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1998 MTWCC 90
WCC No. 9708-7814
KATHY M. FITCH,
LIBERTY MUTUAL FIRE INSURANCE COMPANY,
J.C. PENNEY, INCORPORATED,
Summary: 41-year-old stockroom merchandise handler for J.C. Penney was struck in the head by a box while helping unload a truck. She was subsequently diagnosed by various physicians as suffering from post-concussion syndrome, cervical strain, depression, temporalmandibular joint syndrome (TMJ), and carpal tunnel syndrome. Although she did not return to work at J.C. Penney, she worked for short periods post-injury as a housekeeper and receptionist. She claimed permanent total disability, claiming severe headaches, eye pain, neck pain, arm and right hand pain, and carpal tunnel syndrome.
Held: Claimant is not PTD. Although some physicians rendered diagnoses or gave opinions supporting claimant's allegations of disability, those diagnoses and opinions were based upon claimant's subjective reports of pain and disability, which the Court found incredible. A licensed psychologist's testimony that claimant suffered from dementia due to traumatic brain injury and a neurocognitive injury was discredited through cross-examination indicating he failed to properly administer or interpret tests and through the more persuasive testimony of a neuropschologist with far more impressive credentials. Video surveillance taken on 14 days over a 24 day period showed claimant engaged in activities inconsistent with her subjective reports, leading panel physicians to testify her presentation during examination and during videotaped deposition was inconsistent with that portrayed on surveillance video. The Court's own review of video fortified its conclusion that claimant deliberately exaggerated her symptoms.
¶1 The trial in this matter was held on February 20, 1998, in Bozeman, Montana, February 23, 1998, in Helena, Montana and April 17, 1998, in Missoula, Montana. Petitioner, Kathy M. Fitch (claimant), was present and represented by Mr. H. Charles Stahmer. Respondent, Liberty Mutual Fire Insurance Company (Liberty), was represented by Mr. Larry W. Jones.
¶2 Transcripts of the trial have been prepared and filed with the Court. Transcript citations in this decision are limited to quoted material and to facts critical to the Court's decision.
¶3 Exhibits: Exhibits 1 through 32, 34, 36, 47 through 51 and 53 through 56 were admitted. Exhibits 33, 35, 37 through 41, 43 and 44 were withdrawn. Exhibit 46 was admitted over the objection of Mr. Stahmer. Exhibit 52 was admitted as a demonstrative exhibit. Videotape surveillance of claimant was also admitted as Exhibits 42 and 45.
¶4 Witnesses and Depositions: Kathy Fitch, Lisa Waddell, Annie L. Castillo, M.D., James C. Deming, Ed.D., Karen Black, Allen R. Severson, Vickie Wyant, Michael Layman, M.D., Brenda Herbst, Tommy Fitch, Ethan B. Russo, M.D., Robert Velin, Ph.d., Mark Fullerton, Martin Cheatle, Ph.D., and Dana Headapohl, M.D., were sworn and testified. In addition the Court received the depositions of Kathy Fitch (two depositions), Martin D. Cheatle, Ph.D., Kay Walstrom, Marion Bailey, Judy McCubbin, James C. Deming, Ed.D (two depositions), Ethan B. Russo, M.D., Herbert E. Prussack, M.D., Dana M. Headapohl, M.D., Karen Black, James L. Booth, D.D.S., Annie Castillo, M.D., John Campbell, M.D., Allen Severson, Lynne Sinnema, Leona Steenson, George Schramm, and Patricia A. LaHaie, M.D.
¶5 Issues Presented: As set forth in the Final Pre-Trial Order, the issues presented in this case are:
¶6 Having considered the final pre-trial order, the testimony presented at trial, the demeanor and credibility of the witnesses, the depositions and exhibits, and the arguments of the parties, the Court makes the following:FINDINGS OF FACT
¶7 Claimant is presently 41 years old. She is married to Tommy Fitch.
¶8 Claimant was injured on June 20, 1994, while working for J.C. Penney, Incorporated, in Bozeman, Montana. She was helping unload a truck when she was struck in the head by a box. According to claimant, she saw spots and heard someone say, "You hit her with the box." (2/20/98 Tr. at 233.) The size and weight of the box which struck claimant is unknown.
