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EBI/Orion Group v. Blythe

Court of Workers Compensation of Montana

February 8, 1996

EBI/ORION GROUP (Connecticut Indemnity) Petitioner
v.
MICHAEL S. BLYTHE Respondent/Claimant.

          Submitted: September 5, 1995

          FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT

          MIKE MCCARTER JUDGE.

         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.

         Introduction

         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.

         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 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:

         FINDINGS OF FACT

         The Claimant

         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.

         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 Accident

         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 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.

         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. 17-17 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:

a. Dr. William Stratford, who treated claimant for his alleged mental illness, is a well known and respected Montana psychiatrist. He has done a multitude of forensic examinations and, from the Court's own knowledge, has testified in numerous court proceedings. Based on the office notes kept on Mr. Blythe, he is also a poor record keeper, a fact which resulted in his inability to recall many specifics of the case and which complicates my evaluation of his testimony.
b. Sarah Baxter, Ph.D. is a clinical psychologist practicing in Missoula. At Dr. Stratford's request, she performed psychological testing on claimant on October 25, 1989.
c. Herman Walters, Ph.D., is a respected Missoula psychologist who maintains a clinical practice and also teaches at the University of Montana. At Dr. Stratford's request, Dr. Walters interviewed and tested the claimant during the summer of 1992.
d. David Faust, Ph.D., is a professor of psychology at the University of Rhode Island. (Ex. 8 at 1-2.) He is a diplomate of the American Board of Assessment Psychology and has written or contributed to numerous articles and books. (Id. and Tr. at 483.) His publications include articles on malingering. (Tr. at 483.) Dr. Faust reviewed the results of claimant's psychological tests and other materials pertaining to the claimant. (Tr. at 488.) He did not personally examine the claimant, although he did observe claimant's trial testimony.
e. Richard Rogers, Ph.D., is a well-known and respected psychologist and an expert in malingering of mental illness. (Tr. at 220; Stratford Dep. II at 5-6, 20.) He is a professor of Psychology and the Director of Clinical Training at the University of North Texas. (Tr. at 660.) He is certified in forensic psychology by the American Board of Forensic Psychology. (Ex. 7-3.) In 1990 he received the Manfred S. Guttmacher Award from the American Psychiatric Association for his book Clinical Assessment of Malingering and Deception for outstanding contribution to forensic psychiatry and in 1992 he received an Amicus Award from the American Academy of Psychiatry and Law for distinguished contributions to the Academy and forensic psychiatry. (Ex. 7-2; Tr. at 662.) He has written more than 80 articles which have been published or accepted for publication. (Tr. at 661.) Dr. Rogers has performed numerous forensic examinations and has testified in approximately 60 cases, both civil and criminal. When asked about Dr. Rogers, Dr. Stratford said that Dr. Rogers is "one of the best people probably in the country . . . generally well thought of." (Stratford Dep. II at 5-6.) Stratford felt that an independent examination of claimant by Dr. Rogers was an "excellent idea." (Id. at 6.)

         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.

a. On February 1, 1989, three days after the incident, he recorded "sleep disturbances" in his diary. (Ex. 17 at 15.) On February 7, 1989, he recorded a "panic attack" and a pulse rate of 120. (Id. at 17.) Later in February, and thereafter in March, he consulted with a hospital psychologist concerning his "anxiety attacks." (Id. at 22, 26.) Interestingly, claimant's diary entries in February and March of 1989 reflect that he was taking a college class in the "psychology of stress." (Id. at 15-24.)
b. By June 1989, he was recording depression. (Id. at 52.) In August and September of 1989 his diary notes concerning depression increased. (Id. at 68, 75-76, 82.) On September 15, 1989, he recorded that he didn't know "who the person is who is looking out of my eyes" and further expressed the thought, "I don't care about anything any more not even my own life." (Id. at 81.)
c. On September 21, 1989, he recorded that he had been to see Dr. Cone, who was treating him for preexisting neck pain, and told Dr. Cone that he was having depression and "apparent manic episodes." (Id. at 83.)
d. On September 28, 1989, claimant mentioned hallucinations for the first time in his diary entries. (Ex. 17 at 85.) His entry refers to a conversation he had that day with Michael Biggins, his supervisor at Community. According to his diary entry, claimant told Biggins about some of the symptoms that i had been having, i.e., the manic episodes (i came into work last night overwhelmed c [with] anxiety for instance -- i told him i come to work like this quite often); Also, auditory hallucinations S/A music & people speaking in low tones.

(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:

[A]sk for an additional 2 wks so that i could see my parents at Thanksgiving. I requested to return the 1st wk in Dec. 1989. Michael agreed that this would be o.k.

(Ex. 17-87.)

