at 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 (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.) 57. 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.) 58. 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.) 59. 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.) 60. 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 at 26, emphasis added.) According to claimant, Dr. Ammons is a psychologist who teaches at the University of Montana. (Tr. at 395.) 61. On March 23, 1989, less than two months after the incident, claimant referred in his diary to Jerry Spence (Spence) and Melvin Belli (Belli), two well known tort lawyers. (Id. 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 at 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. 62. 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.) 63. 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.) 64. 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 59.) 65. 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.) 66. 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 at 15.) He specifically mentioned a lawsuit in a personal context:
(Id. at 16.) 67. 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.) 68. Notes taken on November 7, 1989, further reflect claimant’s preoccupation with launching a lawsuit.
69. 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 at 72, emphasis added.) Dr. Hoell further reported:
(Id. at 73.) 70. Lieberg testified, “[claimant] told me he was going to file a lawsuit against the company that supplied the syringes for the hospital and if I testified in his favor and he won the case, he was going to send me on an expense-paid trip to the Bahamas or the islands.” (Tr. at 447.) Lieberg was a credible witness and I find that the conversation in fact took place. 71. On April 24, 1991, claimant recorded the following in his diary: “Dr. Stratford calls my attention to the fact that once he tells Travelers I'm psychotic, it’s in the grid, more damages I should be able to get.” [Emphasis added.] (Id. at 164-65; Ex. 17 at 275.) 72. 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. Further Facts 73. 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 Mr. Whiston at least as early as January 1990, as Dr. Stratford wrote a letter to Mr. Whiston on January 30, 1990. (Ex. 2 at 185.) Matters apparently then foundered until December 1990 or January 1991, when claimant sought representation from Thomas Frizzel. (Ex. 17 at 217, 247-50.) Mr. 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 at 275.) 74. 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 at 110-11 and 163-65.) 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 actively seeking an attorney to represent him in the lawsuit against Radiometer and Community. 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. 75. 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 at 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.) 76. Claimant has made conflicting statements regarding significant facts:
(Tr. at 68.)
(Id. at 136.) Claimant was then confronted with the fact that he had listed his books as valued at $115 in a May 1995 bankruptcy filing. He replied:
Resolution 77. 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 lifestyle and behavior patterns to support such fabrication. 78. Claimant was not a credible witness and has not been truthful. 79. 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. 80. 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). 81. The timing of the apparent onset of claimant's alleged hallucinations is in itself troublesome.
82. 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. Faust testified that studies show that clinicians are very poor at detecting “face-to-face lies.” (Tr. at 501.) 83. Dr. Stratford agreed that it is possible that claimant is in fact malingering (id. at 303, 406), although in his opinion he is not. 84. 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 that all of the objective testing showed that claimant “exaggerated, distorted, and over reported all of his symptoms.” (Stratford Dep. I at 40, 51.) 85. 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. 86. Claimant's evidence explaining his test scores was unpersuasive.
(Tr. at 80-82.)
(Id. at 83-84.)
87. To diagnose malingering, Dr. Stratford said he would focus on four factors: I would look for overt secondary gain, first of all; why now? Secondly, what is the long-term clinical history? Thirdly, what is the nature and quality of their symptoms and how consistent are they with a diagnosis of psychosis? Fourth, is there any collateral support for that at all?
(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.) 88. 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 was not. (Id.) Dr. Stratford also relied initially on written reports of collateral contacts which were prepared and submitted by claimant himself. (Ex. 2 at 172-80.) 89. 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. 90. 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. 91. On the other hand, I was impressed and persuaded by the testimony of Dr. Faust. Dr. Faust has studied malingered mental illness and has published articles on the subject. He provided three cogent reasons for his opinion that claimant is malingering. (Finding 54.) His reasons were exhaustively supported and logical. 92. Numerous facts support a conclusion that claimant is malingering and untruthful concerning his mental state. The number and nature of the atypical features of claimant’s alleged mental disorder were extraordinary. 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. 93. 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 incident. 94. I find that claimant is able to work as a respiratory therapist and that his case for disability was fabricated. CONCLUSIONS OF LAW 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 incident. 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 incident. 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. JUDGMENT 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 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 pursuant to ARM 24.5.348. 4. Any party to this dispute may have 20 days in which to request an amendment or reconsideration of this decision. DATED in Helena, Montana, this 20th day of June, 1997. (SEAL)
c: Mr. Charles E. McNeil |
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