¶9 At the time of her injury, claimant had worked for J.C. Penney for approximately two and a half years as a stockroom merchandise handler.
¶10 J.C. Penney was insured by Liberty, which accepted liability for the claim.
¶11 The parties agree that claimant has reached maximum healing and no further findings are required on that matter. (Uncontested Fact 3.)
¶12 Liberty paid claimant temporary total disability benefits from July 22, 1994 through September 23, 1994. (Uncontested Fact 5.) It also paid permanent partial disability benefits from March 31, 1997 through November 16, 1997. (Id.) Those benefits were paid under a reservation of rights (id.), however, the insurer is not seeking to recover its payments.
¶13 Following her 1994 injury, claimant never returned to work for J.C. Penney. She did, however, work for short periods of time doing housekeeping type work. Between June and October 1997, she worked part time (two to four hours a day) for Ponderosa Homes. Over an eight-week period, she also worked for King Arthur Park cleaning a clubhouse and laundry area once a week, and also as a receptionist for a short time. Finally, she worked at Oakland Homes, doing part-time cleaning of manufactured homes for approximately two or three months. Her work for King Arthur Park and Oakland Homes was prior to June 1995.
¶14 On August 18, 1997, claimant filed her petition for hearing, asserting that she is unable to work and is permanently totally disabled.
¶15 Claimant testified, and she has told medical practitioners, employers, and friends, that she suffers from persistent, debilitating headaches, neck and back pain, loss of memory, and dizziness. She has also reported pain in both arms.
¶16 In addition to her own testimony that she is unable to work, claimant presented testimony and medical records of several physicians and a psychologist who have treated her. She also presented the opinions of a vocational consultant.
¶17 Claimant was initially treated for her injury by Dr. Curt G. Kurtz; however, the parties did not provide the Court with either Dr. Kurtz's records or his testimony.
¶18 Dr. Annie L. Castillo, an internist, assumed care of claimant on July 15, 1994, approximately three and a half weeks after her injury. Dr. Castillo examined claimant ten times between and including July 15, 1994 and June 1995. The doctor did not thereafter see claimant until February 18, 1998, two days prior to trial, at which time claimant saw Dr. Castillo to "reestablish care."(1) (Ex. 1C at 44.) During her 1994 treatment of claimant, Dr. Castillo diagnosed claimant as suffering from post-concussion syndrome, cervical strain, depression, and possible carpal tunnel syndrome (CTS). She referred claimant to Dr. Herbert E. Prussack, a neurologist,(2) for further evaluation. (Castillo Trial Test. and Ex. 1C.)
¶19 Based on claimant's report of headaches, sleep disorder, fatigue, and other subjective symptoms, Dr. Castillo testified at trial that claimant has chronic post-concussion syndrome which renders her unable to work a regular eight hour, five day week. (2/20/98 Tr. at 66-67.) Dr. Castillo conceded that it is possible that claimant is falsifying her symptoms. (Id. at 66.) She agreed that her diagnoses of post-concussion syndrome and depression are based entirely on claimant's reports of her subjective symptoms of headaches, sleep disturbance, and fatigue. (Id. at 71.)
¶20 Dr. Prussack initially examined claimant on September 13, 1994, at which time the claimant complained of headaches, dizziness, and neck pain. Dr. Prussack saw claimant approximately 15 times. Two days prior to his deposition, after not having seen claimant for almost a year (Ex. 1A at 3), claimant contacted Dr. Prussack to complain of a severe headache of two to three day duration "associated with a feeling of numbness on the left side of her body in her face and in her arm primarily."(3) (Prussack Dep. at 6.)
¶21 During his treatment of claimant, Dr. Prussack diagnosed claimant as suffering from post-concussion syndrome, depression, cervical strain, CTS, and temporalmandibular joint syndrome (TMJ). All of Dr. Prussack's diagnoses, with the exception of cervical strain, were based on claimant's subjective reports. (Prussack Dep. at 13, 17, 18, 25, 27, 42, 46.) The post-concussion syndrome diagnosis was based on claimant's subjective reports of persistent headaches, dizziness, sleep disturbance, cognitive dysfunction, and depression. (Id. at 18, 42.) The CTS diagnosis was based on claimant's subjective complaints of tingling and numbness in her right hand and not on any objective medical tests. (Id. at 13, 20, 24, 26-27, 75). Dr. Prussack did not relate CTS to claimant's industrial accident or any other specific event. Similarly, his TMJ diagnosis was based entirely on claimant's subjective complaints of difficulty chewing and an inability to completely open her mouth; it was not verified by x-rays. (Id. at 13.) He did find muscle tightness in claimant's neck but there was no MRI or other objective evidence of cervical injury. (Id. at 31, 45.)
