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Ebi/Orion Group v. Blythe

Court of Workers Compensation of Montana

June 20, 1997

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

          Remanded: January 8, 1997



         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.


         Malingering. Even factoring out an IME doctor's testimony on remand from the Montana Supreme Court, the Workers' Compensation Court remained convinced that claimant was malingering, based in part on the Court's perception that claimant was untruthful and its finding of shortcomings in testimony from his physician.

         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:

Since the court's conclusion that Blythe was malingering was based partly on testimony to which there was no objection and partly on inadmissible testimony, a question remains as to what the court's findings of fact and conclusions of law would have been absent Dr. Rogers' IME. We will not substitute our judgment for that of the Workers' Compensation Court as to weight of evidence on questions of fact. Mennis v. Anderson Steel Supply (1992), 255 Mont. 180, 184, 841 P.2d 528, 530. Accordingly, we remand this matter to the Workers' Compensation Court for a reweighing of the evidence as to malingering; contrasting the testimony of Blythe's experts, including Dr. Stratford, with the testimony of EBI/Orion's remaining expert, Dr. Faust. [Emphasis added.]

(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.


         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:


         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:

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 recordkeeper, 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 clinical psychologist and professor of psychology at the University of Rhode Island. (Ex. 8 at 1-2.) He has several years of experience assessing and treating schizophrenic patients. (Tr. at 480-81.) 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.

         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. (Id. at 85.) His entry refers to a conversation he had that day with Michael Biggins (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 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:

[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 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.

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 at 84- 85.)
(2) Whispering, synthesizer sounds, and religious voices. (4/10/91) (Stratford Dep. I at 89; Ex. 2 at 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 at 95.)
(4) Grinding metallic music changing to beautiful music. (12/4/91) (Stratford Dep. I at 95; Ex. 2 at 98.)
(5) "The voice of God saying that time is short." (12-5-91) (Ex. 2 at 39.)
(6) Voices like on the radio. (1/20/92) (Stratford Dep. I at 96; Ex. 2 at 99.)
(7) Synthesizer music. (3/16/92) (Stratford Dep. I at 97; Ex. 2 at 100.)
(8) Pops, clicks and snaps but no voices. (4/27/92) (Ex. 2 at 138.)
(9) Angelic voices, singing. (8/3/92) (Id. at 39.)
(10) Voices like a "pentecostal speaking in tongue," along with music. (8/31/92) (Id. at 141.)
(11) Ongoing "radio hallucinations." (9/28/92) (Id. at 141.)
(12) Cartoon sounds, pops, clicks, snaps, artillery, music, and some human voices. ...

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