Submitted: September 5, 1995
FINDINGS OF FACT, CONCLUSIONS OF LAW AND
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.
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.
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
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.
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.
case came on for trial in Missoula on July 10, 1995. The
trial lasted three days. The trial transcript spans 857
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 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.
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."
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.
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.
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:
Claimant is 46 years old. (Ex. 1.) He has been married and
divorced twice. (Tr. at 167.)
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.)
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.)
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.)
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
By Community Medical Center
Claimant was employed as a respiratory therapist at Community
from 1979 through March 19, 1991. (Ex. 14 at 12, 162.)
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.)
the time of the accident, Community Medical Center was
insured by EBI/Orion.
Claimant filed a claim for compensation. (Ex. 1.)
EBI/Orion accepted liability for the claim.
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
Consequences Of The Injury
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.
Allegations Concerning Psychological Consequences Of The
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
issue squarely presented to the Court for decision in this
case is whether his symptoms and disability are real or
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
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.
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.
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.
Claimant claims, and testified, that shortly after the needle
stick he began experiencing "sleep disturbances"
and "panic attacks," then later on depression, and
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."
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.)
Stratford immediately took claimant off work "for at
least 6 weeks." (Ex. 14-78.)
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.
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.)
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.)
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.
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.
(8) Pops, clicks and snaps but no voices. (4/27/92) (Ex.
(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.
(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.
(3) Occasional visual disturbances which were undefined.
(8/3/92) (Ex. 2 at 106.)
(4) Molecules strung together and cells. (8/29/94) (Ex.
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
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
(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
(7) A "waxy flexibility" which is characteristic of
catatonia. (Id. at 673.)
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.)
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
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.)
Claimant never thereafter returned to work and claims that he
is permanently totally disabled from doing so on account of
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