¶22 On June 10, 1995, claimant was involved in an automobile accident. She was seen at the emergency room of Bozeman Deaconess Hospital. (2/20/98 Tr. at 243-44.) Dr. Prussack provided follow-up care and testified that claimant suffered an increase in the severity and frequency of her headaches, but that the headaches were present and significant prior to the accident and that she was already suffering from chronic post-concussion syndrome. (Prussack Dep. at 33-34, 82.)
¶23 For purposes of this Decision, the Court has not considered whether the 1995 auto accident materially aggravated claimant's preexisting condition, thus relieving the insurer of liability for the 1994 industrial accident.(4) The insurer has not tendered such a defense in its contentions in the final pre-trial order; in any event, this case is decided on unrelated grounds.
¶24 I have also not considered claimant's alleged CTS. The claimant alleges on page 2 of her petition for hearing that she "is also suffering from an occupational disease, carpal tunnel syndrome, which causes her pain and discomfort and further limits her physical ability." While Dr. Campbell, an orthopedic surgeon, provided testimony indicating that claimant may in fact suffer from CTS which prevents her from holding a job involving "repetitive motion work," (Campbell Dep. at 55), the Workers' Compensation Court does not have original jurisdiction involving disputed liability in occupational disease claims. See § 39-72-202, MCA. Claimant has presented no evidence that she filed an occupational disease claim for CTS or that the insurer has admitted liability for such a claim. She presented no evidence that her alleged CTS was aggravated by her industrial accident. While presenting some evidence that CTS may have begun prior to her industrial accident, the severity of the condition is predicated on her reports of her symptoms, and the Court finds her reports incredible.
¶25 Dr. Prussack opined that as a result of her post-concussion syndrome and chronic pain, the claimant is unable to hold regular employment. (Prussack Dep. at 85-87; Ex. 1A at 2.)
¶26 Dr. Layman examined claimant in the emergency room following her June 1995 auto accident. (2/20/98 Tr. at 244.) It was the only time he saw her. (Id. at 250.) However, he also testified as an expert witness concerning the claimant's industrial accident.
¶27 Dr. Layman testified that however small and insubstantial was the box which hit claimant on June 20, 1994, it may have caused post-concussion syndrome. (Id. at 251-52.) He reviewed the medical records of Drs. Prussack and Booth, the records of the Missoula Medical Panel, and the depositions of Drs. Campbell, Castillo, and Booth. (Id. at 249-51.) He opined that claimant is suffering from post-concussion syndrome due to a combination of the 1994 industrial accident and the 1995 motor vehicle accident. (Id. at 257-58.)
¶28 As with other physicians, Dr. Layman's diagnosis and opinions were based on claimant's subjective complaints and are therefore dependent on the veracity of her complaints.
¶29 At Dr. Prussack's recommendation, claimant was examined by Dr. James C. Deming, who is a licensed psychologist. Dr. Deming administered a battery of psychological and psychoneurological tests. He testified that claimant suffers from "dementia due to traumatic brain injury" and a "neurocognitive injury." (2/20/98 Tr. at 93, 109, see also 85.) I give no weight to his testimony. As demonstrated by cross-examination and by the testimony of Dr. Robert A. Velin, a neuropsychologist with far more impressive professional credentials than Dr. Deming, Dr. Deming failed to properly administer and interpret the tests upon which he based his opinions. Dr. Velin disputed Dr. Deming's opinions and conclusions. I found Dr. Velin to be the more qualified and persuasive witness.
¶30 Karen Black (Black), a vocational consultant, testified on behalf of claimant. Based on restrictions she believed were placed on claimant by Drs. Prussack, Deming, and Campbell, a TMJ diagnosis, and her understanding that claimant suffers from migraine headaches, myofascial pain in the cervical, thoracic, and lumbar area, Black testified that claimant could not perform her old job at J.C. Penney, medium housekeeping type jobs such as she did for Ponderosa Homes and King Arthur Court, or sedentary receptionist duties, which she performed for a time for King Arthur Court. (2/20/98 Tr. at 184-89.) According to Black, claimant has no reasonable prospect of employment. (Id. at 190.)