         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.

a. At various times, he reported to Dr. Stratford of hearing:
(1) Easy listening music. (10/01/89) (Stratford Dep. I at 71; Ex. 2-84 to 2-85.)
(2) Whispering, synthesizer sounds, and religious voices. (4/10/91) (Stratford Dep. I at 89; Ex. 2-94.)
(3) Tone inflections, music, a train coming down the tracks, metallic grinding sounds, and a doorbell ringing. (5/13/91) (Stratford Dep. I at 91; Ex. 2-95.)
(4) Grinding metallic music changing to beautiful music. (12/4/91) (Stratford Dep. I at 95; Ex. 2-98.)
(5) "The voice of God saying that time is short." (12/5/91) (Ex. 2-39.)
(6) Voices like on the radio. (1/20/92) (Stratford Dep. I at 96; Ex. 2-99.)
(7) Synthesizer music. (3/16/92) (Stratford Dep. I at 97; Ex. 2-100.)
(8) Pops, clicks and snaps but no voices. (4/27/92) (Ex. 2-138.[1])
(9) Angelic voices, singing. (8/3/92) (Ex. 2-39.)
(10) Voices like a "pentecostal speaking in tongue," along with music. (8/31/92) (Ex. 2-141.)
(11) Ongoing "radio hallucinations." (9/28/92) (Ex. 2-141.)
(12) Cartoon sounds, pops, clicks, snaps, artillery, music, and some human voices. (12/7/92) (Ex. 2-143.)
(13) "[A] guy in my mind who talks to me." (9/21/93) (Ex. 2-148.)
(14) A ringing telephone. (10/18/93) (Ex. 2-149.)
b. Visually, claimant has reported seeing:
1) "Two abortions, fetuses, bone, skulls, pelvises." (Stratford Dep. I at 70.)
(2) Blotches of grey and sparkling visual flashes of two months duration. (4/10/91) (Stratford Dep. I at 89; Ex. 2-94.)
(3) Occasional visual disturbances which were undefined. (8/3/92) (Ex. 2 at 106.)
(4) Molecules strung together and cells. (8/29/94) (Ex. 2-128.)
c. On October 25, 1989, he reported to Dr. Baxter that his hallucinations included hearing "daily sorts of conversations," a variety of types of music, and phones. (Baxter Dep. at 20-21.) He also described seeing flashing lights. (Id. at 21.)
d. In his interview by Dr. Rogers, claimant reported the following hallucinations:
1) Walls, ceilings, and chairs moving in wave-like fashion. (Tr. at 670.)
(2) Harsh synthesizer music. (Id.)
(3) His postal mail "breathing." (Id. at 671.)
(4) Plants (ferns) moving in rhythmical fashion, sometimes moving to the song of "Sheba." (Id.)
(5) Cartoons, including "on one occasion Daffy Duck and Yosemite Sam." (Id.)
(6) Ideas planted in his head from outside. (Id. at 672-73.)
(7) A "waxy flexibility" which is characteristic of catatonia. (Id. at 673.)

         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:

[S]omething inside of me finally snapped. What then gushed forth at that moment was a number of vituperations and scatological appellations referring to the person of Michael Biggins. Concurrently there was an overwhelming anger which came over me and which now frightens me to think about. Suddenly some force grabbed me by the back of the neck inflicting great pain. I began to hear a high-pitched sound similar to the noise a table saw blade makes when it is cutting through a piece of high density wood such as oak or hickory. I heard this sound directly behind me rapidly coming closer to the back of my head. The closer the noise approached to me the greater the pain became in my neck until it felt as though the blade was cutting into the back of my head. At the same time I began to see flashes of light at the periphery of my vision in both eyes. As my anger was still excelerating [sic] I began to hear other sounds about the room like I was in a factory or a wood-shop with all the machines running. There were high-pitched whining sounds and low frequency grinding noises. They seemed to be all around me. At this point I began to feel light-headed and dizzy. Suddenly Biggins suggested that we should end this discussion to which I immediately agreed. . . .

(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:

a. Ron Simpson, who has known claimant since 1986, testified that before the needle stick claimant had been extremely active in school and socially active. (Tr. at 720.) After the needle stick he said that claimant was going through a grieving process; claimant told Simpson that he was not doing well. (Tr. at 723.) When he visited claimant's house six months prior to trial, Simpson noted that claimant's housekeeping had significantly deteriorated, as had his dress. (Tr. at 727-29.) Cross-examination, however, established that Simpson had his own set of problems which could affect his view of the matter. He had been terminated by Community for drug use. (Tr. at 733.) He worked with claimant for nine or ten months in 1986 and 1987. He had only seen claimant intermittently since he left Community in July 1987. (Tr. at 727-29, 736.) While he also attended the ...

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