¶31 The claimant, in her testimony, in her interaction with her friends, in her reports to physicians and Dr. Deming, and, to lesser extent, in her contacts with two employers portrayed herself as suffering frequent debilitating headaches, dizziness, neck pain, as having difficulty in chewing, an inability to completely open her mouth, difficulty with remembering, difficulty sleeping, tearfulness, right arm and hand pain, difficulty in concentrating, as being unable to use her arms in repetitive movements, as unable to carry out any sustained activity, and as able, with difficulty, to perform only minimal household chores at home.
¶32 At trial claimant sighed, laid her head on counsel table for much of the time, walked stiffly, and appeared to be in agony, at least until she testified. At a suppression hearing and on the first day of trial, the Court offered claimant a continuance because she presented herself as being in such great distress.
¶33 Liberty presented persuasive, overwhelming evidence that claimant is malingering and that she has deliberately exaggerated her symptoms to her physicians, employers, friends, and the Court.
¶34 As a part of its evidence, Liberty presented surreptitious video surveillance films of the claimant and videotapes of claimant's depositions. The surveillance videotapes were taken over a twenty-four-day period between September 23, 1997 and October 16, 1998. Actual videotaping occurred on fourteen days.
¶35 The surveillance tapes were shown to one of claimant's friends, to three physicians who had previously examined her as a part of an independent medical examination, and to this Court. The friend (Brenda Herbert) expressed surprise at the extent of claimant's activities. The observations of the physicians following their viewing is detailed below. The video depositions of claimant were also reviewed by the Court and by Drs. Headapohl, Russo, and Cheatle.
¶36 Drs. Dana Headapohl, Ethan Russo, and Martin Cheatle participated in a Missoula Medical Panel evaluation of claimant in 1995 and again in 1997.(5) Dr. Headapol is board certified in occupational medicine. Dr. Russo is a board certified neurologist. Martin Cheatle, Ph.D., is a psychologist who specializes in the treatment of pain.
¶37 The first panel examination was September 1995. After individually examining the claimant, the panel as a whole reported its conclusions on October 16, 1995, as follows:
(Ex. 56 at 1.) It determined that there is no objective data supporting a CTS diagnosis. It found claimant to be at maximum medical improvement and found no (0%) impairment. (Id. at 3.) Finally, the panel found that claimant can perform light and sedentary work. (Id. at 2.)
¶38 The second panel examination took place in Missoula on October 15, 1997. Claimant traveled from Bozeman to Missoula that day, arriving at St. Patrick's Hospital at approximately 12:35 p.m. (Videotape for October 15, 1997). She entered the hospital at 1:08 p.m. for examinations by Drs. Headapohl, Russo, and Cheatle. The examinations were completed and claimant exited the hospital at 4:50 p.m. (Id.)
¶39 Unbeknownst to claimant and the panel doctors, a private investigator videotaped claimant's arrival at an entry into the hospital, her exiting the hospital, her activities thereafter until 8:08 p.m., when she checked into a motel, and her activities between 9:39 a.m. and 11:17 a.m. the next day (October 16, 1997).
¶40 Without knowledge of the video surveillance of claimant, Drs. Headapohl, Russo, and Cheatle submitted written reports to Liberty. As a panel they reported:
¶41 In his individual report, Dr. Russo recorded that claimant was wearing a right wrist splint and complained of headaches, neck, back and arm pains, forgetfulness, lightheadedness, and decreased concentration. (Ex. 28 at 3.) He wrote:
¶42 In her report of her October 15th examination of claimant, Dr. Headapohl provided a detailed narrative of claimant's complaints:
(Ex. 27 at 3-4.) Claimant further reported that "her symptoms continued to worsen even after leaving Penney's [sic] and worsened considerably over the past few months." (Id. at 5.) Dr. Headapohl performed a physical examination of claimant and reviewed claimant's medical records. Based on the history provided by claimant, the physical examination, and the review of medical records, Dr. Headapohl provided her impressions as follows:
(Id. at 17.) Finally, she observed, "The biomechanic and mechanism of the injury are not consistent with her current reported symptoms." (Id.)
¶43 Dr. Cheatle did not provide a separate report of his October 15, 1997 examination of claimant but signed the panel report found at Exhibit 47.
¶44 At trial, each of the doctors testified that the manner in which the claimant presented herself during their October 15,1997 examinations was strikingly different than what they observed of claimant on the videotapes.
¶45 After reviewing the videotapes, Dr. Russo made the following observation in a note of November 17, 1997:
(Ex. 28 at 1, emphasis added.)
¶46 Dr. Russo testified that claimant presented herself on October 15th in a similar manner to what is shown in her videotaped deposition of October 7, 1997. (2/23/98 Tr. at 121.) In testifying, Dr. Russo noted the following discrepancies between what he observed of claimant during his October 15th examination and what he observed on the videotapes:
(Id. at 130-31.)
¶47 Dr. Headapohl reviewed the video surveillance and made copious notes of her review. (Ex. 27 at 19-36, 38-55.) The review altered her medical opinions.
¶48 As did Dr. Russo, Dr. Headapohl testified that claimant's presentation on October 15th was similar to what she observed of claimant in her videotaped deposition of October 7th. (4/17/98 Tr. at 107.)
¶49 Dr. Headapohl vividly contrasted claimant's behavior during her October 15th examination with what she observed on the video surveillance tapes. Viewing the October 15th videotape made of claimant after the IME was completed, Dr. Headapohl testified:
(Id. at 110-11.) Dr. Headapohl further testified that videotapes of claimant eating on October 15th and October 2nd were inconsistent with claimant's presentation of her TMJ limitations during the October 15th examination. (Id. at 111-15.)
¶50 Dr. Headapohl viewed the September 23rd videotape of claimant washing and cleaning the pickup. She characterized claimant's physical activities on that date as "[e]xtremely inconsistent, 180 degrees inconsistent" from her presentation during the 1995 and 1997 examinations. (Id. at 116.)
¶51 Based on a comparison of the videotapes with the history taken and observations made during her 1995 and 1997 examinations of claimant, Dr. Headapohl concluded that claimant is malingering. She testified:
(Id. at 119.)
¶52 Dr. Cheatle was more charitable than Dr. Headapohl in that he was more reluctant to judge the reasons for the discrepancies he observed regarding claimant's behavior. In a November 20, 1997 letter he wrote:
(Ex. 32 at 3-4.)
¶53 As did Drs. Headapohl and Russo, Dr. Cheatle characterized the manner in which claimant presented herself during her October 7th deposition as inconsistent with the manner in which she presented herself during his October 15th examination of her.
¶54 Reviewing the September 23rd truck washing videotape, Dr. Cheatle found claimant's activities at odds with her behavior during his 1995 and 1997 examinations of her. In discussing his observations of claimant during his examinations of her, Dr. Cheatle testified that claimant demonstrated "very slow motion, a fair amount of guarding behavior . . . ." (4/17/98 Tr. at 21.) Comparing his examinations with the videotape, he said:
(Id.) He characterized the differences in what he observed in his examinations and the video as "significant." (Id. at 21-22.)
¶55 The Court has viewed the videotapes of the insurer's surveillance of claimant. I have compared what I observed on the tapes with what I observed of claimant during trial and during a one day suppression hearing held October 30, 1997. I cannot reconcile the physical abilities demonstrated by claimant on the surveillance tapes with her behavior in Court. Additionally, when subjected to cross-examination and asked to demonstrate the industrial accident, claimant moved fluidly and unhesitatingly in her demonstration, which was in sharp contrast to her stiff, guarded movements when not testifying.
¶56 On October 22, 1997, claimant's attorney filed a motion for protective order requesting, among other things, that any video surveillance be suppressed. Because of the serious allegations set forth in the motion,(8) the Court scheduled a hearing on the motion for October 30, 1997. (order setting hearing (October 24, 1997).) On October 24, 1997, during a second deposition, counsel for Liberty showed the claimant the October 7th video surveillance, including claimant's entry into and exit from Labor Contractor Services.
¶57 Lisa Waddell, who is employed by L.C. Staffing Service (formally Labor Contractors Services) testified that on October 7, 1997, claimant came into the payroll service office, brought cashiers checks and discussed business without any apparent physical problems. (2/20/98 Tr. at 19-20.) On October 28th, two days prior to the October 30th hearing, claimant telephoned Lisa Waddell and told her that "she often got headaches and when dealing with numbers and et cetera, sometimes got confused and that sometimes it just was hard to go through with working through the numbers, et cetera." (Id. at 20.) That was the first time Waddell had been informed of claimant's alleged problems.
¶58 The first day of trial in this matter was held on February 20, 1998. Claimant made two significant contacts during the preceding two days.
¶59 On February 18, 1998, she had an appointment with and was seen by Dr. Castillo. (Id. at 60.) She complained of headaches and depression. (Id.) The last time Dr. Castillo had seen claimant was in June of 1995, more than two and a half years previous. (Id. at 61.) Dr. Castillo noted the purpose of the visit: "She is here to reestablish medical care." (Ex. 1C at 44, emphasis added.)
¶60 The February 18, 1998 visit might be explained by the fact that Dr. Castillo was scheduled to testify at trial and needed an update on claimant's condition. If an isolated incident, the Court would assume as much. However, claimant's return to Dr. Castillo was not an isolated event and it occurred after Dr. Castillo's deposition had been taken and a mere two days prior to trial. Moreover, Dr. Castillo's note indicates that claimant's purpose in the visit was to "reestablish medical care." (Id.)
¶61 On February 19, 1998, the day prior to the commencement of trial, claimant was seen by Dr. Deming, a licensed psychologist, on an emergency visit. His testimony describes the circumstances of the contact:
(2/20/98 Tr. at 172-76.)
¶62 After not seeing Dr. Campbell for more than a year, the day prior to her October 7, 1997 deposition the claimant returned to the doctor complaining of a "worsening" of her symptoms and "having a fair amount of night pain and problems." (Ex. 1B at 1.) Dr. Campbell prescribed a splint. Prior to her deposition on October 7th, claimant or her counsel informed counsel for Liberty that she usually wore a splint. (October 7, 1997 Fitch Dep. at 6.)
¶63 On the afternoon of November 17, 1997, claimant called Dr. Prussack and complained of a severe headache of two to three day duration "associated with a feeling of numbness on the left side of her body in her face and in her arm primarily." (Prussack Dep. at 6.) Dr. Prussack viewed her symptoms with alarm and told her to go to the emergency room. (Id.) Concerned for claimant's welfare, Dr. Prussack contacted the emergency room later that afternoon to alert it that claimant would be coming into the ER. (Id. at 7.) Later that evening, he attempted to call claimant at home but obtained her answering machine. (Id.) He followed up by calling the ER again, only to discover that claimant had not arrived. (Id.) On the morning of the next day, November 18th, he contacted claimant's attorney for help in contacting claimant. (Id.) At lunchtime, he learned that claimant had just shown up at the ER. (Id. at 8.) After lunch he stopped by the ER, was told that claimant was suffering from migraine and had responded to an injection. (Id.) He stopped to see claimant and reassured her. (Id.)
¶64 Dr. Prussack was deposed on November 20, 1997, three days after claimant's emergency call to him. His deposition was noticed on November 10, 1997, (notice of deposition (November 10, 1997)), prior to the events described in the previous paragraph.
¶65 Another of claimant's contacts with Dr. Prussack provides further evidence of a deliberate attempt to influence testimony in conjunction with this proceeding. Prior to the filing of this case, Dr. Prussack last saw claimant on December 10, 1996. (Ex. 1A at 3.) On August 8, 1997, ten days prior to her filing her petition for hearing with this Court, claimant called Dr. Prussack. His office note concerning the call states:
(Ex. 1A at 1.) Claimant did not call back for an appointment; her next contact with Dr. Prussack was November 17, 1997, as described previously.
¶66 My own review of the video surveillance and claimant's video depositions fortifies my conclusion that claimant has and is deliberately exaggerating her symptoms.
¶67 The September 23rd videotape shows claimant washing and cleaning a pickup truck over an approximately two-hour period. She does so with no obvious physical restrictions or pain. Her work on the truck is inconsistent with her reported limitations.
¶68 Claimant has attempted to explain away the September 23rd videotape by testifying that she has good and bad days. That sort of evidence is difficult to evaluate. However, it must be viewed in the context of what the Court observed of claimant at trial and the physical limitations the claimant has asserted in her testimony and in her reports to her physicians and friends. In that context, it is difficult if not impossible for the Court to square what the Court observed on the videotape with claimant's presentation at trial, which the Court can only characterize as histrionic, and with what she reported and portrayed to others.
¶69 Even more telling is the claimant's husband's explanation for her cleaning the pickup. According to claimant's husband, Tommy Fitch (Tommy), claimant was forced to wash the truck because they had to travel to a funeral for Tommy's grandmother (10/30/97 Tr. at 16), and Tommy was too ill to take the truck to the car wash. He said he was so sick that when he and claimant left the next day for the funeral she had to drive. (2/23/98 Tr. at 62-63, 66.) According to Tommy, he was "crazy sick" at the time claimant washed and cleaned the family pickup. (Id. at 62-63.)
¶70 Tommy operates a business moving and setting up mobile homes. To move mobile homes, he uses a "toter" truck which is designed for that purpose. According to Tommy, he is the only person who drives the toter. (Id. at 67.) When asked if anyone else has driven his toter he replied, "The fall is the only time I've ever had anybody else drive my truck." (Id. at 67.) He testified that the singular occasion was in November and that the driver was a trusted employee. (Id. at 67-68.)
¶71 Tommy was then shown a videotape taken on September 23rd showing the toter being driven from his and claimant's residence. (Id. at 70.) Tommy denied being the driver, then suggested that his son may have been the driver even though he was not supposed to drive it:
(Id. at 70-71.) Tommy's testimony was incredible. I do not believe that claimant washed the truck because he was sick or that he was in fact sick.
¶72 I find that claimant has and is deliberately exaggerating her symptoms. I am unpersuaded she is unable to return to her job at J.C. Penney or other regular employment. In short, I find her reports of her symptoms wholly incredible.
¶73 Claimant was injured on June 20, 1994, and her entitlement to benefits is governed by the 1993 version of the WCA. Buckman v. Montana Deaconess Hospital, 224 Mont. 318, 321, 730 P.2d 380, 382 (1986).
¶74 Claimant alleges that she is permanently totally disabled. Permanent total disability benefits are governed by section 39-71-702, MCA (1993), which provides in relevant part:
¶75 Claimant bears the burden of proving that she is due PPD benefits. Ricks v. Teslow Consolidated, 162 Mont. 469, 512 P.2d 1304 (1973); Dumont v. Wicken Bros. Construction Co., 183 Mont. 190, 598 P.2d 1099 (1979).
¶76 The Workers' Compensation Act defines permanent total disability as follows:
§ 39-71-116, MCA (1993).
¶77 Claimant has failed to persuade the Court that she is permanently totally disabled. To the contrary, the evidence presented at trial persuades the Court that the claimant has deliberately and falsely exaggerated her headaches, her neck and back pain, her memory loss, her hand and arm pain, her depression, and virtually every other complaint she has reported to her physicians and the Court.
¶78 1. Claimant is not entitled to permanent total disability benefits.
¶79 2. Claimant is not entitled to attorney fees, a penalty or costs.
¶80 3. This JUDGMENT is certified as final for purposes of appeal pursuant to ARM 24.5.348.
¶81 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 17th day of December, 1998.
c: Mr. H. Charles Stahmer
1. As discussed later in this Decision, the Court finds claimant's return to Dr. Castillo after a two and a half year lapse more than coincidental.
2. Dr. Prussack is not board certified in neurology but is board eligible. (Prussack Dep. at 5.)
3. As discussed later in this Decision, the Court finds claimant's call to Dr. Prussack just prior to his deposition more than coincidental. It was part of a pattern indicating her deliberate attempt to influence the medical opinions given in this case.
4. To relieve the insurer of liability the insurer would have to prove that the claimant had reached maximum medical improvement prior to the accident and that the accident materially aggravated claimant's preexisting conditions.
5. Two additional doctors served on the 1995 panel, Dr. Timothy Browne, an orthopaedist, and Dr. Eric Hughson, an internist.
7. Anhedonia is the "total loss of feeling of pleasure in acts that normally give pleasure." Dorland's Illustrated Medical Dictionary, 27th ed.
8. After hearing the Court found the allegations unfounded. (court memorandum concerning motion for protective order (December 30, 1997).)
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